       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

    MARIA S. COHEN f/k/a MARIA RICHTER, Individually and as
Successor Co-Trustee and LISA BERMAN, Individually and as Successor
                            Co-Trustee,
                            Appellants,

                                    v.

  GABRIEL SCARNATO and PORTIA M. RINDOSH n/k/a PORTIA M.
                         RICCIO,
                        Appellees.

                             No. 4D18-3654

                             [April 10, 2019]

  Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case
Nos. PRC-16-1422, PRC-16-1525.

   Casey W. Mills of Casey W. Mills, P.A., Fort Lauderdale, for appellants.

   Gabriel Scarnato, Palm Coast, pro se.

PER CURIAM.

   In this non-final appeal, we review an order transferring two
consolidated trust disputes from Broward County to Flagler County under
section 47.122, Florida Statutes (2018). We reverse for two reasons: first,
because there was insufficent evidence that a change of venue was
necessary, and second, because the trial court failed to consider whether
Flagler County was a proper venue for the trust cases.

   In 1992, Portia Rindosh executed a will and revocable trust in Broward
County. She appointed herself as trustee and named her son, daughter,
and granddaughter as beneficiaries under the trust. She later resigned as
trustee, at which time her daughter and granddaughter became successor
co-trustees under the terms of the trust.

   The trust disputes began in 2016, after Portia amended the trust to
terminate her daughter and granddaughter as co-trustees and name her
son as the sole beneficiary of the trust. The daughter and granddaughter
filed a complaint against Portia and her son in Broward County, seeking a
declaratory judgment that Portia lacked the capacity to amend the trust.
Consequently, Portia filed a separate complaint against her daughter and
granddaughter alleging that they had mismanaged the trust. The two
complaints were consolidated.

   While the trust disputes were pending in Broward County, Portia
executed a new will and trust in Flagler County. She expressly revoked
the 1992 trust and thereby excluded her daughter and granddaughter as
beneficiaries. Portia died a few months later, and her son filed a petition
for administration of the new will in Flagler County. The daughter and
granddaughter objected to this petition and deposited the 1992 will in
Broward County. Neither will has been admitted to probate.

   Thereafter, the son moved to transfer the Broward County trust
disputes to Flagler County. The trial court recognized that Broward
County was a proper venue for the trust disputes but decided that they
should be transferred “in the interest of justice and judicial economy”
because Flagler County was the only proper venue for the administration
of Portia’s estate. The daughter and granddaughter appealed.

    Section 47.122 provides that “[f]or the convenience of the parties or
witnesses or in the interest of justice, any court of record may transfer any
civil action to any other court of record in which it might have been
brought.” The party seeking a transfer under this section must submit
affidavits or other evidence to show that a change of venue is necessary
for the convenience of the parties or witnesses or in the interest of justice.
See Cardelles v. Catholic Health Servs., Inc., 14 So. 3d 1025, 1027 (Fla. 4th
DCA 2009). Even after this showing is made, a court may transfer venue
only to a court where the action could have been filed initially. See McGee
v. McGee, 145 So. 3d 955, 958 (Fla. 1st DCA 2014); Vitale v. Vitale, 994
So. 2d 1242, 1243 (Fla. 4th DCA 2008).

   We generally review an order transferring venue under section 47.122
for an abuse of discretion. See Vitale, 994 So. 2d at 1243; Weinberg v.
Weinberg, 936 So. 2d 707, 708 (Fla. 4th DCA 2006). But “where there are
no disputed facts and the venue order turns on a question of law,” our
review is de novo. Weinberg, 936 So. 2d at 708.

   Here, the trial court erred in transferring the trust disputes to Flagler
County because there was insufficient evidence presented to show that a
change of venue was necessary for the convenience of the parties or
witnesses or in the interest of justice. See Cardelles, 14 So. 3d at 1027.
The son primarily argued that the trust disputes should be transferred

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because they cannot be resolved until the Flagler County court determines
whether the new will and trust are valid. However, this argument is
unpersuasive because any potential injustice can be avoided by abating
the trust cases until the will contest is resolved. See Fla. R. Civ. P.
1.260(a)(1); Schaeffler v. Deych, 38 So. 3d 796, 799-800 (Fla. 4th DCA
2010).

   The trial court also erred in transferring the trust disputes to Flagler
County without considering whether they could have been filed in that
venue initially. In its order the trial court primarily relied on our holding
in Pasquale v. Loving, 82 So. 3d 1205, 1207 (Fla. 4th DCA 2012), that
when a trust is incorporated by reference into a will, a party cannot
“challenge the validity of the trust without also contesting the will.”
However, the court’s reliance on Pasquale was misplaced because venue
was not at issue there. See id. No other basis for venue in Flagler County
can be determined from this record.

   For these reasons, we reverse the trial court’s order transferring venue
to Flagler County and remand for further proceedings consistent with this
opinion.

   Reversed and remanded.

MAY, LEVINE and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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