NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D1378b

27 Fla. L. Weekly D474a

Venue — State agencies — Home venue privilege — Exceptions — Where plaintiff obtained judgment against viatical settlement provider in Broward County, and initiated proceedings supplementary by impleading Department of Insurance as a defendant and seeking to levy on bond posted by viatical settlement provider, trial court had discretion to dispense with Department’s home venue privilege — Because Department was named as an impleaded defendant in the original action already proceeding in Broward Circuit Court, and was sued in its limited capacity as a bond holder, transfer of case would result in new and additional litigation in a different court and would do little to further the policy considerations of the home venue privilege

STATE OF FLORIDA, DEPARTMENT OF INSURANCE, Appellant, v. ACCELERATED BENEFITS CORPORATION and GLORIA GRENING WOLK, Appellees. 4th District. Case No. 4D01-3835. Opinion filed February 27, 2002. Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Leonard L. Stafford, Judge; L.T. Case No. 99-6131 (02). Counsel: Michael H. Davidson, Tallahassee, for appellant. Eric L. Stettin of Kuvin & Stettin, P.A., Fort Lauderdale, for appellee Gloria Wolk.

(STEVENSON, J.) This is an appeal from a non-final order of the trial court denying the Florida Department of Insurance’s motion to dismiss or transfer venue to Tallahassee. We affirm.

Appellee, Gloria Wolk, obtained a money judgment against Accelerated Benefits Corporation (ABC), a viatical settlement provider. Wolk subsequently initiated proceedings supplementary under section 56.29, Florida Statutes (2000), by impleading the Department of Insurance as a defendant and seeking to levy on a bond ABC previously posted under the statutes controlling such settlement providers.¹ The Department of Insurance filed its motion to transfer venue relying on the common law “home venue privilege” of a state agency to have actions against it brought in the county where that agency is headquartered. See Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 363 (Fla. 1977); Barr v. Fla. Bd. of Regents, 644 So. 2d 333 (Fla. 1st DCA 1994). After a hearing, the trial court denied the motion.

In Florida, the so-called “home venue privilege” was judicially created and derived from the common law rather than by legislative act. See Smith v. Williams, 35 So. 2d 844, 847 (Fla. 1948). The home venue privilege “promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” Carlile, 354 So. 2d at 364. Historically, Florida courts had acknowledged two exceptions to the home venue privilege: (1) the sword wielder doctrine, holding that if the state agency action complained of has been performed or is being performed in a given county, or if the threat of agency action in that county is real and imminent, venue may lie in that county; and (2) where the home venue privilege is waived by statute. See Id. at 365-66; Barr, 644 So. 2d at 335-36. A third exception, where the governmental body is sued as a joint tortfeasor, was later recognized in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 (Fla. 1983).

In Grice, the court reasoned that, where a governmental entity is sued as a joint-tortfeasor, strict adherence to the home venue privilege could lead to duplicative litigation and actually undermine the policy considerations underlying the privilege:

Modern methods of communication and transportation have weakened the policy reasons supporting the privilege while current crowded court docket conditions have strengthened the policy reasons for avoiding duplicative litigation if possible.

. . . .

Frequently, [the beneficial purposes of the home venue privilege] are not furthered when the governmental defendant is sued as a joint tortfeasor. In such cases the district courts, in attempting to follow the dictates of Carlile, have been ordering severance of lawsuits that would normally be tried in a single proceeding. The result, of course, is separate proceedings requiring increased use of public resources. The benefit of money saved by state agencies and subdivisions by not having to defend against lawsuits filed outside their home counties must now be weighed against the increased costs incurred in the operation of the courts, costs which are paid in substantial part by all taxpayers. Therefore, the objective of minimizing public expenditures in the operation of the courts is not furthered when the home venue privilege results in multiple lawsuits. We therefore hold, as did the district court, that the home venue privilege for government entities is not absolute.

438 So. 2d at 394-95 (citations omitted and emphasis added). The court went on to hold that a trial court has discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. See id.

Likewise, in the instant case, where the Department of Insurance was added as an impleaded defendant in proceedings supplementary, we conclude that the trial court had discretion to dispense with the home venue privilege. Appellate courts have consistently held that proceedings supplementary under section 56.29 are a continuation of the initial proceeding and that “venue in the case does not shift from jurisdiction to jurisdiction during such proceeding, but remains with the court which entered the judgment.” Schwartz v. Capital City First Nat’l Bank, 365 So. 2d 181, 183 (Fla. 1st DCA 1978); see also Kraft Foodservice, Inc. v. Thunder Boat Row & Assocs., Inc., 700 So. 2d 181 (Fla. 4th DCA 1997). Proceedings supplementary under section 56.29 were designed to give the circuit courts broad powers to subject all property of a defendant in execution to the power of the court, “ `whether in the name or possession of third parties or not.’ ” Schwartz, 365 So. 2d at 183 (quoting State v. Viney, 163 So. 57 (Fla. 1935)).

The policy reasons behind the home venue privilege would not be well served by strict application of the rule here. The Florida Department of Insurance was named as an impleaded defendant in the original action already proceeding in Broward Circuit Court, and was sued in its limited capacity as bond-holder. Transfer of venue in this case would result in new and additional litigation in a different court and would do little to further the policy considerations of the home venue privilege. Here, the trial court did not abuse its discretion in applying the principle that venue in supplementary proceedings remains where venue began in the underlying action.

AFFIRMED. (WARNER and MAY, JJ., concur.)

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¹Under section 56.29, the plaintiff-judgment creditor may join a third party as an additional defendant. In this instance, since the original defendant-judgment debtor is not making a claim against the third party, the newly joined party is an “impleader defendant,” and not a “third party defendant.” See Patterson v. Venne, 594 So. 2d 331, 332 n.4 (Fla. 3d DCA 1992).