Thursday, January 21, 2016

Frivolous Change of Venue

Attorney actions have consequences. Sometimes it is just a matter of who the consequences affect directly and who indirectly. 

WorkCompCentral reported recently that an attorney in New York was sanctioned for "for making a frivolous change-of venue" request. Venue is a subject that confuses many people. They get it all intertwined with "jurisdiction," which has some relationship, but is a different topic. Venue is where the trial will occur. It is not about which judge will hear the case. It is not about which issues the workers' compensation judge has authority to decide. It is just about where the trial will occur. 

The Florida trial venue parameters are in Fla. Stat. §440.25(4)(d). The Florida Statute makes a venue distinction between accidents that occur in Florida and those that occur out-of-state. If the injury happens in Florida, "unless otherwise agreed to between the parties and authorized by the judge of compensation claims" the trial will occur "in the county where the injury occurred." 

The county of accident cannot be used when the injury occurs outside Florida. Florida workers' compensation judges are empowered by Florida statute. The authority we have is dependent upon Florida law, and can generally be exercised only in Florida. Therefore, the statute says: 

"If the injury occurred outside the state and is one for which compensation is payable under this chapter, then the final hearing may be held in the county of the employer’s residence or place of business, or in any other county of the state that will, in the discretion of the Deputy Chief Judge, be the most convenient for a hearing." 

So, if the injury occurs in Florida, the case will be assigned to the district responsible for the county in which the injury occurred. If the injury occurs outside of Florida, then the case will be assigned based on where the employer is located in Florida, or the Deputy Chief Judge must pick an appropriate county. 

There have been a fair number of lawyers over the years that ask a judge to move the venue of a case. Such a request is generally done by filing a motion, see Rule 60Q6.115.. All parties to a case might agree to change something in a case, that is a stipulation. Stipulations do not have to be approved by judges. Filing a stipulation might not result in an order and the order is what would move the case to another county/district. 

So, if the parties agree, a better tool is an "agreed motion" to change venue. It being a motion should prompt an order, and it being agreed should expedite its determination. If there is not agreement to change venue, then the appropriate tool is a simple motion. Rule 60Q6.115 would require that the moving party consult with the non-moving party and state in the motion that the non-moving party disagrees with the motion. 

It is important to understand that the Florida statute does not afford the assigned judge the unilateral authority to move the trial, the venue, of a case in which the injury occurred in Florida. In other words, if the injury occurred in Florida, and any party insists on the venue in the county where that occurred, that is where the trial will remain. The venue change is subject to both the authorization of the judge, and must be "agreed to between the parties." 

A motion to change the venue in Florida, when the accident occurred in Florida and when any party objects to the change, may very well be both impractical and a waste of time. There is more discretion for the judge when the accident occurred outside of Florida. 

In New York, as reported by WorkCompCentral, an attorney "filed a request that the hearing" occur in White Plains, NY. He asserted that this would be the "most efficient hearing point." The assigned judge denied the motion/request and restated the proper venue for the case" Brooklyn. The attorney "had previously "been advised that venue could not be changed for the convenience of an attorney." Additionally, the attorney's firm had previously been "sanctioned for making a frivolous request for change in venue." 

The assigned judge concluded that this request for venue change was likewise frivolous and imposed a penalty of $500.00. In New York, there is a workers' compensation board, which is somewhat similar to the former Florida Industrial Relations Commission. Decisions of workers' compensation judges in New York are appealed to the Board, and if a party remains dissatisfied the Board's decision, it can be appealed to a constitutional appellate court. 

The NY attorney appealed the imposition of a $500 penalty. The Workers' Compensation Board "upheld the judge's ruling and imposed an additional penalty of $500 for the frivolous appeal." Facing a total of $1,000 in penalty, the attorney decided to seek review by a constitutional court. The appellate court affirmed the Board's decisions, and the attorney will now pay the $1,000, in addition to the time and expense that has been spent on the Board and court appeals. 

A side note in the appellate court's opinion is worth noting. At the Board appeal, the attorney tried to provide more or different justification for the venue change. In other words, the request for venue change was made with one stated reason; after the penalty was imposed, on appeal, the attorney tried to add another reason. The Board did not allow or consider that addition. The appellate court noted that this refusal by the Board was within its discretion. As a general rule, appellate courts (or Boards) do not consider new arguments or evidence on appeal; they review arguments that were made at the trial level. These arguments made at the trial level are called "preserved" and appellate bodies are reluctant to review issues that are not preserved (or in effect they become trial courts of new issues instead of appellate bodies). 

Could this happen in Florida? There are two sections of the Florida Workers' Compensation Law that might be read, and a rule. 

Fla. Stat. §440.32(3) provides that every pleading (motion, stipulation, claim, etc.) must be signed. When an attorney signs, she/he is certifying that the information in the pleading "to the best of the signer’s knowledge," "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." 

Fla. Stat. §440.32(1) provides that if "proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings." This section provides some foundation for financial repercussion if a claim or motion is inappropriately pursued. A penalty in this regard would be the responsibility of the party, not the attorney. 

Fla. Stat.  §440.32(2) provides a potentially more costly penalty, in the form of costs and attorney's fees. This section, however, requires the conclusions that "the proceedings were maintained or continued frivolously," which is similar to the conclusion reached by the New York Judge and Board. If the proceedings were frivolous, then the statute may be the basis for penalty "against the offending attorney." If an order is entered under this statute, a "copy of the order assessing the penalty must be forwarded to the appropriate grievance committee." 

And, there is Rule 60Q6.125. This procedural rule governs the "failure to comply with the provisions of these rules or any order of the judge." Such failure "may subject a party or attorney to" a variety of sanctions, including "striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate." 

The New York Court concluded that the attorney there made a baseless motion or request to change venue. It noted that the attorney had unsuccessfully tried this process previously, and that he had "no reasonable basis for either the motion to change venue or the appeal to the board." Thus, the attorney is out the time and money expended litigating and appealing this issue, and must pay the $1,000 penalty for the frivolous request. 

An interesting case. It is instructive on venue in New York, and may be educational regarding venue in Florida. The analysis here is fairly rudimentary. 

(1) did the accident occur in Florida? If yes, the venue is the county where that occurred, unless the parties agree otherwise and the judge approves. The right tool to express agreement to change is a "joint" or "agreed" motion, and ultimately it is up to the assigned judge to approve or not that agreement to change.

(2) if the accident did not occur in Florida, then the initial assignment is made by the Deputy Chief judge. Any party, with agreement or not, could move to change that venue. And, again, it is up to the assigned judge to approve or not that agreement to change.

Could a party or attorney be sanctioned for filing an opposed motion to change venue for an accident that occurred in Florida? It seems possible. If the motion is "without reasonable ground" then the attorney might have to pay costs. If the motion is "maintained or continued frivolously," then the party (not the attorney) might be liable for attorneys fees and costs, and the attorney might be reported to The Florida Bar.

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