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 
2

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 
3

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.