10 Fla. L. Weekly Supp. 227a
Insurance — Personal injury protection — Transfer within county court system — Abuse of discretion to grant motion to transfer 17 lawsuits from one justice center to another within county court system on the ground of convenience to plaintiff’s substitute counsel and billing manager — Plaintiff which made choice of forum in initially filing suits will not later be heard to complain that forum is no longer convenient — Moreover, nothing in record supports transfer, motion to transfer was legally insufficient and untimely, and allowing transfer would encourage forum shopping within county court system
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. NORTH DADE NEUROLOGICAL CONSULTANTS, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-018 AP. L.T. Case No. 00-773304. February 25, 2003. On appeal from the County Court for Miami-Dade County, the Honorable Cristina Pereyra-Shuminer presiding. Counsel: Luis N. Perez, Perez, Goran & Rodriguez, P.A., for Appellant. Andrew D. Wyman, Marks & Fleischer, P.A., for Appellee.
(FREDRICKA G. SMITH, ELEANOR L. SCHOCKETT, and HENRY LEYTE-VIDAL, JJ.)
(SCHOCKETT, J.) Appellee, North Dade Neurological Consultants, Inc. (“North Dade”), through its former attorney filed 17 personal injury protection (“PIP”) lawsuits against Appellant, Progressive Express Insurance Company (“Progressive”) at the County Court located at the South Dade Justice Center (“SDJC”). North Dade fired its original law firm and Marks & Fleischer (“Marks”) were substituted as counsel of record. Marks is located in Ft. Lauderdale, Florida.
North Dade filed a Motion to Transfer1 the 17 PIP lawsuits to the North Dade Justice Center (“NDJC”) on the basis of convenience to Marks and to North Dade’s billing manager, Dr. Alan Hirschenson (“Hirschenson”) who would be called as a witness in these cases and had relocated his office to Hollywood, Florida. In the Motion, North Dade alleged that, as plaintiff in the matter, it was entitled to choose its forum and that no one would be prejudiced by the granting of its motion. North Dade’s Motion contained no supporting affidavit and was otherwise unverified.
In Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), the Florida Supreme Court held that: “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” “The standard of review upon appeal is abuse of discretion and the trial court’s decision will not be disturbed if abuse cannot be demonstrated.” Jensen v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 468 (Fla. 5th DCA 2001). See Peterson, Howell & Heather v. O’Neill, 314 So. 2d 808 (Fla. 3d DCA 1975).
Progressive alleges that the trial court abused its discretion in granting North Dade’s Motion to Transfer. We agree. When North Dade, as the plaintiff, initially filed its 17 lawsuits at the SDJC it made its choice as to forum. Having made the initial decision to so file, North Dade will not later be heard to complain that the SDJC is no longer convenient. Moreover, nothing in the record supports the transfer of these cases. We further find that the Motion to Transfer was legally insufficient and untimely. Finally, allowing the Motion to Transfer to stand would encourage forum-shopping within the County Court system.
Given the preceding, we conclude that the court below abused its discretion in granting North Dade’s Motion to Transfer. Accordingly, we reverse and remand this matter for further proceedings consistent herewith. (SMITH and LEYTE-VIDAL, JJ., CONCUR.)
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1This case is not a change of venue matter. This is simply a transfer within the county court system.
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