24 Fla. L. Weekly Supp. 112a
Online Reference: FLWSUPP 2402DELAInsurance — Automobile — Windshield repair — Venue — Where insurer’s claim that venue was not proper in Lee County because plaintiff repair shop does not have corporate office in that county was never substantiated with evidence, only by photocopies of documents attached to unsworn motion, trial court did not err in denying motion to transfer venue on that basis — Forum non conveniens — However, trial court abused it discretion in denying motion to transfer venue to Palm Beach County where it is undisputed that all critical witnesses reside and do business in that county
IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, vs. CLEAR VISION WINDSHIELD REPAIR, LLC a/a/o DELANO THOMPSON, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 15-18 AP. L.T. Case No. 14-3381 SC. February 2, 2016. Appeal from the County Court for Lee County; James R. Adams, Judge. Counsel: Douglas H. Stein, Coral Gables, for Appellant. Michael E. Chionopoulos, Fort Myers, for Appellee.
(PER CURIAM.) Appellee, Clear Vision Windshield Repair, LLC (hereinafter Clear Vision), filed suit in small claims court, alleging that Appellant, Imperial Fire & Casualty Insurance Co. (hereinafter Imperial), failed to pay insurance benefits to Clear Vision as assignee. Imperial filed a motion to dismiss, pleading in the alternative to transfer venue based on forum non conveniens. The trial court denied this motion. On appeal, Imperial argued that Lee County, Florida was not the proper venue under §47.051, Fla. Stat., or that the case should be transferred to Palm Beach County, Florida, due to forum non conveniens, pursuant to §47.122, Fla. Stat.
A motion to transfer the venue of a case based on §47.122, Fla. Stat., the forum non conveniens statute, is always an evidentiary question, which cannot be decided by unsworn pleadings or argument of counsel. See, e.g., Kinetiks v. Sweeney, 789 So. 2d 1221 (Fla. 1st DCA 2001) [26 Fla. L. Weekly D1795c]. Clear Vision’s unsworn complaint made a venue allegation under §47.051, Fla. Stat. that “Plaintiff maintains its corporate office in Cape Coral Lee County, Florida so venue is proper in Lee County, Florida.” Imperial’s unsworn motion to dismiss alleged that Lee County, Florida was an inconvenient forum because the critical witnesses reside and do business in Palm Beach County, Florida. Imperial filed in support of its motion two affidavits by employees of Imperial, which identified the critical witnesses in the case and stated their residence and business addresses in Palm Beach County, Florida. Clear Vision filed an unsworn “Response” to Imperial’s motion, which contained only argument by counsel.
The first basis to transfer venue stated in Imperial’s motion, namely that Clear Vision does not have its corporate office in Lee County, Florida, was never substantiated with evidence, and thus fails. Imperial attached photocopies of some documents to its unsworn motion, but photocopies attached to an unsworn motion are not evidence. Equally, Clear Vision’s unsworn complaint is not evidence, and Clear Vision did not file any affidavits in response to Imperial’s two affidavits filed in support of its motion. At the hearing on Imperial’s motion, no testimony or other evidence was proffered by either party, and there was no stipulation of facts agreed to by counsel on the record. Rather, the hearing consisted entirely of the argument of counsel. It appears, therefore, that the essential facts are not in dispute, and that the critical witnesses are in Palm Beach County, Florida. Accordingly, the trial court abused its discretion by denying the motion to transfer venue to Palm Beach County, Florida, and its order must be reversed under the authority of Eggers v. Eggers:
Under the forum non conveniens statute, a plaintiff’s forum selection is presumptively correct and the burden is on the defendant to show either substantial inconvenience or that undue expense requires change for the convenience of the parties or witnesses. See Government Employees Ins. Co. v. Burns, 672 So.2d 834 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D181a]; Vero v. Vero, 659 So.2d 1348 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2054a]. This court has instructed that when a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice. See Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D464a]. See also Hu v. Crockett (pointing out in forum non conveniens challenge that record contained various admissions and a deposition).
Frederick filed a sworn motion to transfer/dismiss and attached affidavits from prospective witnesses indicating they resided in Hillsborough County and that it would be a hardship if they had to travel to Citrus County to testify. Ellen countered with no sworn evidence on the relevant issues. Ellen’s unsworn response does not constitute evidence. See Toyota Tsusho America, Inc. v. Crittenden, 732 So.2d 472 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D1238a]. The trial court had before it only evidence that the more convenient forum is Hillsborough County. Under these circumstances, it was an abuse of discretion to fail to transfer venue to Hillsborough County under section 47.122.
Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D438a]. See, e.g. Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994) (“We have held that, in the absence of a stipulation, the trial court cannot make a factual determination based on an attorney’s unsworn statements”); State v. Brugman, 588 So. 2d 279 (Fla. 2d DCA 1991). A trial court, as well as this Court, is also precluded from considering as fact unproven statements documented only by an attorney. Schneider v. Currey, 584 So. 2d 86 (Fla. 2d DCA 1991). See also Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982) (“If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees”). See also, Florida Standard Jury Instructions in Criminal Cases 2.7 (“Please remember that what the attorneys say is not evidence”). See also Romeo v. Romeo, 907 So. 2d 1279, 1284 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1903a] (“Argument of counsel does not constitute evidence”); Kunsman v. Wall, 125 So.3d 868 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D813a] (“Regarding the remaining $2,471.40 for miscellaneous family expenses, the only evidence showing how these marital funds were spent was argument of counsel”).
Therefore, the trial court’s order is reversed. This matter is remanded with directions to the trial court to enter an order transferring venue in this case to Palm Beach County, Florida. (CORBIN, BRODIE, and LABODA, JJ., concur.)
