7 Fla. L. Weekly Supp. 582a
Insurance — Personal injury protection — Medical provider/assignee’s action against insurer — Venue — Forum non conveniens — No abuse of discretion in transferring venue from Orange County based on forum non conveniens where, in answers to interrogatories and response to insurer’s request for admissions, plaintiff stated that accident occurred, insured resided, and medical treatment was rendered in Polk County, and that working address for employee, officer, director, or owner with most knowledge of bills at issue was located in Hillsborough County
DR. ROBERT TANNENBAUM, D.C., P.A. d/b/a TANNENBAUM CHIROPRACTIC CENTERS, as assignee of LORENZO CARSON, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA199-6. Lower Ct. Case No. SCO98-6328. May 15, 2000. Appeal from the County Court for Orange County, Carolyn B. Freeman, Judge. Counsel: Brian T. Forman, for Appellant. Zimmerman, Shuffield, Kiser & Sutcliffe, P.A. Eric P. Gibbs, for Appellee.
(BEFORE EVANS, BRONSON and BAKER, JJ.)
ORDER AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant, Dr. Robert Tannenbaum, D.C., P.A. d/b/a Tannenbaum Chiropractic Centers, appeals the lower court’s order granting Appellee, Nationwide Mutual Insurance Company’s (“Nationwide”), Motion for Change of Venue. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(B) and 9.130(a)(3)(A).
Appellant filed a Complaint against Nationwide on September 30, 1997 for failure to pay personal injury protection (“PIP”) benefits on behalf of Lorenzo Carson pursuant to a policy of insurance issued to Carson. Nationwide filed a Motion to Dismiss to Compel Arbitration and for Change of Venue on October 26, 1998. Appellant filed a Memorandum in Opposition to Defendant’s Motion to Change Venue. In that Memorandum, Appellant argued that a change of venue was inappropriate. Appellant also filed “Plaintiff’s Denial of Defendant’s Allegations in Defendant’s Motion to Dismiss to Compel Arbitration and for Change of Venue” citing section 47.111, Florida Statutes and requesting an evidentiary hearing.
Next, Appellant filed a Motion for Protective Order requesting the opportunity to depose Nationwide’s corporate representative who would testify as to the basis for changing venue. Nationwide filed a Notice of Withdrawal of its Motion to Dismiss to Compel Arbitration and for Change of Venue filed October 26, 1998. Nationwide then filed a Motion to Dismiss arguing that Nationwide was not properly named in the Complaint, that the Complaint failed to state a cause of action because various exhibits were illegible or incomplete and that the dispute was properly subject to arbitration. Nationwide also filed a Motion for Change of Venue. Appellant filed a “Plaintiff’s Denial of Defendant’s Allegations in Defendant’s Motion for Change of Venue” and a Motion for Protective Order on December 16, 1998. After a hearing on January 7, 1999, the lower court rendered its Order on Defendant’s Motion for Change of Venue, granting said motion and transferring venue to Hillsborough County, Florida on January 22, 1999. Appellant filed a Notice of Appeal of a Non-Final Order on January 26, 1999.
It is within the sound discretion of the trial court to change the venue of a trial and the trial court’s decision should not be disturbed absent a demonstration of a palpable abuse or grossly improvident exercise of discretion. See Tindall v. Smith, 601 So. 2d 627 (Fla. 2d DCA 1992); Hu v. Crockett, 426 So. 2d 1275 (Fla. 1st DCA 1983); Fla. R. Civ. P. 1.061(a). Where venue is proper in more than one county, the choice of forum rests with the plaintiff. See P.V. Holding v. Tenore, 721 So. 2d 430, 431 (Fla. 3d DCA 1998). A plaintiff’s choice of forum is not paramount and a plaintiff’s venue privilege will not be honored where the convenience of the parties or witnesses, or the interests of justice, require the action be transferred. Id.
Section 47.122, Florida Statutes, provides that “[f]or the convenience of the parties or witnesses or in the interests of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” Florida Rule of Civil Procedure 1.061(a) provides that:
An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when: (1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case; (2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice; (3) if the balance of private interests is at or near equipose, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and (4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
The party seeking to change of venue based upon forum non conveniens has the burden of proof. See Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995); Hamm v. Ambassador Insurance Company, 456 So. 2d 966 (Fla. 5th DCA 1984).
Appellant makes two arguments in its Initial Brief. First, Appellant argues that Nationwide failed to demonstrate substantial inconvenience or undue expense at the hearing before the trial court. Second, Appellant argues that the trial court erred in entering an order transferring venue without having an evidentiary hearing as required by section 47.111, Florida Statutes.
Initially, the Court notes that Appellant failed to provide a transcript of the hearing before the trial court on January 7, 1999. On that basis alone, the trial court’s order must be affirmed because it comes to this Court clothed with the presumption of correctness. See Hamm v. Ambassador Insurance Company, 456 So. 2d 966 (Fla. 5th DCA 1984).1 The Court also finds, however, that the available record evidence demonstrates that the trial court did not abuse its discretion when it transferred venue based on forum non conveniens.
In its sworn answers to interrogatories and response to Nationwide’s request for admissions, Appellant stated that the subject accident occurred at the intersection of Highlands Road and Southern, in Polk County. Appellant also indicated that the insured resided in Polk County and that the medical treatment that is the subject of this suit was rendered in Polk County. Appellant stated that the working address for the employee, officer, director or owner with the most knowledge of the bills at issue in this case was located in Hillsborough County. Thus, the Court finds that it was not an abuse of discretion for the trial court to grant the Motion for Change of Venue.
Appellant also claims that it was denied an evidentiary hearing on the Motion for Change of Venue after demanding one pursuant to section 47.111, Florida Statutes. The record reflects that a hearing was held in this matter, however, because Appellant has failed to provide a transcript of this hearing, the Court is unable to determine the exact nature of that hearing. The Court finds that Appellant has not demonstrated reversible error.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Order on Defendant’s Motion for Change of Venue is AFFIRMED. (EVANS, BRONSON and BAKER, JJ., concur.)
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1This Court did issue an Order to Comply on November 10, 1999, and an Amended Order to Comply on March 9, 2000, giving Appellant an opportunity to supplement the record with the transcript of the hearing if one was available. However, Appellant failed to respond to either Order.
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