9 Fla. L. Weekly Supp. 210a
Insurance — Personal injury protection — Venue — Forum non conveniens — No abuse of discretion in transferring venue from Orange County to Collier County where accident occurred in Collier County, insured resides there, most of medical practitioners and almost every witness would be located there, and only evidence that insured submitted was affidavit claiming that he would use the testimony of an Orlando orthopedic surgeon — No error in basing decision to transfer venue on affidavits without allowing insured to cross-examine insurer’s affiant — Error to require insured to pay transfer costs where venue was proper in Orange County, albeit inconvenient — Where it is apparent from transcript that trial judge meant to order insurer rather than insured to pay transfer fees, it is not necessary to address argument that it was within court’s discretion to order insured to pay fees — Appellate attorney’s fees — Despite being the prevailing party on appeal, insurer is not entitled to appellate attorney’s fees because it filed for fees pursuant to section 57.105, and insured’s appeal was not frivolous or totally unsupportable — Insurer should have costs taxed in its favor under rule 9.400(a) if it timely files a motion with trial court
GARY H. STANEK, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-00-21. L.C. Case No. CCO-00-160. November 30, 2001. Appeal from the County Court for Orange County, Jerry L. Brewer, Judge. Counsel: Robert Melton, for Appellant. Dale T. Gobel, for Appellee.
(Before PERRY, MIHOK, and ROCHE, JJ.)
FINAL ORDER AND OPINION AFFIRMING IN PARTAND REVERSING IN PART
(PER CURIAM.) Appellant, Gary H. Stanek, seeks review of the trial court’s order granting Appellee State Farm Mutual Automobile Insurance Company’s (“State Farm”) Motion to Change Venue based upon forum non conveniens. Stanek also challenges the trial court’s order that he pay the transfer fees. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). After consideration of the record on appeal and the parties’ briefs, this Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320 and affirms the trial court’s order that venue be transferred. This Court reverses the trial court’s order that Stanek pay the transfer fees.
Stanek’s Complaint against State Farm alleged that the insurer had failed to pay personal injury protection benefits for an automobile accident that occurred in Collier County on December 8, 1997. State Farm filed a Motion to Transfer Venue. The motion asked that the lawsuit be transferred to Collier County, where Stanek resides, where the accident took place, and where State Farm claimed many of the medical providers are located. In support of its motion, State Farm filed a sworn affidavit from claims adjustor Lazaro Lopez which stated that in addition to many of the medical providers, “practically all of the potential witnesses to this case” are in Collier County and “virtually every material aspect of this claim occurred in Collier County.” The affidavit stated that the case should be transferred “to avoid undue burden and expense, and for the convenience of all interested parties and witnesses.”
In response, Stanek filed a motion pursuant to § 47.111, Florida Statutes, contesting State Farm’s allegations of inconvenient venue, plus a sworn affidavit. In those documents, Stanek asserted that venue was proper in Orange County, that he had retained an orthopedic surgeon in Orange County to testify, and that venue ought not to be transferred for State Farm’s convenience. A hearing was held before the county court on February 3, 2000, in which the parties traded accusations of forum shopping, but in which Stanek did not contest State Farm’s factual allegations pertaining to venue. The county judge stated that “everything about this case says Collier County, and I think that’s where the case ought to be.” He also said that State Farm would be responsible for paying transfer fees. Stanek’s attorney then protested that since there “was no live testimony,” there was “no evidence presented,” and requested an evidentiary hearing. The trial judge replied that an affidavit on the issue of forum non conveniens has always been sufficient, and noted that there was nothing in the record that disputed the allegations in State Farm’s affidavit. The trial judge also stated that there would be no further hearings or evidence taken on the matter.
On February 3, 2000, the trial court issued an order to transfer the case to Collier County. However, the order stated that “Plaintiff” would bear the costs of transfer.
The standard of review for an order on a motion to transfer venue is abuse of discretion. See, e.g., Ground Improvement Techniques, Inc., v. Merchants Bonding Co., 707 So. 2d 1138 (Fla. 5th DCA 1998).
Section 47.051, Florida Statutes, provides that actions against domestic corporations “shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” Section 47.122, Florida Statutes, known as the forum non conveniens statute, 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.”
In Eggers v. Eggers, 776 So. 2d 1096 (Fla. 5th DCA 2001), the Fifth District pointed out the distinction between improper venue and inconvenient venue. In cases involving challenges to venue as improper, a plaintiff must show that venue is proper. But that rule does not apply here. Clearly, venue is proper in Orange County under § 47.051, Florida Statutes, because State Farm does have offices here. Since Collier County is also a proper venue, the issue on appeal is whether the trial court abused its discretion in finding venue preferable there. Eggers, 776 So. 2d at 1098.
Where venue is proper in more than one county, a plaintiff’s choice of forum is “presumptively correct.” Id. However, the plaintiff’s choice will not be honored where the defendant meets the burden of showing “either substantial inconvenience or that undue expense requires change for the convenience of the parties or witnesses.” Id.; see also Government Employees Ins. Co. v. Burns, 672 So. 2d 834 (Fla. 3d DCA 1996); Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995); Hamm v. Ambassador Ins. Co., 456 So. 2d 966 (Fla. 5th DCA 1984). Ruling on the sufficiency of the evidence is within the “sound discretion” of the trial court and such rulings will not be disturbed absent a clear showing of abuse of discretion. Hertz Corp. v. Rentz, 326 So. 2d 216 (Fla. 4th DCA 1976).
Although sworn affidavits or other evidence normally are required for a defendant to meet the burden of showing forum non conveniens, the Fifth District has held that an exception to this requirement occurs where “the complaint itself shows on its face that forum non conveniens transfer is warranted.” Ground Improvement, 707 So. 2d at 1139. In Ground Improvement, the Fifth District found that the dismissal for forum non conveniens was based on the pleadings and “undisputed facts,” and was “well within the discretion of the lower court.” Id.
Here, State Farm argues that when determining which county is the most convenient forum under § 47.122, Florida Statutes, Florida courts look to the following factors: where the cause of action accrued; where the parties are located; and where the witnesses are located. State Farm claims that these factors all weigh in favor of Collier County as the most convenient venue, and asserts that Florida courts will consider it an abuse of discretion not to transfer venue where the only link to plaintiff’s chosen forum is that the defendant corporation has an office in that county, and where there is record evidence supporting the transfer of venue for the convenience of the parties or witnesses. State Farm cites to Hughes Supply, Inc. v. Pearl, 403 So. 2d 614 (Fla. 4th DCA 1981), and Hertz, 326 So. 2d 216.
State Farm is correct. In Hughes, the only link the plaintiff had to the selected forum was that the defendant had a business office there (and that office was not involved in the subject matter of the case). The court ruled that the record clearly showed forum non conveniens, and due to the “minimal contacts” with the chosen forum, it was an abuse of discretion to deny the requested change of venue. Hughes, 403 So. 2d at 615. In Hertz, the subject accident occurred in Jackson County, witnesses lived in Jackson County, investigative officers were in Jackson County, and plaintiffs got medical treatment in Jackson County. The only connection with Orange County was that the corporation had an agent there. The court held that it was an abuse of discretion to deny the motion for change of venue. Hertz, 326 So. 2d at 217. Moreover, in the 2001 Fifth District case, Eggers, 776 So. 2d at 1098, the court held that it was an abuse of discretion not to grant a change of venue under the forum non coveniens statute when the defendant had presented sworn affidavits from prospective witnesses and the plaintiff had not.
Here, it is undisputed not only that the accident occurred in Collier County and Stanek resides there, but also that most of the medical practitioners and almost every witness would be located there. The only evidence pertaining to venue that Stanek submitted to the trial judge was his affidavit claiming that he would use the testimony of an Orlando orthopedic surgeon. Following the reasoning in Eggers, since the facts as submitted by State Farm were not controverted by the plaintiff here, it would have been an abuse of discretion not to transfer the case at bar. See id.
Florida courts leave the forum non conveniens decision to the discretion of the trial judge and will not reverse the decision unless there was no record evidence supporting it.1 Since that is not the case here, the trial judge did not abuse his discretion in ordering transfer of the case.
Stanek also alleges that the evidentiary hearing below was insufficient under § 47.111, Florida Statutes, which provides: “Change of venue; denial of motion. — The adverse party has the right to deny the allegations of the motion. The court shall hear the evidence on the motion.” Stanek alleges that State Farm failed to “sufficiently demonstrate how it was inconvenienced” by venue in Orange County, and he wanted to challenge State Farm’s allegations of improper and inconvenient venue by cross-examining witnesses about them. Stanek claims that he was denied due process because the trial court based its decision on State Farm’s “untested affidavit.” Stanek cites Hewitt Contracting Co., Inc., v. Joyner Electric, Inc., 616 So. 2d 190 (Fla. 5th DCA 1993) and Andre Pirio Associates, Inc. v. Parkmount Properties, 453 So. 2d 1184 (Fla. 2nd DCA 1984). These cases are distinguishable. In Hewitt, the court merely held that the plaintiff was entitled to notice that the court intended to transfer venue, and an opportunity to be heard; the court did not discuss the sufficiency of affidavits as evidence. Pirio did not involve transfer of venue at all (it concerned the question of how much testimony is required before a court sets a bond to maintain a lis pendens). For the reasons already discussed, Stanek’s general argument that affidavits are insufficient as evidence of inconvenient venue is not well-taken. And here, the trial court held a hearing on the Motion for Change of Venue of which Stanek had proper notice and in which he had an opportunity to be heard. When Stanek’s counsel asked for an “evidentiary” hearing, the trial judge replied that he considered that hearing to be evidentiary. The affidavits were presented and taken into the record. They properly formed the basis for the trial judge’s decision. Since the Fifth District allows transfer of venue solely on the basis of allegations on the face of a complaint, see Ground Improvement, 707 So. 2d 1138, it cannot be said that the trial judge was required to allow Stanek to cross-examine State Farm’s affiant.2
Stanek prevails on one point. He is correct that the trial court’s order erred in assessing him for the transfer costs, since § 47.091, Florida Statutes, provides that the movant will pay unless venue originally was improper. Since State Farm has offices and does transact business in Orange County, venue is proper here, albeit inconvenient. State Farm argues that it is within the trial court’s discretion to order Stanek to pay the fees; however, this Court finds it unnecessary to rule on this point because it is apparent from the hearing transcript that the trial judge meant to order State Farm to pay.
ATTORNEY’S FEES AND COSTS
Stanek is not the prevailing party on appeal because he did not prevail on the significant issue on appeal. Therefore, he is not entitled to attorney’s fees or costs. Despite being the prevailing party, State Farm is not entitled to appellate attorney’s fees under Florida Rule of Appellate Procedure 9.400(b), because it filed for such fees pursuant to § 57.105, Florida Statutes, which requires that the losing party’s case be frivolous or unsupported by material facts or law. This Court does not find that Stanek’s appeal was frivolous or totally unsupportable.
However, under Florida Rule of Appellete Procedure 9.400(a), State Farm should have costs taxed in its favor if it timely files a motion with the lower tribunal “within 30 days after issuance of the mandate” in this matter. Id.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s order granting State Farm’s Motion to Change Venue is AFFIRMED; the trial court’s order to Stanek to pay the venue transfer fees is REVERSED. (PERRY, MIHOK, and ROCHE, JJ., concur.)
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1In Dalomba-Herrera v. Bush, 645 So. 2d 117 (Fla. 5th DCA 1994), the Fifth District reversed an order transferring venue that was supported only by argument and assertions by counsel, not by necessary affidavits or sworn testimony. Similarly, this Court reversed a forum non conveniens decision and transfer order where defendant presented no evidence whatsoever of inconvenience, in Heischuber v. A & B Marketing, Inc., 6 Fla. L. Weekly Supp. 246a (Fla. 9th Cir. Ct. Feb. 23, 1999).
2Stanek claims that State Farm’s affidavit was legally insufficient because it “fails to swear to the truth of the allegations” contained in it, and because the affiant had no first-hand knowledge as to the truth of the allegations. This argument fails because the affidavit was sworn and notarized, and because the asserted facts pertaining to venue — the location of the accident, insured, many of the doctors and several witnesses — were undisputed.
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