Fla. Health Sciences Center v. Elsenheimer, 2D06-0657.

• Decision Date: 02 March 2007
• Docket Number: No. 2D06-1663.,No. 2D06-0657.,No. 2D06-1159.,2D06-0657.,2D06-1159.,2D06-1663.
• Citation: 952 So.2d 575
• Parties: FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital, Appellant, v. John T. ELSENHEIMER and Frank Jackson, Individually and on behalf of themselves and all others similarly situated, Appellees.
• Court: Florida District Court of Appeals

952 So.2d 575

FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital, Appellant, v. John T. ELSENHEIMER and Frank Jackson, Individually and on behalf of themselves and all others similarly situated, Appellees.

No. 2D06-0657.

No. 2D06-1159.

No. 2D06-1663.

District Court of Appeal of Florida, Second District.

March 2, 2007.

Edward J. Carbone and Blake J. Delaney of Buchanan Ingersoll PC, Tampa, for Appellant.

Mark C. Menser of Viles & Beckman, LLC, Fort Myers, for Appellees.

Kimberly A. Ashby and Kirk Davis of Akerman Senterfitt, Orlando, for Amicus Curiae Florida Hospital Association.

SILBERMAN, Judge.

Appellees John T. Elsenheimer and Frank Jackson (the Plaintiffs) brought this action against Appellant Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital (the Hospital), concerning its billing and collection practices with regard to uninsured patients. In these consolidated appeals, the Hospital challenges a nonfinal order denying its motion to transfer venue pursuant to section 47.122, Florida Statutes (2005), and two nonfinal orders granting class certification. We affirm the venue order, treat the issue regarding the first certification order as moot, reverse the second certification order, and remand for an evidentiary hearing regarding class certification.

The Plaintiffs reside in Charlotte County, Florida. On April 5, 2004, Elsenheimer was involved in a swamp buggy accident, suffering serious injury to his skull. He was transported from Charlotte County to the Hospital, which is located in Hillsborough County, for emergency treatment. Elsenheimer was uninsured but was eligible for Medicaid. Elsenheimer's father, Frank Johnson, was responsible for the medical bills his son incurred because Elsenheimer was a minor at the time of the accident. Shortly after the accident, Elsenheimer reached the age of majority. The Hospital billed approximately $110,000 for Elsenheimer's treatment and twelve-day hospital stay. The Hospital engaged in collection efforts in Charlotte County against the Plaintiffs, characterized by the Plaintiffs as "a campaign of harassment." The Hospital ultimately submitted Elsenheimer's bills to Medicaid for payment. After payment by Medicaid of a portion of the bills, the Hospital wrote off the remaining balance. The Plaintiffs made no payment to the Hospital.

The Plaintiffs filed an amended class action complaint against the Hospital,¹ and the operative pleading is the second-amended class action complaint, dated August 31, 2005. The second-amended complaint alleges claims under the Florida Consumer Collection Practices Act, sections 559.55-.785, Florida Statutes (2004). In count one, entitled "Improper Debt Collection," the Plaintiffs allege under section 559.72 that the Hospital "has attempted to collect non-existent or exaggerated debts from the Plaintiffs." In count two, entitled "Illegal Collection Practices," the Plaintiffs allege that the Hospital engaged in collection tactics intended to harass the Plaintiffs and force them to pay an alleged debt that was not owed. In count three, the Plaintiffs seek injunctive relief to compel compliance with chapter 559 and to prohibit the Hospital from attempting to collect "illegal and unauthorized charges for health care." In count four, entitled, "Equitable Relief: Disgorgement of Illegally Collected Funds," the Plaintiffs allege that the Hospital "has routinely and systematically collected exorbitant, exaggerated fees from indigent, uninsured or underinsured patients for debts that were not owed, including overcharges for services and debts covered by Medicaid or other programs." On that basis, the Plaintiffs seek an accounting and the "return of all illegally collected funds."

MOTION TO TRANSFER VENUE

In September 2005, the Hospital filed a motion to transfer venue from Charlotte County to Hillsborough County pursuant to section 47.122, Florida Statutes (2005). In support of the motion, the Hospital filed an affidavit by its Director of Patient Accounts, Anthony Escobio.² Following a hearing, the trial court denied the motion.

We reject without discussion the Plaintiffs' contention that the Hospital waived its venue argument by engaging in discovery after the trial court denied its motion to transfer venue. We also reject the Plaintiffs' contention on appeal that the motion to transfer venue was untimely pursuant to Florida Rule of Civil Procedure 1.061. That rule addresses motions to dismiss "on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida." Fla. R. Civ. P. 1.061(a). A motion under the rule "shall be served not later than 60 days after service of process on the moving party." Fla. R. Civ. P. 1.061(g).

In its motion, the Hospital did not seek dismissal under rule 1.061 to a jurisdiction outside of Florida. Instead, the Hospital sought a transfer of venue to another Florida county based on "the convenience of the parties or witnesses or in the interest of justice," as provided for in section 47.122.³ Thus, rule 1.061 is not controlling because it does not apply to motions to transfer venue within Florida under section 47.122. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195, 1197 (Fla. 2d DCA 1996) (acknowledging that the analysis applicable to a motion made pursuant to rule 1.061 does not apply to a motion to transfer venue within Florida pursuant to section 47.122); John Christen Corp. v. Maita, 571 So.2d 24, 25 n. 1 (Fla. 2d DCA 1990) (observing that section 47.122 contains no time limitation).

With respect to the merits of the Hospital's venue motion, the Hospital does not argue on appeal that Charlotte County is not a proper venue for this lawsuit. Rather, it contends that the trial court erred in denying its motion to transfer venue to Hillsborough County. Section 47.122 provides, "For 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." A trial court's decision on whether to change venue under section 47.122 is subject to an abuse of discretion standard of review. See Darby v. Atlanta Cas. Ins. Co., 752 So.2d 102, 103 (Fla. 2d DCA 2000); PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999).

In Darby, this court recognized that "[w]hen deciding a venue issue, a plaintiff's venue selection is not the paramount consideration; but `it is a meaningful one in assessing the convenience of the parties.'" 752 So.2d at 103 (quoting J.L.S. v. R.J.L., 708 So.2d 293, 295 (Fla. 2d DCA 1998)). With respect to the three statutory factors of convenience of the parties, convenience of the witnesses, and the interests of justice, the convenience of the witnesses is the most important factor. Morrill v. Lytle, 893 So.2d 671, 673 (Fla. 1st DCA 2005). But, "for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony." Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983). To overcome a plaintiff's venue choice, the defendant must submit affidavits or other sworn proof. Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29, 30 (Fla. 2d DCA 1992); Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001); Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 4th DCA 1995).

The Hospital relies upon Eggers to argue that because it had filed the only sworn proof concerning venue, consisting of Escobio's affidavits, the trial court abused its discretion in denying the motion to transfer. In Eggers, the defendant submitted a sworn motion and affidavits from ten prospective witnesses in Hillsborough County. The plaintiff filed an unsworn response stating that she was eighty-seven years old and that the change in venue would be a hardship for her and her witnesses who all resided in Citrus County. The Fifth District stated that the plaintiff's unsworn response was not evidence and that the trial court had before it only evidence that Hillsborough County was the more convenient forum. 776 So.2d at 1098. The Fifth District concluded that the trial court had abused its discretion and reversed the denial of the motion to transfer venue under section 47.122. Id.

Here, the Hospital relied on Escobio's affidavits in support of its motion to transfer venue. The affidavits state that Hillsborough County is the Hospital's "residence" and that it operates its facility there; that its assets are located and its records are maintained in Hillsborough County; that its employees are based in Hillsborough County; that the overwhelming majority of the potential witnesses and the overwhelming majority of records, data, and evidence believed to be relevant to its billing and collection practices regarding Elsenheimer and other medically indigent patients who are eligible for Medicaid benefits are located in Hillsborough County; and that over 70% of members of one portion of the putative class and over 85% of the members of another portion of the putative class resided in Hillsborough County at the time of their admission to Tampa General Hospital.

Notably, although the affidavits speak broadly about potential witnesses and potentially relevant records, the affidavits are significantly less detailed than the affidavits that were submitted in Eggers. There, the defendant's sworn motion stated that venue was more appropriate in Hillsborough County because nineteen witnesses resided there. 776 So.2d at 1097. Affidavits from ten of the prospective witnesses were also filed, setting forth "the gist of the relevant knowledge of the witnesses." 776 So.2d at 1098 n. 2.

Escobio's affidavits do not identify the potential witnesses from Hillsborough County, describe their anticipated testimony, or establish the relevance of their anticipated testimony. Thus, the trial court did not know whether one or two Hillsborough County...