Government Employees Ins. Co. v. Burns

• Decision Date: 17 January 1996
• Docket Number: No. 95-779,95-779
• Citation: Government Employees Ins. Co. v. Burns, 672 So.2d 834 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D181 GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Robert A. BURNS and Felisha Burns, Appellees.
• Court: Florida District Court of Appeals

Page 834

672 So.2d 834

21 Fla. L. Weekly D181

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Robert A. BURNS and Felisha Burns, Appellees.

No. 95-779.

District Court of Appeal of Florida Third District.

Jan. 17, 1996.

Opinion on Rehearing May 1, 1996.

Sparkman, Robb, Nelson & Mason, and Richard M. Nelson and John W. Reis, Miami, for appellant.

Maland & Ross, and Lauri Waldman Ross, Miami, for appellees.

Before COPE, GERSTEN, and GODERICH, JJ.

GERSTEN, Judge.

Appellant, Government Employees Insurance Company (the "defendant"), appeals the trial court's sua sponte order transferring venue in a negligence action brought by appellees, Robert A. Burns and Felisha Burns (the "plaintiffs"). The plaintiffs cross-appeal the same order. We reverse because a trial court does not have authority to transfer a case from a proper venue on grounds of forum non conveniens without a challenge by either party.

The plaintiffs filed a negligence action against the defendant, seeking damages for an automobile accident that occurred in Escambia County. The plaintiffs sued in Dade County where the defendant does business. The defendant did not object.

At a hearing on a motion to permit neurological testing, the trial court announced it would sua sponte transfer the case from Dade County to Escambia County. Neither party had challenged venue by motion or pleading.

Although the plaintiffs argued against the transfer, the court stated: "I just don't see why the taxpayers should have the burden of trying a case of an accident that happened in Pensacola, Escambia County" and "For[um] non-covenien[s] is something that the Court can do on its own motion; but I don't think that this is a convenien[t] for[um] for it. I have fourteen hundred cases to try." The trial court then entered an order stating that "this Court on its own Motion based upon forum non conveniens hereby transfers this action to Escambia County, Florida."

It is well established that where venue is proper in more than one county, the choice of forum rests with a plaintiff and will not lightly be set aside. Taylor v. Dasilva, 401 So.2d 1161 (Fla. 3d DCA 1981); Houchins v. Florida E.C. Ry. Co., 388 So.2d 1287 (Fla. 3d DCA 1980). A plaintiff's forum selection is presumptively correct, and in order to successfully challenge that selection, the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses. Hamm v. Ambassador Ins. Co., 456 So.2d 966 (Fla. 5th DCA 1984); Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983); Mann v. Goodyear Tire & Rubber Co., 300 So.2d 666 (Fla. 3d DCA 1974).

Requiring a defendant to meet the burden of showing there is a more convenient forum ensures the creation of record evidence supporting the transfer. In the absence of supporting evidence presented by a movant, it is error for a trial court to order a transfer. Graham v. Graham, 648 So.2d 814 (Fla. 4th DCA 1995); Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29 (Fla. 2d DCA 1992); 5740 Hollywood Boulevard, Ltd. v. Orange Leaf, Inc., 518 So.2d 969 (Fla. 3d DCA 1988); Singer v. Krevoy, 457 So.2d 590 (Fla. 3d DCA 1984); Bassett v. Talquin Elec. Coop., Inc., 362 So.2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979); see Foster Marine Contractors, Inc. v. Southern Bell Tel. & Tel. Co., 541 So.2d 114 (Fla. 4th DCA 1989) (requiring trial court to review quality of supporting evidence as well as quantity of affidavits showing out-of-county contacts).

In addition to the requirement of supportive record evidence, the parties must also have sufficient notice prior to a hearing. Dalomba-Herrera v. Bush, 645 So.2d 117 (Fla. 5th DCA 1994). It is error for a trial court to transfer venue without providing the parties with appropriate notice and an opportunity to be heard. Hewitt Contracting Co. v. Joyner Elec., Inc., 616 So.2d 190 (Fla. 5th DCA 1993); Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So.2d 1036 (Fla. 4th DCA 1985).

Here, it is undisputed that the plaintiffs selected a proper venue. Moreover, the defendant never filed any type of petition, objections, or other formal request to transfer venue. In the absence of a showing by the defendant to overcome the presumption of correctness as to the plaintiff's venue choice, there "is no legal basis for upsetting this venue choice." American Thermoplastic Extrusion Co. v. Tackett Plastics, Inc., 527 So.2d 953, 954 (Fla. 3d DCA 1988); see Sage v. Travelers Indem. Co. of Hartford, 239 So.2d 831 (Fla. 4th DCA 1970) (holding plaintiff has right to maintain action in proper forum "in the absence of a motion to transfer and a proper showing under Section 47.122, ... and in the absence of the defendant's claim of venue privilege").

While there are no Florida cases on point, we can compare cases that construe the rule providing for transfers based upon improper venue. When an action is filed in an improper venue, Rule 1.060(b) provides that "the court may transfer the action ... to the proper court in any county or district where it might have been brought in accordance with the venue statutes." Fla.R.Civ.Pro. 1.060(b). This language gives the court authority to transfer only when a timely Rule 1.140 motion challenging improper venue has been made. Jerolaman v. Van Buren, 512 So.2d 1138 (Fla. 1st DCA 1987); Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980).

Section 47.122 states, "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." § 47.122, Fla.Stat. (1993). We construed the language in Rule 1.060(b) as requiring a challenge prior to transfer even though the circumstances involved an improper venue selection. Gross, 387 So.2d at 1048. Under the even more compelling circumstances where venue is proper, we cannot escape concluding that the trial court's authority to transfer a case because the forum is inconvenient must also be predicated upon a proper challenge. ¹

The trial court's discretion to transfer under Section 47.122 is not unbridled and must be predicated upon a showing that the parties or witnesses will suffer substantial inconvenience or undue expense due to the chosen forum. Ashland Oil, Inc. v. Florida Dept. of Transp., 352 So.2d 567 (Fla. 2d DCA 1977). As noted in Ashland, 352 So.2d at 569: "No decision has come to our attention which approves the convenience of the courts as the sole basis for change of venue that is otherwise properly selected by the plaintiff. We are not inclined, nor do we believe the legislature intended, to extend statutory forum of convenience to such considerations."

A trial court does not have the authority to disturb the plaintiff's choice of proper forum based upon considerations of its own convenience. Ashland, 352 So.2d at 569. We recognize the trial court's concerns in attempting to control its docket and to preserve judicial resources. However, these concerns do not constitute a valid reason for transfer. A trial court should not be allowed to assume an adversarial role on the issue of convenience. There is simply no showing that it would have been more convenient for the litigants or their witnesses to try this action in Escambia County. Therefore, the trial court abused its discretion in defeating the plaintiff's proper venue choice.

Finally, we note that several other jurisdictions have also concluded that a trial court does not have authority to sua sponte transfer venue. ² See Urquhart v. Simmons, 339 Md. 1, 660 A.2d 412 (1995); State ex rel. Edu-Dyne Sys., Inc. v. Trout, 781 S.W.2d 84 (Mo.1989); Fisk v. Thorp, 51 Neb. 1, 70 N.W. 498 (1897); Powers v. Delaware & H.R. Corp., 15 A.D.2d 620, 222 N.Y.S.2d 362 (1961); Stevens v. Blevins, 890 P.2d 936 (Okla.1995); Garzone v. Kelly, 406 Pa.Super. 176, 593 A.2d 1292 (1991); Robertson v. Gregory, 663 S.W.2d 4 (Tex.Ct.App.1983).

We recognize the trial court's wide discretion in determining whether a transfer should be made for the convenience of the parties and witnesses in the interest of justice. However, for the numerous reasons discussed above, that determination can only be made after an appropriate motion by a party. ³ A trial court may not sua sponte transfer a case on grounds of forum non conveniens in the absence of a challenge.

Reversed.

GODERICH, J., concurs.

COPE, Judge (concurring in part and dissenting in part).

I agree with the majority that the order under review must be reversed. I disagree with so much of the majority opinion as holds that a trial court can never sua sponte raise the question whether there should be a change of venue for the convenience of parties or witnesses or in the interest of justice under section 47.122, Florida Statutes (1993).

Section 47.122, Florida Statutes, states:

47.122 Change of venue; convenience of parties or witnesses or in the interest of justice.--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.

The statute contains no requirement that a transfer under section 47.122 be raised only by motion of one of the parties. ⁴

As a matter of Florida law, both the Fourth and Fifth Districts have allowed a trial court sua sponte to raise the question whether venue should be transferred to another county. Hewitt Contracting Co. v. Joyner Electric, Inc., 616 So.2d 190, 190-91 (Fla. 5th DCA 1993); Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So.2d 1036, 1037 (Fla. 4th DCA 1985). ⁵ Both courts hold, however, that the "issue can be decided only after both parties receive appropriate notice and an opportunity to be heard." Hewitt Contracting Co. v. Joyner Electric, Inc., 616 So.2d at 191; Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So.2d at 1037.

In the present case, like...