At Home Auto Glass, LLC v. Mendota Ins. Co.

345 So.3d 392

AT HOME AUTO GLASS, LLC a/a/o Andre Bryant, Appellant,

v.MENDOTA INSURANCE COMPANY, Appellee.

Case No. 5D21-2052

District Court of Appeal of Florida, Fifth District.

Opinion filed August 12, 2022

Chad A. Barr, of Chad Barr Law, Altamonte Springs, for Appellant.

Matthew C. Scarborough and Amy Lee, of Scarborough Attorneys at Law, Tampa, for Appellee.

LAMBERT, C.J.

At Home Auto Glass, LLC, a/a/o Andre Bryant ("Glass Company") appeals the trial court's nonfinal order granting Mendota Insurance Company's ("Insurer") motion to transfer venue from Seminole County to Alachua County based on forum non conveniens . We reverse.

BACKGROUND—

Glass Company filed suit against Insurer in small claims court¹ in Seminole County for breach of contract. It alleged that it had replaced the windshield of Andre Bryant, who was insured by Insurer, and that Bryant assigned to it any benefits to which he was entitled under his insurance policy. Glass Company asserted that it made demand on Insurer for payment owed under the policy but Insurer refused to pay.

Insurer responded to the complaint by filing an unsworn motion to transfer venue to Alachua County. It did not challenge Glass Company's choice of Seminole County as being an improper venue; it was not. See § 47.051, Fla. Stat. (2020) ("Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative ...."). Rather, Insurer sought the venue transfer under section 47.122, Florida Statutes (2020), asserting that venue in Alachua County was more convenient. Section 47.122 provides that "[f]or 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. (2020).

Insurer argued that it would be inconvenient for its insured, whom it stated was a "key witness," to appear in Seminole County because he resided in Alachua County. Insurer also alleged that its insured's windshield was replaced in Alachua County and that he executed the assignment of benefits document there. No other potential witnesses were mentioned by Insurer in its motion. Insurer also contended that venue should be transferred in the interest of justice to avoid imposing jury duty "on an uninvolved community."

Following a hearing, the trial court granted Insurer's motion on two grounds—the convenience of the witnesses and the interest of justice. First, it found in its written order that the insured was a "key witness" who resides in Alachua County and that this was also where he executed the assignment of benefits and where his windshield was replaced. Second, the court determined that the interest of justice supported the venue transfer so that a jury in Seminole County would not be burdened with a case that had no connection to Seminole County.

ANALYSIS—

Under section 47.122, Florida Statutes, a plaintiff's forum selection is presumptively correct. Eggers v. Eggers , 776 So. 2d 1096, 1098 (Fla. 5th DCA 2001). Resultingly, a party, such as Insurer, seeking to transfer venue has the burden of proof to establish the basis under this statute for the transfer. See Vero v. Vero , 659 So. 2d 1348, 1349 (Fla. 5th DCA 1995). To that end, our court has made clear that "[w]hen 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." Hall v. Animals.com, L.L.C. , 171 So. 3d 216, 218 (Fla. 5th DCA 2015) (quoting Eggers , 776 So. 2d at 1098 ). Glass Company argues that Insurer failed to meet this burden required by our precedent.

We agree. Insurer's motion to transfer was unsworn; it presented no evidence by way of affidavits, depositions, or live testimony at the hearing, nor did it file any pre-hearing affidavits or sworn evidence in support of its motion.² In contrast, Glass Company filed an affidavit in opposition to the motion to transfer venue from its managing partner. The affiant averred that the disputed issue between the parties pertained to the general pricing charged by Glass Company for auto glass replacement services compared to the amount that Insurer would pay for such service. The affiant explained that Glass Company would not be relying on layperson testimony and that its corporate representative witnesses and possible expert witnesses would not be inconvenienced by the litigation remaining in Seminole County.

Admittedly, Glass Company did not contest that it replaced the windshield in Alachua County or that the insured executed the assignment of benefits there. It argues, though, that Insurer provided no explanation as to how these two uncontested matters were significant to the litigation such that the insured's testimony would be necessary at trial. See R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So. 2d 634, 636 (Fla. 4th DCA 1998) ("Indeed, certain listed ‘witnesses’ may have information relevant only to uncontested matters, and it may be unnecessary for them to attend the trial or have any significant involvement in the litigation."); Brown & Williamson Tobacco Corp. v. Young , 690 So. 2d 1377, 1379 (Fla. 1st DCA 1997) ("[I]n order for a court to consider the convenience of the witnesses [under section 47.122 ], the court must know who the witnesses are and the significance of their testimony.").³ We again agree with Glass Company.

Lastly, Insurer submitted no affidavit or other evidence that its insured still resides in Alachua County; nor did it show, at all, how he would be inconvenienced if venue remained in Seminole County. See R.J. Reynolds Tobacco Co. v. Mooney , 147 So. 3d 42, 46 (Fla. 3d DCA 2014) (holding that if "venue is proper in more than one place, a plaintiff has the privilege of selecting which venue is most favorable to it for any reason" and that the plaintiff's "selection will not be disturbed absent evidence that the chosen venue is either not proper in the place selected or substantially inconvenient to the witnesses or parties").

Accordingly, absent evidence from Insurer that its one witness identified in its motion would be inconvenienced by venue of this case remaining in Seminole County, or how his testimony would be required other than regarding the uncontested matters previously mentioned, we hold that the trial court abused its discretion in transferring venue for the convenience of the witnesses. See Cohen v. Scarnato , 270 So. 3d 410, 412 (Fla. 4th DCA 2019) (providing that an order transferring venue under section 47.122 is generally reviewed for an abuse of discretion).

Glass Company next argues that, absent the venue transfer being necessary for the convenience of the witnesses, it is an abuse of discretion to transfer venue under section 47.122 solely for the interest of justice. In support of its argument, Glass Company relies heavily on the Fourth District Court's recent decision in Advanced Diagnostic Group v. Ocean Harbor Casualty Insurance , 321 So. 3d 772 (Fla. 4th DCA 2021). In reversing a trial court's order transferring venue based solely on the interest of justice,...