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Defendant's Attorney: Carla M. Sabbagh and Gregory D. Jones

Description:

Lakeland, FL - Divorce lawyer represented Appellant with appealing a nonfinal order of a motion to transfer venue.

Since the dissolution of their marriage in 2016, the couple remains in a
fraught and contentious relationship. We need not detail their legal history; suffice it to
say that all their prior proceedings (dissolution, emergency motions and petitions, and
modifications) have been heard in Pasco County. We also note that Ms. Johnson filed
the January 2019 petition in Hillsborough County three days after a Pasco County trial
court denied her December 2018 petition for injunction against domestic violence. In
doing so, that trial court found that Ms. Johnson was not credible and was using the
litigation as a weapon against her ex-husband.
In response to the January 2019 petition,1
Mr. Johnson filed an unsworn
"Motion for change of venue," seeking to transfer the case to Pasco County. Mr.
Johnson recited that
[a]lthough . . . the [January 2019 petition] could have been
filed in both Hillsborough and Pasco Counties, the matter
should be transferred to Pasco County as it is not only the
most convenient forum, not just for the witnesses and the
parties involved, but also the most appropriate forum in
regards to the interests of justice and judicial economy.
See § 741.30(1)(k), Fla. Stat. (2018) ("Notwithstanding any provision of chapter 47, a
petition for an injunction for protection against domestic violence may be filed in the
circuit where the petitioner currently or temporarily resides, where the respondent
resides, or where the domestic violence occurred. There is no minimum requirement of
1The January 2019 petition alleged that both parties lived in Hillsborough
County.
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residency to petition for an injunction for protection."); see also § 47.011, Fla. Stat.
(2018) ("Actions shall be brought only in the county where the defendant resides, where
the cause of action accrued, or where the property in litigation is located.").
At the hearing on the transfer motion,2
the trial court heard argument from
counsel; the parties offered no testimony. Mr. Johnson stressed that "everything is still
in Pasco County." Ms. Johnson countered that the parties live in Hillsborough County.
Interestingly, though, when Ms. Johnson filed the December 2018 petition in Pasco
County, both parties were living in Hillsborough County. She also contended that the
therapists who would testify at the injunction hearing have offices in Hillsborough, and
"[t]he majority of the acts alleged in this petition also occurred in Hillsborough."
At the conclusion of the hearing, the trial court found that the "interest of
justice" required the transfer of the case to Pasco County because all of the parties'
prior and existing family law cases had been litigated or remained to be litigated there:
[H]owever we slice it, the case is in Pasco County. . . .
You've got the dissolution action there, timesharing is there,
knowledge base is there, case history is there. I don't have
any of that benefit. And it sounds like there's even motions
for contempt filed [in Pasco County] based on prior
timesharing agreements.
For me to get up to speed on all that would be – it
would be a disservice to both parties to make everybody wait
around for this court to try to do that, and then you would be
getting two different [forums], two different looks at this. I
think in the interest of justice it definitely needs to go to the
same place, wherever the nucleus is. If the nucleus in
Pasco, which it is right now, then . . . the venue is properly in
Pasco. And by that, it's in the interest of justice. Obviously,
the parties live here, so technically this is a proper place for
2Ms. Johnson filed her petition pro se. At the hearing, she was
represented by counsel.
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venue. But in the interest of justice . . . I'm finding its [sic]
not the proper place for it right now.
On appeal, Ms. Johnson argues that Mr. Johnson failed to carry his
burden to justify a transfer because he failed to submit an affidavit with the transfer
motion or present any testimony or other evidence at the hearing. See Loiaconi v. Gulf
Stream Seafood, Inc., 830 So. 2d 908, 909-10 (Fla. 2d DCA 2002) ("It is the defendant's
burden to plead and prove that venue is improper."); Kinetiks.Com, Inc v. Sweeney, 789
So. 2d 1221, 1223 (Fla. 1st DCA 2001) ("A motion by the defendant to dismiss or
transfer on the ground of improper venue raises issues of fact which must be resolved
by an evidentiary hearing, unless the complaint shows on its face that venue is
improper."). In her view, the trial court's order is not supported by competent substantial
evidence and constitutes an abuse of discretion.
Analysis
"A trial court's decision on whether to change venue under section 47.122
is subject to an abuse of discretion standard of review." Fla. Health Scis. Ctr. v.
Elsenheimer, 952 So. 2d 575, 578 (Fla. 2d DCA 2007); see ILD Corp. v. New Link
Network, LLC, 157 So. 3d 501, 502 (Fla. 2d DCA 2015) ("The trial court exercises its
discretion in determining whether to transfer venue under section 47.122." (citing RJG
Envtl., Inc. v. State Farm Fla. Ins. Co., 62 So. 3d 678, 679 (Fla. 2d DCA 2011))). Ms.
Johnson faces a daunting task to receive relief. See Canakaris v. Canakaris, 382 So.
2d 1197, 1203 (Fla. 1980) ("If reasonable men could differ as to the propriety of the
action taken by the trial court, then the action is not unreasonable and there can be no
finding of an abuse of discretion. The discretionary ruling of the trial judge should be
disturbed only when his decision fails to satisfy this test of reasonableness.").
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Section 47.122 "sets forth three bases for transferring venue: (1) the
convenience of the parties, (2) the convenience of the witnesses, and (3) the interest of
justice." Universal Prop. & Cas. Ins. Co. v. Long, 157 So. 3d 382, 383 (Fla. 2d DCA
2015). Generally, witness convenience is of paramount importance. See Fla. Health
Scis. Ctr., 952 So. 2d at 578 ("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."). However, the inimitable
"interest of justice" motivated the trial court's decision here.
This "third factor . . . is a catch-all consideration including many
considerations, and in some close cases this factor may be determinative." Hu v.
Crockett, 426 So. 2d 1275, 1280 (Fla. 1st DCA 1983). The trial court seemingly
recognized the need to streamline the parties' litigation, prevent the duplication of
testimony, and guard against the issuance of inconsistent or conflicting orders, which
was a very real concern in light of the parties' preexisting and ongoing litigation over
parental responsibility and timesharing. See Universal Prop. & Cas. Ins. Co., 157 So.
3d at 384 ("The interests of justice also militate in favor of a venue transfer. . . . Moving
the suit against Universal to Brevard County will avoid duplication of testimony.").
Mr. Johnson did not submit affidavits or other evidence in support of his
venue transfer motion in opposition to the January 2019 petition. See generally Fla.
Health Scis. Ctr., 952 So. 2d at 578-79 ("To overcome a plaintiff's venue choice, the
defendant must submit affidavits or other sworn proof."); Loiaconi, 830 So. 2d at 910
("That burden is not met where a defendant files an unsworn motion and does not
present affidavits or other sworn proof in support of the motion. Moreover, while a trial
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court has broad discretion in dealing with matters of venue, the party challenging venue
must provide a sufficient factual basis for the exercise of that discretion." (citations
omitted)). This is important because "a plaintiff's forum selection is presumptively
correct and the burden is on the defendant to show either substantial inconvenience or
that undue expense requires change for the convenience of the parties or witnesses."
Eggers v. Eggers, 776 So. 2d 1096, 1098 (Fla. 5th DCA 2001); see also Fla. Fam. L. R.
P. 12.060(b) ("When any action is filed placing venue in the wrong county, the court
may transfer the action in the manner provided by Florida law to the proper court in any
county in which it might have been brought in accordance with the venue statutes.
When the venue might have been placed in 2 or more counties, the person bringing the
action may select the county to which the action is transferred.").
But Ms. Johnson lodged no objection to or argument concerning the lack
of evidence. Cf. Fla. Fam. L. R. P. 12.530(e) ("When an action has been tried by the
court without a jury, the sufficiency of the evidence to support the judgment may be
raised on appeal whether or not the party raising the question has made any objection
to it in the trial court or made a motion for rehearing, for new trial, or to alter or amend
the judgment." (emphasis added)). Ordinarily, "in the absence of a stipulation, a trial
court cannot make a factual determination based on an attorney's unsworn statements.
A trial court, as well as this court, is also precluded from considering as fact unproven
statements documented only by an attorney." Blimpie Capital Venture, Inc. v. Palms
Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994) (citation omitted). This is
significant because, where a defendant moves to transfer venue, "the trial court needs
to resolve any relevant factual disputes and then make a legal decision whether the
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plaintiff's venue selection is legally supportable." Blackhawk Quarry Co. of Fla. v.
Hewitt Contracting Co., 931 So. 2d 197, 199 (Fla. 5th DCA 2006). Yet, there is no
dispute between the parties that their prior and ongoing litigation was, and is, conducted
in Pasco County.
Assuredly, the trial court could take judicial notice of and consider the
volume and substance of the couple's Pasco County litigation in determining the
suitable venue for Ms. Johnson's January 2019 petition. See § 90.202(6), Fla. Stat.
(2018) (permitting a trial court to take judicial notice of the "[r]ecords of any court of this
state or of any court of record of the United States or of any state, territory, or
jurisdiction of the United States"). And, certainly, the fact that the parties' litigation had
all taken place in Pasco County was an important, if not the controlling, factor for the
trial court. Moreover, the lack of a timely objection or argument on this point below
prevents us from reviewing it, for the first time, on appeal. See Hornsby v. State, 680
So. 2d 598, 598 (Fla. 2d DCA 1996) ("The defendant's failure to present any argument
to the trial court bars our review of the [sufficiency of the evidence] issue on appeal.");3
cf. Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) (stating that the purpose of the
contemporaneous objection rule is to place "the trial judge on notice that error may have
been committed, and provides him an opportunity to correct it at an early stage of the
proceedings"); Crumbley v. State, 876 So. 2d 599, 601 (Fla. 5th DCA 2004)
("Commonly referred to as the contemporaneous objection rule, the rationale for its
3We recognize that the court's decision in F.B. v. State, 852 So. 2d 226,
230 (Fla. 2003), calls into question our categorical holding in Hornsby. However, none
of the scenarios enunciated in F.B. that otherwise excuse the need for
contemporaneous objection are present in the instant case.
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application is two-fold: 1) to require an objection at the time the error is committed to
give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing
an error to go unchallenged so it may be used as a tactical advantage later.").
Ms. Johnson emphasizes that as the petitioner, she is entitled to her
choice of forum. Of course, she is entitled to some measure of deference. See J.L.S.
v. R.J.L., 708 So. 2d 293, 295 (Fla. 2d DCA 1998) ("Whether to order a venue change
on [section 47.122] grounds is a matter within the sound discretion of the court. When
making that determination, the court must give due deference to the plaintiff's forum
selection; while it is not the paramount consideration, it is a meaningful one in assessing
the convenience of the parties."); P.V. Holding Corp. v. Tenore, 721 So. 2d 430, 431
(Fla. 3d DCA 1998) ("It is well established that where venue is proper in more than one
county, the choice of forum rests with the plaintiff."). However, when the other factors
enumerated in section 47.122 outweigh the initial forum choice, transfer is proper. See
Universal Prop. & Cas. Ins. Co., 157 So. 3d at 384 ("[A] plaintiff's choice of venue is not
a paramount consideration; it is merely a 'meaningful one in assessing the convenience
of the parties.' " (quoting Darby v. Atlanta Cas. Ins. Co., 752 So. 2d 102, 103 (Fla. 2d
DCA 2000))); P.V. Holding Corp., 721 So. 2d at 431 ("[W]hile a plaintiff's choice of
forum is entitled to respect, that choice is not paramount. The plaintiff's venue privilege
will not be honored where the convenience of the parties or witnesses, or the interests
of justice, require the action to be transferred.").
We also wish to point out that the crux of Mr. Johnson's transfer motion
was that all of the parties' prior litigation had taken place in Pasco County and that, as a
result, the trial court there was familiar with the parties and their case. This argument
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was consistent with that made by Mr. Johnson at the hearing. Thus, there was no
prejudice visited upon Ms. Johnson by the trial court entertaining an unpleaded basis for
relief. See Hall v. Animals.com, L.L.C., 171 So. 3d 216, 218 (Fla. 5th DCA 2015)
("Because Animals did not file a motion to transfer based on forum non conveniens, the
trial court erred in entertaining this argument without giving Hall advance notice.");
Utilicore Corp. v. Bednarsh, 730 So. 2d 853, 854 (Fla. 3d DCA 1999) ("The trial court's
oral pronouncement suggests that the court believed venue should be transferred
because Miami-Dade County was an inconvenient forum. The defendants had not filed
a motion to transfer under section 47.122, Florida Statutes (1997), nor had the court
given advance notice that it desired to entertain such a claim on its own motion."
(footnote omitted)).
Lastly, we are compelled to note the curious timing of Ms. Johnson's
decision to seek relief in Hillsborough County. Recall that Ms. Johnson filed the
January 2019 petition in Hillsborough County, three days after the dressing-down she
received in the Pasco County trial court's order finding that she had weaponized the
litigation against her ex-husband. This fact certainly supports Mr. Johnson's argument
that transfer was necessary to prevent forum shopping. See Kinney Sys., Inc. v. Cont'l
Ins. Co., 674 So. 2d 86, 87 (Fla. 1996) ("Forum non conveniens is a common law
doctrine addressing the problem that arises when a local court technically has
jurisdiction over a suit but the cause of action may be fairly and more conveniently
litigated elsewhere. Forum non conveniens also serves as a brake on the tendency of
some plaintiffs to shop for the 'best' jurisdiction in which to bring suit . . . ." (emphasis
added) (footnote omitted)).

Outcome: Because we see no abuse in the trial court's exercise of its discretion to
transfer Ms. Johnson's January 2019 petition to Pasco County, we affirm.
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: