Opinion
Case No. 2D02-1637.
Opinion filed December 11, 2002.
Appeal from the Circuit Court for Polk County; Cecelia M. Moore, Judge.
Gary R. Gossett, Jr. of Gossett Law Offices, P.A., Sebring, for Appellants.
Vance R. Dawson and Jennings L. Hurt, III, of Rissman, Weisberg, Barrett, Hurt, Donahue McClain, P.A., Orlando, for Appellee Health Management Associates, Inc. of Delaware. Ronald H. Josepher of Josepher Batteese, P.A., Tampa, for Appellee Marvin D. Maxwell, M.D.
Arthur Cholodfsky and Karina P. Gonzalez of the Law Offices of Steven M. Ziegler, P.A., Hollywood, for Appellees Osiel Vallejo, M.D., Melody McSorley, ECS of Sebring, Inc., and Florida ECS, Inc.
Health Management Associates and Dr. Marvin Maxwell filed motions to transfer venue of the Platts' suit against them from Polk to Highlands County. The circuit court granted their requests. It is not clear from either the motions or the written order whether the basis for the transfer was improper venue under section 47.011, Florida Statutes (2001), or the convenience of the parties under section 47.122. On appeal, however, the defendants basically concede that venue was proper in Polk County, and we agree. Thus, section 47.011 could not support a venue change. We also agree with the Platts that if the circuit court transferred venue to Highlands County for the convenience of the parties, it erred.
The other defendants did not file written motions to change venue, but orally joined Heath Management and Maxwell at the hearing on those motions.
This court has held that a motion based on section 47.122 must be accompanied by sworn proof. Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29, 30 (Fla. 2d DCA 1992). Here, the defendants' motions were unsworn, and they submitted no affidavits. As we did in Breen, we reverse the order granting a change of venue without prejudice to the defendants' rights to properly raise the issue again with the circuit court.
Reversed.
STRINGER, J., Concurs. SILBERMAN, J., Concurs specially with opinion.
In reversing the order granting a change in venue without prejudice, the majority correctly relies on this court's earlier decision in Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29 (Fla. 2d DCA 1992). While I concur in the majority opinion, I write because it is troubling that the reversal is without prejudice. By our ruling, the appellees will have a second opportunity to submit sworn proof to the trial court and to reargue the venue issue.
We have previously made clear that defendants who seek to establish that a plaintiff's choice of venue is improper must file or present sworn proof to the trial court. Id. at 30; Davis v. Fla. Power Corp., 492 So.2d 829, 829-30 (Fla. 2d DCA 1986). Health Management Associates and Dr. Maxwell filed unsworn motions to transfer venue without supporting affidavits, and the other appellees orally joined in the motions. None of the appellees filed or presented sworn proof in support of the motions.
While our decision is consistent with Breen, in the context of this case a reversal without prejudice gives Health Management Associates and Dr. Maxwell the proverbial second bite at the apple. See St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377 (Fla. 2d DCA 1998); Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992). Absent a change in circumstances such as the discovery of new information, a party's failure to carry its burden when seeking a change in venue should not be rewarded with additional opportunities to present the requisite proof to the trial court. However, because of the precedent set forth in Breen, I reluctantly concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED