Wednesday, May 20, 2009

Transfer of Venue Reversed for Failure to File Affidavit

In Cardellis v. Catholic Health Services, Inc. (4D08-4165), the Fourth DCA reversed the trial court's order that transferred venue to Miami-Dade County based upon forum non conveniens. The basis for the reversal was that the defendants had not filed an affidavit in support of the transfer argument.

In the trial court, the defendants argued:

that the actions which are the subjects of the litigation occurred in Dade County, discovery will occur in Dade County, the witnesses are located in Dade County, and Farinella, the Broward County resident, was sued in his capacity as the administrator of St. Anne’s in Dade County. The trial court granted the motion.

'Under the forum non conveniens statute, 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). Generally, “‘when 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.’” Wynn Drywall, Inc. v. Aequicap Program Adm’rs, Inc., 953 So. 2d 28, 30 (Fla. 4th DCA 2007) (quoting Eggers, 776 So. 2d at 1098). 'The only exception would be where the complaint itself shows on its face that a forum non conveniens transfer is warranted.' Ground Improvement Techniques, Inc. v. Merchs. Bonding Co., 707 So. 2d 1138, 1139 (Fla. 5th DCA 1998). We find that Juana’s complaint does not warrant, on its face, a forum non conveniens transfer. Thus, the trial court erred in failing to request an affidavit from the defendants, and we reverse and remand without prejudice for the defendants to file an affidavit in accordance with this opinion.


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