GALE GLASS EZELL AND SHELDON EZELL, APPELLANTS,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, AN AGENCY OF THE STATE OF FLORIDA, WILLIAM J. PAGE, JR., DAVID H. PINGREE, SECRETARY, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, ALFRED CAMPBELL, ONE UNKNOWN INTAKE COUNSELOR, AN EMPLOYEE OF THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, AND CARL DEAN, APPELLEES
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A special education teacher and her husband appealed a venue transfer order that moved their assault lawsuit against the Department of Health and Rehabilitative Services and its employees from Dade County to Leon County. The court affirmed the transfer as to HRS under the state agency venue rule but remanded for reconsideration of the transfer as to individual employee defendants.
The court affirmed the venue transfer as to HRS because state agencies have an absolute privilege to have actions tried where they maintain their principal headquarters when timely exercised. However, the court remanded the decision regarding individual employee defendants because the trial judge has discretion to grant or deny transfer as to individual defendants, and the record lacked sufficient facts to determine whether that discretion was abused.
[1] A state agency has an absolute privilege, when timely exercised, to have an action tried where the agency maintains its principal headquarters.
[2] When a state exercises its venue privilege, the trial court has discretion whether to grant a transfer with respect to claims against individual defendants.
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Join FLexlaw to unlock all legal intelligence“under the state agency venue rule, HRS has the absolute privilege, when timely exercised, to have the action tried where the agency maintains its principal headquarters”
Establishes the absolute nature of state agency venue privilege when timely invoked
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Join FLexlaw to unlock all legal intelligencePlaintiff, a special education teacher, was assaulted by a male teenage inmate who escaped from Dade Halfway House. She and her husband (for derivativ…
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NESBITT, Judge.
This is an appeal from a non-final order transferring venue to the Second Circuit in Leon County. We have jurisdiction, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).
The plaintiff, a special education teacher, joined by her husband for his derivative claim, sued the Department of Health and Rehabilitative Services (HRS) and various of its employees for an assault committed upon her by a male teenage inmate who had escaped from Dade Halfway House. The defendants were sued in both their representative and individual capacities.1 The attorney general, representing HRS and the state employees, filed a timely motion for change of venue on behalf of all, which was granted. We affirm the order insofar as it transferred the claims against HRS to the Second Circuit because, under the state agency venue rule, HRS has the absolute privilege, when timely exercised, to have the action tried where the agency maintains its principal headquarters.2 Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1978).
As to the claims against the employees in their individual capacities, we observe that the election of venue was the prerogative of the plaintiff. Itel-Pas, Inc. v. Jones, 389 So. 2d 1085 (Fla. 3d DCA 1980). However, when the state exercised its venue privilege, it was within the trial judge’s discretion whether to grant a transfer with respect to the claims against the defendants individually. Greer v. Mathews, 409 So. 2d 1105 (Fla. 1st DCA 1982); Wagner v. Nova University, Inc., 397 So. 2d 375 (Fla. 4th DCA 1981). Because there are insufficient facts upon which we can determine whether there was an abuse of discretion in changing venue as to the individual employees, we remand for consideration of the factors enunciated in Section 47.122, Florida Statutes (1979) and Florida Rule of Civil Procedure 1.270 pertaining to separate trials. See Wagner v. Nova University, Inc., supra.
Affirmed in part; remanded in part for further proceedings consistent with this opinion.
. The cause of action in the present case accrued on December 14, 1977 prior to the enactment of Section 768.28, Florida Statutes (1980 Supp.), effective July 1, 1980, which provides immunity to public employees.
. We recognize that the state agency rule has since been partially abrogated by Section 768.-28(1), Florida Statutes (1981), effective October 1, 1981. See Florida Department of Transportation and State of Florida v. Lopez, 415 So. 2d 116 (Fla. 3d DCA 1982) (Case no. 82-638, opinion filed June 15, 1982).
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Prof'l Planning Servs., Inc. v. Sunshine Staff Leasing, Inc., 695 So. 2d 883 (Fla. 5th DCA 1997)…. When venue over one count of a complaint is transferred to another county, the determination whether to transfer venue over the remaining counts is within the discretion of the trial court. Ezell v. Department of Health & Rehabilitative Services, 415 So. 2d 832 (Fla. 3d DCA 1982). Here, there has been no showing that the trial court abused its discretion in transferring venue over Professional Planning’s tort claim. Rather, the trial court properly recognized that Sunshine’s request for a transfer was prop…
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Gallagher v. Smith, 517 So. 2d 744 (Fla. 4th DCA 1987)…interest of justice [*747] and the convenience of the parties and witnesses.” Appellees contend that transfer of the remaining counts along with count IV was proper, and, relying upon Ezell v. State Department of Health and Rehabilitative Services, 415 So. 2d 832 (Fla. 3d DCA 1982), state in their answer brief that “where the trial court determines to transfer certain claims to a different county pursuant to a specific venue statute, it has broad discretion to determine whether also to transfer the remaining…
Authorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- Wagner v. Nova Univ., Inc., 397 So. 2d 375 (Fla. 4th DCA 1981)
- Itel-Pas, Inc. v. Jones, 389 So. 2d 1085 (Fla. 3d DCA 1980)
- Melvin Greer, M.D. v. Mathews, 409 So. 2d 1105 (Fla. 1st DCA 1982)
- Fla. Dep't OF Transp. & State of Fla. v. Lopez, 415 So. 2d 116 (Fla. 3d DCA 1982)