CHARLES R. DAVIS, APPELLANT,
v.
FLORIDA POWER CORPORATION, APPELLEE
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Davis sued Florida Power for injuries sustained at a nuclear power plant and filed suit in Pinellas County where the defendant maintained its corporate headquarters. The trial court transferred venue to Citrus County based on an unsworn motion without affidavits or sworn proof, and the appellate court reversed, holding that a party seeking venue transfer under Florida statute must meet its burden of proof with sworn evidence.
The court held that a party seeking to transfer venue must meet its burden of proof through sworn evidence or affidavits. The trial judge's discretion under § 47.122 is not unbridled and must be predicated upon a proper showing of the statutory grounds. An unsworn motion unsupported by sworn proof is insufficient to support a venue transfer.
[1] A defendant seeking to transfer venue bears the burden of pleading and proving improper venue when the plaintiff's complaint does not affirmatively show that venue is lac…
[2] A motion for change of venue must be supported by sworn proof, such as affidavits, to establish the statutory grounds for transfer.
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Join FLexlaw to unlock all legal intelligence“the discretion of the trial judge under section 47.122 is not unbridled and must be predicated upon a proper showing of the statutory grounds”
Establishes that trial court discretion to transfer venue is limited and requires evidentiary support of statutory grounds
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Join FLexlaw to unlock all legal intelligenceDavis brought suit against Florida Power for injuries sustained in an accident at Florida Power's nuclear power plant located in Citrus County. Davis …
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DANAHY, Chief Judge.
The appellant (the plaintiff) appeals from an order transferring venue of this case from Pinellas County to Citrus County. We reverse.
The plaintiff brought this suit against the appellee (Florida Power) to recover damages for injuries sustained by the plaintiff in an accident at Florida Power’s nuclear power plant in Citrus County. The plaintiff filed his suit in Pinellas County, where Florida Power does business and maintains its corporate headquarters. Venue in that county, of course, is proper. § 47.051, Fla.Stat. (1985).
Florida Power filed an unsworn motion for a transfer of venue to Citrus County pursuant to section 47.122, Florida Statutes (1985). Section 47.122 provides that, for 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.
Florida Power submitted no affidavits or other sworn proof in support of its motion. No testimony was taken at the hearing on Florida Power’s motion for change of venue. Nevertheless, after hearing statements of counsel as to what witnesses might be needed at trial and where they reside, the trial judge entered an order transferring venue of the suit to Citrus County.
In Ashland Oil, Inc. v. Florida Department of Transportation, 352 So. 2d 567 (Fla. 2d DCA 1977), we pointed out that the discretion of the trial judge under section 47.122 is not unbridled and must be predicated upon a proper showing of the statutory grounds. In Magee v. Liberty Mutual Insurance Co., 366 So. 2d 827 (Fla. 4th DCA 1979), the Fourth District Court of Appeal addressed a situation similar to that here, involving a motion to transfer for improper venue. The motion in that case was unsworn and there were no affidavits or other proof sufficient to support the allegations of the motion. The court said:
The election of venue is initially with the plaintiffs. Assuming the complaint does not affirmatively show that venue is lacking, the burden of pleading and proving improper venue is upon the defendants. The allegations of the unsworn motion to dismiss or to transfer were never established by sworn proof before the trial court. We reverse.
We agree with the plaintiff that Florida Power failed to meet its burden of proof with respect to its motion for change of venue pursuant to section 47.122.1 The trial judge had no evidence upon which to base his decision that venue should be transferred on the grounds set forth in section 47.122. Accordingly, we reverse.
Reversed.
RYDER and FRANK, JJ., concur. . We reject Florida Powers argument that the plaintiff waived the issue of burden of proof by failing to raise that issue before the trial judge. The record shows that the plaintiff twice pointed out to the trial judge that Florida Power had failed to meet its burden of establishing the statutory grounds.
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Cited By (12 total)
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Carenza v. SUN Int'l Hotels, Ltd., 699 So. 2d 830 (Fla. 4th DCA 1997)…ions made in their motion to dismiss. “A transfer of venue based on convenience is improper where no affidavits or other sworn proof support the motion.” Graham v. Graham, 648 So. 2d 814, 815-16 (Fla. 4th DCA 1995); see Davis v. Florida Power Corp., 492 So. 2d 829 (Fla. 2d DCA 1986) (where allegations of unsworn motion to dismiss or transfer were never established by sworn proof, the trial court had no evidence on which to base its decision to transfer venue). A defendant’s burden of persuasion runs to all t…
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Domenico Loiaconi v. Gulf Stream Seafood, Inc., 830 So. 2d 908 (Fla. 2d DCA 2002)…the defen [*910] dant’s burden to plead and prove that venue is improper. Id. 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. Davis v. Fla. Power Corp., 492 So. 2d 829, 829-30 (Fla. 2d DCA 1986); Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979). Moreover, while a trial court has broad discretion in dealing with matters of venue, the party challenging venue must provide a sufficient factual basis…
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Westshore Glass Corp. v. Hack Indus., Inc., 522 So. 2d 1046 (Fla. 2d DCA 1988)…dismiss or to transfer were never established by sworn proof before the trial court. We reverse. Magee v. Liberty Mutual Insurance Co., 366 So. 2d 827 (Fla. 4th DCA 1979). The Magee case was followed by this court in Davis v. Florida Power Corp., 492 So. 2d 829 (Fla. 2d DCA 1986). It appears from the affidavit of appellant’s president that venue is proper in Hillsborough County. The trial court’s order transferring venue to Dade County is reversed and set aside and the cause is remanded for further proceed…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979)
- Eldridge Lamar Parks v. State, 352 So. 2d 567 (Fla. 2d DCA 1977)
- Davis v. Fla. Power Corp., 486 So. 2d 34 (Fla. 2d DCA 1986)