PHILIP MORRIS USA INC.

v.

JENNIFER MANNING, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LINDA LEE FRIEDRICH

PER CURIAM.

AFFIRMED. See Brown & Williamson Tobacco Corp. v. Young, 690 So. 2d 1377 (Fla. 1st DCA 1997).

B.L. THOMAS and NORDBY, JJ., concur; TANENBAUM, J., concurs in result with opinion.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

TANENBAUM, J., concurring in result.

Pursuant to section 47.051, Florida Statutes, a plaintiff has the right to choose from several authorized venues for a suit against a foreign corporation. Section 47.122, Florida Statutes, says a trial court “may” transfer the case to another authorized venue “[f]or the convenience of the parties or witnesses or in the interest of justice.” It uses the auxiliary verb “may,” not “shall,” meaning this statute establishes a right to ask that the venue be changed. There is no right to a change of venue granted to anyone under the statute, even if the circumstances appear to warrant it by the statute’s terms.

To put it a bit differently, “may” indicates that the trial court can (read: has the authority to) change venue, if it decides it is warranted, provided the circumstances specified in the statute are demonstrated by evidence. When it does override a plaintiff’s choice of authorized venue in favor of another authorized venue, the trial court’s decision is reviewable on appeal for whether it abused its discretion in doing so. See Hu v. Crockett, 426 So. 2d 1275 (Fla. 1st DCA 1983). That review ostensibly ensures that the trial court had evidence showing party inconvenience, witness inconvenience, or the unjustness in the plaintiff’s original venue choice—the only three sets of circumstances where the transfer would be authorized at all under the statute.

Our review on the flip side of the trial court’s exercise of discretion under section 47.122—when it denies the request and sticks with the plaintiff’s venue choice—is different. Again—and in contrast to other provisions in chapter 47—there is no text in section 47.122 that requires a change of venue. Cf. §§ 47.101, 47.111, Fla. Stat. (giving a party a right to petition for change of venue if there is a belief it will not receive a fair trial, and the adverse party a right to an evidentiary hearing on the question); §

47.121, Fla. Stat. (requiring a change of venue if “it appears impracticable to obtain a qualified jury in the county where the action is pending”).* As a practical matter, if the trial court does not have to change venue under any circumstances in response to a request made pursuant to this statute, what would we be looking for to determine whether the trial court erred—whether the trial court should have granted the request?

Indeed, any determination we would make about whether the trial court should have granted the request would involve the interposition of our own discretion in the matter, which of course we cannot do. On appeal from a denial of a change-of-venue request under section 47.122, we at most can consider whether the trial court recognized it had discretion to change venue under the statute in the first place, and whether it in fact exercised that discretion when it denied the request. Cf. Ayala v. Scott, 224 So. 3d 755, 759 (Fla. 2017) (noting that a trial court may not refuse to exercise discretion given to it and may not “rely on an inflexible rule for a decision that the law places in the judge’s discretion” (internal quotation and citation omitted)). We cannot review how the trial court exercised that discretion or whether there was evidence to support or contradict its denial of a requested change. The court in Young, cited by the majority, completely misses this distinction. That decision, which addressed the denial of a motion to change venue, relied on Hu as “controlling,” even though Hu reviewed a trial court’s grant of a change in venue.

Undoubtedly, the trial court here recognized it had discretion. It just chose not to exercise it to change venue for the convenience of some of the witnesses and the appellant. Having made that choice, the question whether the trial court should have transferred venue in the face of evidence indicating that there was no demonstrated factual connection to the various plaintiffs’ choice of Duval County as their venue—which section 47.051 otherwise

*I make no comment about whether there could be circumstances giving rise to a constitutional concern requiring a change of venue “in the interest of justice.” There is no constitutional dimension to this appeal. In any event, the other provisions that I just cited likely would be sufficient to cover such a concern.

indisputably authorizes as a proper venue in these cases—is beside the point and not for us to answer. For this reason, I agree with affirming the trial court’s denial of the myriad motions to transfer venue.

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Geoffrey J. Michael, of Arnold & Porter Kaye Scholer LLP, Washington, DC, and David Thorne of Shook, Hardy & Bacon L.L.P., Kansas City, Missouri, for Appellant.

Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, Richard J. Lantinberg, A. Jay Plotkin and William P. Rothrock, of Jax Litigation Group, P.A., Jacksonville, for Appellees.