E.I. DUPONT DE NEMOURS & COMPANY, A DELAWARE CORPORATION; TERRA INDUSTRIES, INC., A MARYLAND CORPORATION; PLATTE CHEMICAL COMPANY, A FLORIDA CORPORATION; AND FOREMOST FERTILIZER COMPANY, A FLORIDA CORPORATION, APPELLANTS,
v.
FRANK C. FUZZELL AND LOIS ELIZABETH FUZZELL, INDIVIDUALLY, AND AS THE NEXT FRIENDS AND PARENTS OF ALICIA LEIGH FUZZELL, A MINOR, AND FUZZELL WHOLESALE NURSERY, INC., APPELLEES
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The trial court abused its discretion by denying the motion to transfer venue from Polk County to Lake County.
[1] A trial court abuses its discretion by denying a motion to transfer venue when the convenience of the parties and witnesses, and the interest of justice, favor an alterna…
[2] The four-part analysis for forum non conveniens adopted in Kinney System, Inc. …
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Join FLexlaw to unlock all legal intelligenceAppellees filed a complaint in Polk County alleging personal injuries and property damage from chemical use. Appellants moved for a change of venue to…
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PARKER, Acting Chief Judge.
Appellees, Frank C. Fuzzell, Lois Elizabeth Fuzzell, Alicia Leigh Fuzzell, and Fuzzell Wholesale Nursery, Inc., filed a complaint in Polk County alleging personal injuries and damage, and property damage to their nursery resulting from the use of the chemical Benlate. Appellants, E.I. DuPont De Nemours & Company and Terra Industries, Inc., defendants below, filed a motion for a change of venue to Lake County on the basis of forum non conve-niens, which the trial court denied. We reverse because the trial court abused its discretion by denying the motion to transfer venue from Polk County to Lake County.
Both parties argue the application of the recent supreme court decision in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla.1996). In Kinney, the supreme court adopted the federal doctrine of forum non conveniens. Kinney, 674 So. 2d at 93. The four-part analysis is codified in emergency Rule of Civil Procedure 1.061. Id. at 93. Under the four-step analysis described in Kinney, an action may be dismissed on the grounds that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida where:
(1) The trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case;
(2) The trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs initial forum choice;
(3) If the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and (4) The trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
Kinney, 674 So. 2d at 94.
The Third District, in Westchester Fire Insurance Co. v. Fireman’s Fund Ins. Co., 673 So. 2d 958 (Fla. 3d DCA 1996), applied the doctrine of forum non conveniens within Florida to uphold a trial court’s decision to transfer a case from Dade County to Hills-borough County because the case had no connection to Dade County. The Third District stated that it “adopts both the literal and philosophical ethos” of Kinney. The court further stated that “ ‘in the interest of justice’, § 47.122, Fla.Stat. (1995), that a Dade County jury ... should not be burdened with determining a case that has no connection with Dade County.” Westchester Fire Ins. Co., 673 So. 2d at 959.
While we agree with the result reached in Westchester Fire Insurance Co., we do not agree that trial courts should use the Kinney analysis to determine if, under the statute, a change of venue is warranted within Florida. In Kinney, the court specifically noted that “[t]he legislature has not attempted to codify any version of the common law doctrine of forum non conveniens, but has approved only a far more limited set of venue statutes generally governing transfers of actions among different courts within Florida,” Kinney, 674 So. 2d at 88, n. 3. We conclude that nothing in Kinney suggests that the supreme court intended that the trial court use this analysis in determining whether a motion for change of venue within Florida is appropriate.
Section 47.122, Florida Statutes (1995), provides:
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.
While choice of venue is an important consideration, the trial court must balance this choice against the convenience of all the parties and the witnesses. By sworn affidavit, the appellants established that the majority of the witnesses resided in Lake County, along with the appellees. None of the witnesses live in Polk County. Furthermore, all of the allegations concerning exposure, damage, and treatment occurred in Lake County. Clearly, Lake County would be more convenient for the witnesses and the parties.
Additionally, the court must determine whether “in the interest of justice” it would be too much of a burden on the Polk County court to hear a case that has no nexus to the community. See Hu v. Crockett, 426 So. 2d 1275, 1280 (Fla. 1st DCA 1983). There is nothing in this ease to connect this cause of action to Polk County other than the fact that the appellees’ lawyer has an office in Polk County.
Accordingly, we reverse and remand with directions to the trial court to grant the appellants’ motion for change of venue.
LAZZARA and QUINCE, JJ., concur.
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Citator
Cited By (11 total)
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Brown & Williamson Tobacco Corp. v. Young, 690 So. 2d 1377 (Fla. 1st DCA 1997)…We thus align ourselves with the Second District Court of Appeal which has held that a Kinney analysis is not appropriate for determining a motion for change of venue within Florida under section 47.122. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So. 2d 1195 (Fla. 2d DCA 1996). . Effective January 1, 1997, this rule has been renumbered as 9.225. Amendments to Florida Rules of Appellate Procedure, 685 So. 2d 773, 822 (Fla.1996).…
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Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So. 2d 575 (Fla. 2d DCA 2007)…itnesses or in the interest of justice,” as provided for in section 47.122.3 Thus, rule 1.061 is not controlling because it does not apply to motions to transfer venue within Florida under section 47.122. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So. 2d 1195, 1197 (Fla. 2d DCA 1996) (acknowledging that the analysis applicable to a motion made pursuant to rule 1.061 does not apply to a motion to transfer venue within Florida pursuant to section 47.122); John Christen Corp. v. Maita, 571 So. 2d 24, 25 n.…
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RJG Env't, Inc. v. State Farm Fla. Ins. Co., 62 So. 3d 678 (Fla. 2d DCA 2011)…l quotation marks omitted)). Convenience is a compelling consideration in transferring venue. Id. We conclude that the trial court did not abuse its discretion in transferring venue to Palm Beach County. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So. 2d 1195 (Fla. 2d DCA 1996) (holding that trial court abused its discretion in not transferring venue to alternative county). Affirmed. DAVIS and KELLY, JJ„ Concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kinney Sys., Inc. v. The Cont'l Ins. Co., 674 So. 2d 86 (Fla. 1996)
- Stephen C.S. HU v. Crockett, 426 So. 2d 1275 (Fla. 1st DCA 1983)
- Westchester Fire Ins. Co. v. Fireman's Fund Ins. Co., 673 So. 2d 958 (Fla. 3d DCA 1996)