Methodist Hospital Foundation, Inc. v. Irvin, 403 So. 2d 496

Methodist Hospital Foundation, Inc. v. Irvin

403 So. 2d 496 | Fla. Dist. Ct. App. | 1981

Lead Opinion

SHAW, Judge.

The appellees, Elysabeth D. Irvin and Earl 0. Irvin, instituted suit in Duval County, Florida against the appellants for acts of medical malpractice which allegedly occurred at the Ed Fraser Memorial Hospital, a public hospital located in Baker County, Florida and operated by Methodist Hospital Foundation, Inc. (Methodist), by virtue of a management contract between Methodist and the Baker County Hospital Authority.

Methodist, upon its assertion of inconvenience, moved for a change of venue to Baker County pursuant to Section 47.122, Florida Statutes (1979),1 and argues that while the statute is discretionary, in this instance the judge abused his discretion. In support of its position, Methodist points out that the alleged negligence occurred in Baker County; all professional contact between the Ed Fraser Memorial Hospital and the appellee took place in Baker County; Dr. Dopson resides and practices in Baker County; the nurses involved in the hospital care of the appellee Elysabeth Irvin reside or work in Baker County, and to compel their attendance at trial in Duval County would inflict great hardship upon the patients of the Ed Fraser Memorial Hospital, severely handicapping the Baker County Hospital Authority in the provision of medical services during the trial of the cause. Affidavits from the supervisor of nursing at the Ed Fraser Memorial Hospital, the administrator of the hospital, and Dr. Dopson attest to the hardships and inconvenience that a trial in Du-val County would occasion. Counterbalanced against the appellants’ affidavits are their answers to interrogatories which show that Mrs. Irvin’s leg was amputated in Gainesville, Florida, that certain laboratory studies were performed in Jacksonville at Methodist Hospital, and that the administrator of the Ed Fraser Hospital during the time that Mrs. Irvin was hospitalized now works in Jacksonville, Florida as does the administrator of Methodist. We take judicial notice of the fact that Baker County is adjacent to Duval County and we are disinclined, under the circumstances, to hold that the denial of the motion for change of venue was an abuse of discretion.

Appellant Dopson argues that as an individual defendant residing in Baker County he is entitled to be sued in that county and the privilege cannot be defeated by the fact that his corporate co-defendant enjoys resi*498dency in Duval County. We disagree. Section 47.021, Florida Statutes (1979),2 makes it quite clear that in Florida actions against two or more defendants residing in different counties may normally be brought in any county in which any defendant resides. For purposes of this section, a domestic corporation resides in the county where such corporation has or usually keeps an office for the transaction of its customary business. A foreign corporation doing business in this state resides in the county where such company has an agent or other representative. Section 47.051, Florida Statutes (1979); Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). Methodist reminds us that where defendants enjoy mutual residence within one county, Section 47.021 does not apply even though one of the defendants may also reside in another county. Commercial Carrier Corp. v. Mercer, 226 So.2d 270 (Fla. 3d DCA 1969). It is this mutuality of residence that distinguishes Mercer from the instant case. In the case before us there is no assertion that Methodist is a resident of Baker County or maintains an office in Baker County for the transaction of its customary business. Where there is a request for change of venue, the burden is upon the movant to establish its entitlement to a change. Birdsall Shipping, S. A. v. Gallardo, 390 So.2d 437 (Fla. 3d DCA 1980). We conclude that the appellants Gary Dopson and Methodist Hospital reside in different counties and therefore the plaintiffs’/appellees’ choice of forum controls. The phrase “forum shopping” is simply inappropriate under such circumstances. Houchins v. Florida East Coast Railway Co., 388 So.2d 1287 (Fla. 3d DCA 1980).

The order denying change of venue is accordingly affirmed.

WENTWORTH, J., concurring, with opinion. THOMPSON, J., dissenting, with opinion.

. Change of venue; convenience of parties or witnesses or in the interest of justice. — 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.

. Actions against defendants residing in different counties. — Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.

Dissenting Opinion

THOMPSON, Judge,

dissenting.

I would reverse and remand with directions to transfer venue.

The cause of action accrued in Baker County. The plaintiffs are residents of Baker County. The defendant, Dr. Gary Dopson, is a resident of Baker County. The Ed Fraser Memorial Hospital is located in Baker County and is owned and operated by the Baker County Hospital Authority. The defendant Methodist Hospital Foundation, Inc. (“Methodist”) is a non-profit domestic corporation having offices in both Duval County and Baker County for the customary transaction of its business.

Methodist contends it is entitled to a change of venue to Baker County under the provisions of § 47.122, Fla.Stat. for the convenience of the parties and filed several affidavits in support thereof. The trial judge’s denial of the motion based on § 47.122, Fla.Stat., was not such an abuse of discretion that would warrant reversal on appeal.

Dr. Dopson timely moved for a change of venue on the grounds that he was entitled *499to be sued in the county of his residence under § 47.011, Fla.Stat. The plaintiffs claims that § 47.021, Fla.Stat., gives them the right to bring the action in any county in which any defendant resides. Although § 47.021, Fla.Stat., provides that where there are multiple defendants residing in different counties the action may be brought in any county in which any defendant resides, that provision is not applicable in this case.

Under § 47.051, Fla.Stat., Methodist resides in both Baker and Duval Counties by virtue of the fact that it “has, or usually keeps, an office for transaction of its customary business” in both of these counties. Notwithstanding the fact that the corporate defendant resides in the county in which the suit is filed, if the corporate defendant also resides in the same county as the individual defendant and the individual defendant moves for a change of venue pursuant to § 47.011, Fla.Stat., venue lies only in the county where the individual defendant resides and the motion should be granted. Enfinger v. Baxley, 96 So.2d 538 (Fla.1957).

This rule enunciated by the Supreme Court in Enfinger, supra, has been followed by this Court in Inter-Medic Health Centers, Inc. v. Murphy, 400 So.2d 206 (Fla. 1st DCA 1981), the Second District Court of Appeal in Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla. 2d DCA 1969), the Third District Court of Appeal in Allen v. Summers, 273 So.2d 13 (Fla. 3d DCA 1973), and the Fourth District Court of Appeal in Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975). The majority opinion finds that these cases are not applicable because there was no mutuality of residence of Dopson and Methodist in Baker County and that there was no assertion that Methodist is a resident of Baker County or maintains an office in Baker County for the transaction of its customary business. I disagree with that finding. A domestic corporation is a resident of every county in this state in which it has, or usually keeps, an office for the transaction of its customary business. Methodist had an “office” in Baker County for the transaction of its customary business. Methodist was in the business of hospital management and operation. It had a long-term contract with the Baker County Hospital Authority to furnish certain management services on a regular daily basis, including the services of a full-time resident administrator for the sum of $5,000 per month initially and later for $6,000 per month. In the case of Tribune Company v. Approved Personnel, Inc., 115 So.2d 170 (Fla. 1st DCA 1959), this Court said:

To strain the definition of an “office for the transaction of business” to embrace only separate rooms or buildings would do violence to the fair meaning and intent of the statute. Space in a building which is furnished with the type of office furniture and equipment normally used in the transaction of the occupant’s customary business has been held to satisfy the definition of “office” as used in statutes dealing with service of process. The same is equally applicable to statutes dealing with the matter of venue. It has been early recognized that the expression “an office for the regular transaction of business” does not necessarily mean one who carries on some business at some particular place of which he is a proprietor. The place where one is regularly employed to render services, where he attends every business day, is a place or office for the regular transaction of business, regardless of the character of the business which one may transact at that place.

Methodist has unquestionably satisfied this definition of “office” as used in the statutes dealing with venue.

There is a sufficient assertion in the complaint that Methodist maintains an office in Baker County for the transaction of its customary business. Although the plaintiff attempts to allege that Methodist managed the hospital from Jacksonville, that is contradicted by further allegations in the complaint that Methodist supervised nurses and “hired, trained and supervised other personnel and workers at Ed Fraser Memorial Hospital” (emphasis supplied). The plain*500tiff also attached to and made a part of the complaint, the management contract between Methodist and the Baker County Hospital Authority. This contract sets forth the obligation of Methodist to furnish management services at the hospital including a full-time resident administrator.

As this Court said in Inter-Medic Health Centers, Inc. v. Murphy, supra :

Dr. Shelley did file a timely objection, by way of motion to dismiss and transfer venue, citing § 47.011 and alleging St. Johns County as his only residence and the appropriate place of venue. Although Dr. Shelley did not specifically allege that Inter-Medic also resides in St. Johns County, this fact was alleged in both the complaint and Inter-Medic’s answer. We conclude that in these circumstances Dr. Shelley’s venue objection was sufficiently pleaded. (Emphasis supplied)

The change of venue motion filed by Dr. Dopson should have been granted.

Concurrence Opinion

WENTWORTH, Judge,

concurring.

I concur in the majority opinion. As the opinion notes, no record documents or evidence establishes or asserts that Methodist is a resident of Baker County by maintaining an office for the transaction of its customary business, as distinguished from merely furnishing employees in its subcontractor relationship with the Baker County Hospital Authority. And the change of venue was sought upon an allegation of inconvenience pursuant to § 47.122, Florida Statutes, rather than a joint residence allegation pursuant to § 47.011, Florida Statutes, and Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). The present case is thus unlike Inter-Medic Health Centers v. Murphy, 400 So.2d 206 (Fla. 1st DCA, 1981), and, as the majority opinion indicates, the judge did not err in denying the request for a change of venue.