Hu v. Crockett

426 So. 2d 1275
CourtDistrict Court of Appeal of Florida
DecidedFebruary 16, 1983
DocketAM-435
StatusPublished
Cited by70 cases

This text of 426 So. 2d 1275 (Hu v. Crockett) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hu v. Crockett, 426 So. 2d 1275 (Fla. Ct. App. 1983).

Opinion

426 So.2d 1275 (1983)

Stephen C.S. HU, As Personal Representative of the Estate of Lih Chun Chen, Deceased, Appellant,
v.
Thomas William CROCKETT, the Lerio Corporation, the Hertz Corporation, Travelers Indemnity Company, Chee Fai Hor, Lim Yeang Sing, and Goodville Mutual Casualty Company, Appellees.

No. AM-435.

District Court of Appeal of Florida, First District.

February 16, 1983.

*1276 Donald H. Partington and Dennis K. Larry of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellant.

Thomas F. Condon of Emmanuel, Shepard & Condon, Pensacola, for appellees Thomas William Crockett, The Lerio Corp., The Hertz Corp. and Travelers Indemnity Co.

No appearance for appellees Chee Fai Hor, Lim Yeang Sing and Goodville Mutual Cas. Co.

ERVIN, Judge.

In this interlocutory appeal, appellant, plaintiff below, asks us to determine that the lower court abused its discretion in ordering that, pursuant to Section 47.122, Florida Statutes (1981),[1] venue be changed in a wrongful death action from Escambia to Walton County. Such determinations are usually committed to the sound discretion of a trial court, although this discretion is not unbridled.[2] Because we find substantial competent evidence to support the lower court's determination, we affirm.

Lih Chun Chen, the decedent, left South Florida in a car owned by appellee Chee Fai Hor of Lawrence, Kansas. The car was insured by appellee Goodville Mutual Insurance Company, and driven by appellee Lim Yeang Sing, also of Lawrence, Kansas. Appellee Tom Crockett of Kissimmee, Florida, departed central Florida driving a truck for his employer, appellee The Lerio Corporation of Mobile, Alabama. The truck had been leased from The Hertz Corporation and was insured by Travelers Insurance Company, whose principal office for investigation of this case is in Escambia County. The truck and car were involved in a collision on interstate highway-10 (I-10) near DeFuniak Springs in Walton County.

Florida Highway Patrol troopers and Walton County Sheriff's Deputies arrived on the scene, rendering first aid and preparing accident reports. All of these law enforcement *1277 officers reside in either Okaloosa or Walton County. Sing, the car driver, and another passenger, Chee Fai Hor, were both hospitalized in Escambia County. An autopsy of Chen's body was conducted in Okaloosa or Walton County. The remains of the car were towed by a Walton County wrecker operator to his business location in DeFuniak Springs.

Stephen C.S. Hu (of Pensacola), as personal representative of the Chen estate, filed this wrongful death action in his home county of Escambia. Defendants and appellees Crockett, The Lerio Corporation, Hertz and Travelers Indemnity Company moved for a change of venue based on Section 47.122, Florida Statutes. Crockett was deposed, and various admissions were submitted by the parties reflecting the foregoing facts. The plaintiff also submitted documents revealing that he would call a Pensacola accident investigator and a Lerio Corporation representative, a resident of Mobile, Alabama, as witnesses. The record reflects that the attorneys for all of the parties herein are located in Escambia County.

Our initial review of this case suggested that an affirmance of the court's order directing a change of venue to Walton County would be necessary, because no record of the hearing was presented on appeal. Consequently, we would not have known the complete factual setting presented to the lower court, nor would we have had any way of determining whether the lower court misapplied the law. Because the lower court's determination is clothed with a presumption of correctness, we would have been required to affirm. Barnett Bank of Tallahassee v. Applegate, 377 So.2d 1150 (Fla. 1979). On our own motion we afforded the appellant an opportunity to submit a transcript of the motion hearing or a stipulated statement of the proceedings. See Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982); Fla.R.App.P. 9.200(b)(3), (e), (f)(2).

Both the appellants in this case and in Starks elected to submit a stipulated statement of the proceedings. Fla.R.App.P. 9.200(b)(3). However, we distinguish the statement presented in this case from the Starks statement, which we found to be deficient. In the case at bar the statement was prepared by appellant, stipulated to by counsel for the appellees, and approved by the lower court. The statement at bar reflects that the various admissions, a memorandum of law, and a deposition in the court file were presented to the court; that certain specifically cited cases were orally argued to the court by the parties; that no live testimony by witnesses was presented; and that no court reporter was present. The statement summarizes the argument of the defense and comments made by the lower court in granting the change of venue. Specifically, the lower court was concerned about the inconvenience to witnesses in the Walton County area of having to travel to Pensacola for a trial, if venue in Escambia County was retained. Counsel for the respective parties are commended in their efforts to supplement a deficient record by their stipulations.

With a proper substitute for a transcript of the hearing before us and knowledge of the basis for the lower court's determination, we affirm. Section 47.122, Florida Statutes, states that venue may be changed, based on three considerations, including: (1) the convenience of the parties; (2) the convenience of the witnesses; or (3) in the interest of justice. Because these three considerations are in the disjunctive,[3] it appears to us that in very special circumstances venue could be changed based on any one of the foregoing criteria,[4] but Florida case law indicates that courts will routinely scrutinize *1278 each of the factors. Further, in so doing it is also proper to consult federal case law deciding cases under the parallel and virtually identical federal venue provision embodied in 28 U.S.C. § 1404(a). Federal case law is highly persuasive, because Section 47.122, Florida Statutes, is apparently modeled after the federal provision.[5] This court has previously observed:

If a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.

Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977); see also Hall v. Oakley, 409 So.2d 93, 97 (Fla. 1st DCA 1982).

Turning to the first factor, that of convenience of the parties, the record suggests that Escambia County is a much more appropriate forum than Walton County. None of the parties resides in or near Walton County. Defendant and appellee Travelers' principal office having responsibility over this claim is in Pensacola. Defendant/Appellee Lerio Corporation is located in Mobile and obviously much closer to Pensacola than Walton County. The other defendants/appellees live in either Kissimmee near Orlando or in Kansas. These individuals, if they are to be at trial, most likely would find it easier to obtain transportation into Pensacola rather than Walton County.

Further, the plaintiff/appellant filed this action in Escambia County.

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Bluebook (online)
426 So. 2d 1275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hu-v-crockett-fladistctapp-1983.