SMA BEHAVIORAL HEALTH SERVICES, INC., etc. v. CRAIG LOEWINGER, etc.

• Court: District Court of Appeal of Florida
• Decided: February 1, 2023
• Docket: 21-2296
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 1, 2023. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D21-2296 & 3D21-2320 Lower Tribunal No. 20-26978 ________________

SMA Behavioral Health Services, Inc., etc., et al., Appellants,

vs.

Craig Loewinger, etc., Appellee.

Appeals from non-final orders from the Circuit Court for Miami-Dade County, Migna Sanchez-Llorens, Judge.

Roper, P.A., and Derek J. Angell, B.C.S., and Joseph D. Tessitore (Orlando), for appellants SMA Behavioral Health Services, Inc. and Lisa Sweeney, LMHC; Ferrainolo Law Group, PA, and David P. Ferrainolo (Tampa); Armas Bertran Zincone, and J. Alfredo Armas and Natalia Marrero, for appellants Armor Correctional Health Services, Inc., Clayton Hutchens, LPN, and Sametris Ferguson, LMHC.

Littlepage Booth Leckman, and Rainey C. Booth (Houston, TX), for appellee.

Before LOGUE, MILLER and LOBREE, JJ. PER CURIAM.

In this wrongful death action, two groups of defendants appeal the

order denying their motions to transfer venue from Miami-Dade County to

Volusia County. Because virtually all of the incidents at issue occurred and

virtually all of the fact witnesses reside in Volusia County, we reverse.

On October 1, 2018, the decedent, Douglas M. Loewinger, was

arrested in Volusia County for a probation violation and admitted to the

Volusia County Jail, where he remained for ten days. For years prior to the

arrest, the decedent had a history of psychiatric issues and was in the care

of a psychiatrist. A few weeks after being released from jail, the decedent

was found unconscious on the floor of his bedroom in Volusia County,

apparently as the result of a suicide attempt. The decedent was admitted to

Halifax Hospital and remained there until his death on December 3, 2018.

Craig Loewinger, the decedent’s father and personal representative,

filed a wrongful death action over the death of his son. He sued Armor

Correctional Health Services, Inc., which contracts to provide medical

services to the Volusia County Jail, SMA Behavioral Health Service, Inc.,

Armor’s subcontractor, and certain of their nurses, counselors, and

therapists, alleging they were negligent or grossly negligent in providing

medical services to his son while the young man was in custody. The

2 complaint was filed in Miami-Dade County in the Eleventh Judicial Circuit of

Florida.

Shortly after the action was filed, Armor and SMA filed motions,

supported by affidavits of some of the defendants and witnesses, seeking

to have the case transferred to Volusia County, pursuant to section 47.122,

Florida Statutes. The personal representative opposed the motion, noting

that one of the corporate defendants, Armor, had its corporate

headquarters in Miami-Dade County.

We review a trial court’s denial of a motion to transfer venue pursuant

to section 47.122, Florida Statutes, for abuse of discretion. Marques v.

Garcia, 245 So. 3d 900, 904 (Fla. 3d DCA 2018). Courts consider three

factors in deciding whether to grant a motion under the doctrine of forum

non conveniens: “(1) the convenience of the parties; (2) the convenience of

the witnesses; and (3) the interest of justice.” Ford Motor Co. v. James, 33

So. 3d 91, 92–⁠93 (Fla. 4th DCA 2010); see § 47.122, Fla. Stat. (2022).

After careful review, we conclude that Volusia County is a more

appropriate venue for this case than Miami-Dade County. Volusia County

is the venue where the decedent was arrested, kept in custody, received

the allegedly deficient care, was released from custody, took the actions

leading to his suicide, was hospitalized after his actions, and died. It is

3 where all, or virtually all, of the alleged negligence and gross negligence

occurred. Most of the witnesses and individual defendants reside in or near

Volusia County.

Given the fact that most, if not all, of the critical events occurred and

most, if not all, of the fact witnesses reside in or near Volusia County, the

location of Armor’s corporate headquarters in Miami-Dade County does not

negate Volusia County as the more appropriate forum. Morrill v. Lytle, 893

So. 2d 671, 673 (Fla. 1st DCA 2005) (concluding that the location of the

defendant’s corporate office was not sufficient to outweigh the location of

the great majority of witnesses); Graham as Tr. of William J. Graham Tr.

Dated June 16, 1968 v. Virgil, 324 So. 3d 12, 13 (Fla. 4th DCA 2021)

(reversing an order denying a motion to transfer venue to a county where

the incident took place and where most of the parties and witnesses

resided); Theobald v. Piper Aircraft, Inc., et al., 208 So. 3d 287, 290 (Fla.

3d DCA 2016) (affirming the trial court's order transferring the case to a

county where a party and several witnesses were located).

Reversed and remanded for entry of an order transferring this action

to Volusia County.