### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

LINDA W. BOTTA, individually, BETHANY B. BOYD, individually, and NANCY D. COLACHICCO, individually

, Appellant s ,

v.

CIKLIN, LUBITZ & O’CONNELL
, a P artnership of Professional Associations, and BRIAN M. O’CONNELL, ESQ., individually

, Appellee s

.

No. 4D 17

- 379

[ July 26, 2017 ]

Appeal of non

- final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Carlos A. Rodriguez , Judge; L.T. Case

No. CACE15019284AXXXCE

.

Mic hael C. Sasso and Michael A. Sasso of Sasso & Sasso, Winter Park

, for appellant s

.

Brian M. O’Connell, Ashley Crispin Ackal , and Zachary Rothman of

Ciklin Lubitz & O’Connell, West Palm Beach

, for appellee s

.

G ERBER
, C.J.

The appellant daughters appeal from the circuit court’s order denying

their amended motion to transfer the underlying action s from Broward County to Seminole County based on forum non conveniens . The daughters argue the court erred because their evidence showed that

Broward Cou nty was not a convenient forum while Seminole County was

the most convenient forum

. We agree with the daughters’ argument . We

reverse and remand for transfer of all pending actions to Seminole County.

Procedural History

In 2000, the daughters’ mother execut ed a durable power of attorney which the appellee law firm drafted . The 2000 POA appointed all three daughters as co

- agents

. In 2001, the mother moved to Seminole County, where daughter Colachicco resided.2 In 2002, the mother executed a new durab le power of attorney which

the law firm drafted . The 2002 POA appointed on ly daughter Colachicco

as agent

. When the mother executed the 2002 POA , she resided in Seminole County.

In 2014, the mother died in Seminole County. Her estate is in probate

in S eminole County. After the mother’s estate went into probate, daughters Botta and Boyd allege d that the 2002 POA , appointing only daughter Colachicco as agent, was invalid

.

T he law firm , as the drafter of the 2002 POA, filed an action in Broward County se eking a declaratory judgment that the 2002 POA was valid as

“ freely and voluntarily executed ” by the mother , with “ the requisite capacity ” and “ free from duress, c oercion and undue influence. ” The law firm named all three daughters as defendants. The law firm alleged that daughter Botta resided in Connecticut, daughter Boyd resided in Broward County, and daughter Colachicco resided in Seminole County. The law

firm alleged that it named all thr ee daughters as defendants to the action based on their “antagonistic and adverse interests

. ”

However, b y the time the law firm filed its lawsuit, the three daughters

had resolved their differences . D aughters Botta and Boyd then filed a malpractice count erclaim /third

- party complaint against the law firm and

the attorney who draft ed the POAs

. Botta and Boyd claimed to be intended third party beneficiaries of the law firm’ s and the attorney’s services for their mother. According to Botta and Boyd, but for the law firm’s and the attorney’s drafting of the 2002 POA, they would have withheld their consent to certain expenditures if they retained the “veto” power of the 2000 POA, and the removal of the “veto” power in the 2002 POA was the proximate cause of lo sses to them.

The three daughters also united to file an amended motion to transfer venue from Broward County to Seminole County

. I n their motion and

affidavits , they alleged the following

. Daughters Boyd and Colachicco reside in Seminole County , more than 200 miles from Broward County. Daughter Botta resides in Brevard County, more than 135 miles from Broward County. Round trip travel for all three daughters would require
several hours and would be extremel y inconvenient. T he mother resided

i n Seminole County wh en she executed the 2002 POA . T he mother’s

affairs were managed in Seminole County until she d ied

. The mother’s estate was in probate in Seminole County. Any property being pr obated was in Seminole County. No connection existed to B roward County.3 The daughters also alleged in their motion and affidavits that Broward County was an inconvenient forum for other witnesses who could offer testimony regarding the mother’s condition when she executed the 2002

POA. Those witnesses included :

• The executive d irector of the living facility where the mother resided in Seminole County

. She prepared written statements regarding the

mother’s capacity to execute the 2002 POA. She witnessed and
notarized the mother’s execution of the 2002 POA in Seminole County . She resid es in Seminole County

, more than 200 miles from Broward County

. Round trip travel would require several hours and

would be extremel y inconvenient

.

• Boyd’s adult children

, who spent a signifi cant amount of time with

the mothe r , observing her physical and mental health

. They resid e in Seminole County

, more than 200 miles from Broward County

. Round trip travel would require several hours and would be

extremel y inconvenient.

• The neurological medical s taff who treated the mother shortly before
she executed the 2002 POA and in the years after

. They are located in Orange County

, only 19 miles from Seminole County, but more than 200 miles from Broward County

. Round trip travel to Broward County would require several hou rs and would be extremel y inconvenient

.

The daughters argued that the “overwhelming majority of witnesses

reside [] in Seminole County, where this cause of action should be

transferred. ” They also argued that the relevant events took place in Seminole County and that the “interests of justice” were not served by requiring a Broward County court to resolve the actions when it had no

connection to the actions

.

As for daughters Botta’s and Boyd’s malpractice action against the law

firm and the attorney , the daughters argued that action accrued not where

the legal service s were provided in Palm Beach County, but rather where the resulting harm was suffered by them in Seminole County

.

In res ponse to the daughters’ amended motion to dismiss or transfer,

the law firm filed an affidavit alleging that when the law firm filed the underlying action , daughter Boyd resided in Broward County

.

The court held a hearing on the daughters’ amended motio n to dismiss

or transfer . No witnesses testified. The law firm’s attorney presented the4 court with property records indicating that daughter Boyd sold her homestead in Broward County three months after the law firm filed the declaratory judgment action. The daughters’ attorney responded that daughter Boyd was not served with the law firm’s declaratory judgment action until after she moved to Seminole County.

At the end of the hearing, the circuit court announced it was denying the daughte rs’ amended motion to transfer venue . The court first said that plaintiffs generally get to pick the venue as long as they have a basis for it, and here they had a basis for it in Broward County because daughter Boyd lived there when the law firm filed the complaint

. The court also

assumed that the law firm picked Broward County as the venue because

it was more convenient for the law firm . The court added: “Who am I now as the Judge to step in and say, ‘Wait a minute plaintiff, you have to go travel up to Brevard an d take your witnesses up there and be inconvenienced up there.’ It’s the plaintiff’s choice as long as they have a

reasonable basis for it and they do.” The court also said that the daughters could use video depositions to perpetuate testimony. The cour t then explained : “ It’s going to be inconvenient for somebody, [the law firm] picked [Broward County], it’s staying here, it’s discretionary with the Court. [The law firm] has a basis, the Court has jurisdiction[,] and half the people are here and half a re up there, so th at’s the way it is.”

The court immediately entered a written order stating simply that the daughters’ amended motion to transfer for improper venue or forum non

conveniens was denied

.

T his appeal followed. The daughters have limited their appeal t o that portion of the circuit court’s order denying their amended motion to
transfer based on forum non conveniens

. The daughters argue the court erred because their evidence showed that Broward County was not a

convenient forum while Seminole County would be a convenient forum

.

Our Review

W e have summarized the law governing our review of an order denying

a motion to transfer venue for forum non conveniens as follows :

This Court reviews orders denying motions to transfer

ve nue for an abuse of discretion.

Section 47.122 [, Florida Statutes (2009)

, ] governs the transfer of venue from one Florida county to another on the

basis of forum non conveniens. “For the convenience of the5 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.” § 47.122, Fla.

Stat

. (20 09). T here are three statutory factors a court considers in determining whether to grant a motion pursuant

to section 47.122 : (1) the convenience of the parties; (2) the convenience of the witnesses; a nd (3) the interest of justice.

Of the three factors, t he convenience of the witnesses is probably the single most important consideration of the three statutory factors. Th e plaintiff’ s for um selection is no longer

the f ac tor of over

- riding importance.

The third factor, that of the interests of justice, is a catch

all consideration including many considerations, and in some

close cases th is factor may be determinative. One consideration is the convenience of the attorneys which is usually accorded very little, if an y, weigh t

. . . .

Other considerations include but are not limited to the avoidance of a crowded court docket and the imposition of jury duty on an uninvolved community.

Pep Boys v. Montilla , 62 So. 3d 1162, 1165 (Fla. 4th DCA 2011) (internal

alterations

, citations, indentations, and some quotation marks omitted).

Applying the foregoing law to this case, we agree with the daughters

that the circuit court erred because their evidence showed that Broward County was not a convenient forum while Seminole County was the most

convenient forum. We address the three statutory factors in turn.

First, the convenience of the parties favors Seminole County. The

dau ghters’ affidavits establish ed that tw o of them reside in Seminole County , more than 200 miles from Broward County, and the third resides in adjacent Brevard County , more than 135 miles from Broward County

. Round trip travel would require several hours an d would be extremel y inconvenient. The law firm attempted to overcome the daughters’ agreement on this issue by alleging that when the law firm filed the declaratory judgment action, daughter Boyd resided in Broward County. While that allegation may have been relevant to whether Broward County

was a proper forum in which to file the declaratory judgment action, that allegation was not relevant to whether Broward County was a convenient forum to dispose of the combined actions, especially given that, by th e time daughter Boyd was served, she had moved to Seminole County

. T he law6 firm ’s and the attorney ’s location in Palm Beach County, near Broward County, is unpersuasive. Although the law firm and the attorney are parties in this case, they are also serving a s their own counsel . As we
stated in Pep Boys , “ the con venience of the attorneys . . . is usually accorded very little, if an y, weight.” 62 So. 3d at 1165.

Second, the convenience of the witnesses, “ probably the single most important considerat ion of the three statutory factors

, ” id.

, favors Seminole County. The daughters’ affidavits established that the witnesses who would testify regarding the mother’s cap acity to execute the 2002 POA

– the executive d irector of the living facility where the mother resided ; daughter Boyd’s adult children; and the neurological medical s taff who

treated the mother before and after she executed the 2002 POA

– reside in

or near Seminole County . Round trip travel to Broward County for these

witnesses would require several hours and would be extremel y inconvenient. The law firm and the attorney did not contest this evidence.

Third, the interests of justice favor Seminole County. The primary dispute pertains to the mother’s capacity when she executed the 2002 POA while residing in Seminole County. T he mother’s affairs were managed in Seminole County until she d ied

. The mother’s estate is in probate in Seminole County. Any proper ty being probated is in Seminole County.

In light of the application of the three statutory factors to the instant

case, the circuit court’s reasoning for denying the daughters’ motion lacks

merit. The law firm’s selection of Broward County as the venue is unpersuasive given that , once a motion to transfer based on inconvenient forum is filed, “[t] he plaintiff’ s for um selection is no longer the f ac tor of

over

- riding importance

. ” Id

. Finally, the court’s finding that “half the people are here and half ar e up there ” and “ it’s inconvenient for everybody”

is not supported by competent substantial evidence.

Based on the foregoing, we reverse the circuit court’s order denying the daughters’ amen ded motion to transfer venue on the ground of forum non

convenien s . We remand for transfer of the subject pending actions between the parties from Broward County to Seminole County.

Reverse d and remanded for proceedings consistent with this opinion

.

M AY and L EVINE
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.