DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LINDA W. BOTTA, individually, BETHANY B. BOYD, individually, and

NANCY D. COLACHICCO, individually,

Appellants,

v.

CIKLIN, LUBITZ & O’CONNELL, a Partnership of Professional

Associations, and BRIAN M. O’CONNELL, ESQ., individually,

Appellees.

No. 4D17-379

[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.

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

for appellants.

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

Ciklin Lubitz & O’Connell, West Palm Beach, for appellees.

GERBER, C.J.

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

their amended motion to transfer the underlying actions from Broward 

County to Seminole County 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 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 executed 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.
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In 2002, the mother executed a new durable power of attorney which 

the law firm drafted. The 2002 POA appointed only 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 Seminole County. After the mother’s estate went into probate, 

daughters Botta and Boyd alleged that the 2002 POA, appointing only 

daughter Colachicco as agent, was invalid.

The law firm, as the drafter of the 2002 POA, filed an action in Broward 

County seeking 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, coercion 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 three daughters as defendants to the action

based on their “antagonistic and adverse interests.”

However, by the time the law firm filed its lawsuit, the three daughters 

had resolved their differences. Daughters Botta and Boyd then filed a 

malpractice counterclaim/third-party complaint against the law firm and 

the attorney who drafted 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 losses to them.

The three daughters also united to file an amended motion to transfer 

venue from Broward County to Seminole County. In 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 extremely inconvenient. The mother resided 

in Seminole County when she executed the 2002 POA. The mother’s

affairs were managed in Seminole County until she died. The mother’s 

estate was in probate in Seminole County. Any property being probated 

was in Seminole County. No connection existed to Broward County.
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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 director 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 resides in Seminole County, more than 200 miles from 

Broward County. Round trip travel would require several hours and 

would be extremely inconvenient.

• Boyd’s adult children, who spent a significant amount of time with 

the mother, observing her physical and mental health. They reside 

in Seminole County, more than 200 miles from Broward County. 

Round trip travel would require several hours and would be 

extremely inconvenient.

 

• The neurological medical staff 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 hours and would be extremely 

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 services were provided in Palm Beach County, but rather where 

the resulting harm was suffered by them in Seminole County.

In response 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 motion to dismiss 

or transfer. No witnesses testified. The law firm’s attorney presented the 
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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 daughters’ 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 and 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 court 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 are up there, so that’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.

This appeal followed. The daughters have limited their appeal to 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

We 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 

venue 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 the 
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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. (2009). There 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; and (3) the interest of justice.

Of the three factors, the convenience of the witnesses is 

probably the single most important consideration of the three 

statutory factors. The plaintiff’s forum selection is no longer 

the factor of over-riding importance.

The third factor, that of the interests of justice, is a catchall consideration including many considerations, and in some 

close cases this factor may be determinative. One 

consideration is the convenience of the attorneys which is 

usually accorded very little, if any, weight. . . .

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 

daughters’ affidavits established that two 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 and would be extremely 

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 the time 

daughter Boyd was served, she had moved to Seminole County. The law 
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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 as their own counsel. As we 

stated in Pep Boys, “the convenience of the attorneys . . . is usually 

accorded very little, if any, weight.” 62 So. 3d at 1165.

Second, the convenience of the witnesses, “probably the single most 

important consideration of the three statutory factors,” id., favors 

Seminole County. The daughters’ affidavits established that the witnesses 

who would testify regarding the mother’s capacity to execute the 2002 POA 

– the executive director of the living facility where the mother resided; 

daughter Boyd’s adult children; and the neurological medical staff 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 extremely 

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. The mother’s affairs were managed in 

Seminole County until she died. The mother’s estate is in probate in 

Seminole County. Any property 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 forum selection is no longer the factor of 

over-riding importance.” Id. Finally, the court’s finding that “half the 

people are here and half are 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’ amended motion to transfer venue on the ground of forum non 

conveniens. We remand for transfer of the subject pending actions 

between the parties from Broward County to Seminole County.

Reversed and remanded for proceedings consistent with this opinion.

MAY and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.