NOT FINAL UNTIL TIME EX PIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT UNIVERSAL PROPERTY & CASUALTY ) INSURANCE CO., ) ) Appellant, ) ) v. ) Case No. 2D13-5490 ) STEPHEN LONG, ) ) Appellee. ) _________________________________ ) Opinion filed January 30, 2015. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Sam D. Pendino, Judge.

Brian A. Oltchick and Bernard I. Probst of Walton Lantaff Schroeder & Carson LLP, Tampa, for Appellant. Peter M. Cardillo of Cardillo Law Firm, Tampa, for Appellee.

NORTHCUTT, Judge.

After termites damaged Steven Long's Brevard County residence, he filed suit in Hillsborough County against two termite protection comp anies. In both cases, venue was transferred to Brevard. Long then sued his homeowner 's insurer, Universal Property and Casualty Insurance Co., after the insurer denied c overage for the alleged-2- collapse of the house due to hidden termite and decay damage. This suit, too, was filed in Hillsborough County. Universal first moved to dismiss the c omplaint and then answered it, but it did not raise the defense of improper venue . See Fla. R. Civ. P. 1.140(b). Ten months later, Universal filed a motion to transf er venue to Brevard County. It challenges the denial of that motion in this nonfin al appeal. See Fla. R. App. P. 9.130(a)(3)(A). We reverse. The parties agree that although Universal did not raise the de fense of improper venue, it could still seek to transfer venue under sec tion 47.122, Florida Statutes (2013). See Fla. Health Scis. Ctr. v. Elsenheimer, 9 52 So. 2d 575, 577 (Fla. 2d DCA 2007). That statute sets forth three bases for transfer ring venue: (1) the convenience of the parties, (2) the convenience of the witnesse s, and (3) the interest of justice. § 47.122. Although Universal's motion raised the three statutory conside rations, the

circuit court did not address them. It focused instead on the fact that the lawsuit had been set for trial. The court remarked at the hearing: [T]he case was filed in February. Effectively, 18 months has expired. If I agree with you that it's complex litigation, it' s met its time standard. Okay? So if I transfer this case it would be effectively continuing the trial. Your motion to transfer venue as to Universal and Steven Long, the original lawsuit, is denied. A circuit court may not ignore the three pertinent factors whe n deciding

whether a venue transfer under s ection 47.122 is proper. For e xample, the court in Peterson, Howell & Heather v. O'Neill, 314 So. 2d 808 (Fla. 3d DCA 1975), held that the

circuit court abused its discretion when it denied a section 47 .122 motion while failing to-3- recognize or address the convenience of the parties or the witn esses. The Third District remarked that a court "does not have the right to disregard the established principles and guidelines set forth by law for decision in such matters." Id. at 810. Observing that

the circumstances in that case established that the motion to t ransfer venue should have been granted, the O'Neill court reversed the denial of the defendants' motion. Similarly, in this case the three statutory considerations com pel our

conclusion that the suit should be transferred from Hillsboroug h County to Brevard County. Vis-a-vis the convenienc e of the parties, we acknowled ge that Long chose to file in Hillsborough County, and we assume that that county is convenient for him. But a plaintiff's choice of venue is not a paramount consideration; i t is merely a " 'meaningful one in assessing the convenience of the parties.' " Darby v. A tlanta Cas. Ins. Co., 752 So. 2d 102, 103 (Fla. 2d DCA 2000) (quoting J.L.S. v. R.J.L., 7 08 So. 2d 293, 295 (Fla. 2d DCA 1998)). Significantly, Long lives in Brevard, and certa inly that county would not be inconvenient for him. Universal's headquarters and sole off ice are in Broward County. The most important consideration when determining whether to g rant a

section 47.122 motion is the convenience of the witnesses. Els enheimer, 952 So. 2d at 578. As mentioned, this lawsuit involves termite damage to Lon g's Brevard County house and whether that damage was a covered peril under Univers al's homeowner's policy. Universal denied the claim based on a policy exclusion for damages arising out of "claims that are related to maintenance, rodent and insect i nfestation." Long's own

witness list establishes that the termite prevention companies that treated the residence-4- and their representatives are located in Brevard County. Other witnesses—from a construction company, an inspection service, a plastering and s tucco business, and an electrical service—are all located in Brevard County. Universa l's list identifies, among others from Brevard County, a witness from the County Building Department. The only witnesses from Hillsborough County are two experts, one for Lon g and one for Universal, who are expected to testify about the collapse of th e residence. The interests of justice also militate in favor of a venue tra nsfer. Long's suits against the termite protection companies were transferred to Brevard County. The Hillsborough circuit court permitted Universal to file third-pa rty claims against both of those companies, and those claims have been transferred to Brev ard County, as well. Thus, three suits involving termite damage to the residence are pending in Brevard. The only proceeding remaining in Hillsborough is Long's suit on Universal's policy. While there will certainly be coverage issues in that suit that differ from the issues in the others, Universal's denial of co verage is based on an exclusion for damages caused by insects. Moving the suit against Universal to Brevard County w ill avoid duplication of testimony. Many of the witnesses identified by the parties in this lawsuit will no doubt be witnesses in the Brevard suits, including the named defendan ts in Long's other suits and in Universal's third-party action. The court abused its discretion when refusing to grant Univers al's motion pursuant to section 47.122. We reverse and remand with directi ons to grant the motion.

DAVIS, C.J., and MORRIS, J., Concur.