Third District Court of Appeal
State of Florida
Opinion filed February 1, 2023.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-2296 & 3D21-2320
Lower Tribunal No. 20-26978
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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
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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
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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.
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