Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT _______________________ THOMAS R. POCOCK, Appellant, v. CHARLES R. POCOCK, as personal representative of the Estate of John M. Pocock; CHRISTIE N. McKINNELL, as the natural guardian of minor children, A.E.P. and M.L.P., and SMITH, THOMPSON, SHAW, COLON, and POWER, P.A., a Florida professional association, Appellees. No. 2D22-1180 _______________________ May 19, 2023 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Patricia Ann Muscarella, Judge. David P. Healy of Dudley, Healy & Heath, PLLC, Tallahassee, for Appellant. William H. Crawford of Thompson, Crawford, Brown & Smiley, Tallahassee, for Appellee Christie M. McKinnell. No appearance for remaining Appellees. NORTHCUTT, Judge. Thomas Pocock, a Pinellas County resident, appeals a nonfinal order transferring venue of his lawsuit from Pinellas County to Leon County.1 We reverse. The litigation arises from an intrafamily dispute over proceeds from the sale of the Tallahassee home of Pocock's late son, John Pocock. In addition to his father, John is survived by his ex-wife, Christie McKinnell; their minor children; and John's brother, Charles Pocock, who is the personal representative of John's estate. Thomas lent John $178,000 in 2003 and another $49,000 in 2014. The loans were evidenced by promissory notes and secured by first and second mortgages on John's home. In 2007, John obtained a life insurance policy in the amount of $250,000. At that time, he and McKinnell were married but had no children. The insurance policy designated McKinnell as primary beneficiary and Thomas as successor beneficiary. John and McKinnell divorced in 2015. John died in 2018. During the probate of his estate in Leon County, the court determined that the Tallahassee home was John's homestead and that as a matter of law it passed to Christie McKinnell as natural guardian of John's minor children. Meanwhile, because John and McKinnell were no longer married when he died, Thomas was paid the $250,000 death benefit as successor beneficiary of John's life insurance policy, per section 732.703(2), Florida Statutes (2018). In 2019, Thomas sued in Leon County to foreclose his mortgages on the Tallahassee home. That litigation followed a somewhat circuitous course, including a nonfinal appeal, Pocock v. Pocock, 301 So. 3d 1088 1 See Fla. R. App. P. 9.130(a)(3)(A) (authorizing appeals of nonfinal orders that concern venue). 2 (Fla. 1st DCA 2020), but we need not describe it beyond the following salient facts. McKinnell eventually was permitted to amend her pleadings to allege that Thomas and John had orally agreed that if the life insurance proceeds were paid to Thomas, they would be credited against the outstanding loan balances owed to him. Thomas disputes this assertion. The parties to the foreclosure suit ultimately stipulated that the home would be sold free and clear of Thomas's mortgages and the sales proceeds would be deposited in escrow to be held by Smith, Thompson, Shaw, Colon and Power, P.A., a Tallahassee law firm. The escrow agreement required Thomas to satisfy the mortgages of record, dismiss the foreclosure action, and proceed solely on the notes. Thereafter, the home was sold and the proceeds escrowed as agreed. Smith Thompson continues to hold the funds. The escrow agreement requires it to do so until it is directed to disburse the funds by court order or by instructions signed by McKinnell and Thomas. McKinnell remarried in the spring of 2020, and in April 2021 she and her husband purchased a home in St. Augustine. The next month, they closed on the sale of their home in Tallahassee, and sometime before June 1, they and the children moved to St. Augustine. In August 2021, Thomas voluntarily dismissed his Leon County action without prejudice and filed the instant lawsuit in Pinellas County. He seeks a money judgment for sums owed under the two notes and a declaratory judgment that he is entitled to the sales proceeds held in escrow by Smith Thompson. McKinnell filed a motion to transfer venue of the Pinellas County suit to Leon County pursuant to section 47.122, Florida Statutes (2021), which authorizes courts to transfer venue "[f]or the convenience of the 3 parties or witnesses or in the interest of justice." Following an evidentiary hearing, the circuit court ordered the lawsuit transferred based on the court's conclusion that Leon County is "a more appropriate forum for this action." In so doing, the court committed a legal error and an abuse of discretion. Both of the promissory notes at issue in this case contain the following venue selection provision: EACH PARTY CONSENTS TO BE SUED IN THE CIRCUIT COURT FOR PINELLAS COUNTY, OR THE FEDERAL DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION. It is well established that "parties may provide by their agreement where suit may be brought to enforce it." Interval Mktg. Assocs., Inc. v. Sea Club Assocs. IV, Ltd., 468 So. 2d 262, 263 (Fla. 2d DCA 1985) (citing Producers Supply, Inc. v. Harz, 6 So. 2d 375, 376 (Fla. 1942)). A contractual venue designation constitutes a waiver of venue based on inconvenience. E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr. Co., Inc., 114 So. 3d 311, 312 (Fla. 2d DCA 2013) (citing S.E. Office Supply & Furniture Co. v. Barley, 427 So. 2d 1139, 1140 (Fla. 5th DCA 1983)). A court may override this contractual waiver only when there are compelling reasons to do so. See E. Coast Metal Decks, 114 So. 3d at 312. Thus, in this case the court's belief that Leon County merely is a more appropriate forum was a legally erroneous basis for transferring venue. Although the circuit court recounted several bases for its belief that Leon was a more appropriate venue, none of them amounted to a compelling reason for disregarding the binding venue selection provisions in the promissory notes. To the contrary, even considering section 4 47.122 alone, venue in this action arguably is most appropriate in Pinellas County, and transferring the case was an abuse of discretion. See Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So. 2d 575, 578 (Fla. 2d DCA 2007) (noting that venue orders under section 47.122 are reviewed for abuses of discretion). Thomas Pocock, who exercised his contractual right to bring suit in Pinellas, resides in Pinellas County, is elderly, and is in poor health. Smith Thompson, whose interest in the outcome is merely that of an escrow agent awaiting instructions, is the only party located in Leon County. The circuit court emphasized the number of Leon County attorneys who have been involved in the parties' litigation, but that is not an appropriate factor in a section 47.122 analysis. See Inter-American Sunbelt Corp. v. Borozny, 512 So. 2d 287, 288 (Fla. 3d DCA 1987) (holding trial court abused its discretion by denying a motion to transfer based on "the convenience of counsel and of certain as yet unnamed expert witnesses"); Pep Boys v. Montilla, 62 So. 3d 1162, 1167 (Fla. 4th DCA 2011) ("[T]he location of the attorney is insufficient to warrant the trial court's denial of the defendants' motions to transfer."). Moreover, although some witnesses live in or near Leon County, the record fails to reflect that the Pinellas County venue would significantly inconvenience any of them. See Gov't Emps. Ins. Co. v. Burns, 672 So. 2d 834, 836 (Fla. 3d DCA 1996) (explaining that while the parties' residences are important, there must also be "a showing that the parties or witnesses will suffer substantial inconvenience or undue expense due to the chosen forum"). Indeed, there are now widely available means by which witnesses can testify remotely, as expressly contemplated in Florida Rule of General Practice and Judicial Administration 2.530, entitled "Communication Technology." Unsurprisingly, then, the circuit 5 court made no finding that any party or witness would suffer substantial inconvenience or undue hardship if the case remained in Pinellas County. A "plaintiff's choice of venue is presumptively correct, and the burden is clearly upon the party seeking a change of venue to demonstrate the impropriety of the plaintiff's selection." J.L.S. v. R.J.L., 708 So. 2d 293, 295 (Fla. 2d DCA 1998) (applying section 47.122) (citing Hu v. Crockett, 426 So. 2d 1275, 1278 (Fla. 1st DCA 1983)). McKinnell did not meet this burden even in the absence of Thomas's contractual right to pursue his suit in Pinellas County. She certainly did not demonstrate a compelling reason to override that right. Therefore, we reverse and remand with instructions that the action be returned to Pinellas County. Reversed and remanded. VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur. _______________________ Opinion subject to revision prior to official publication 6