MICHAEL MAGEE, A MINOR, BY AND THROUGH HIS MOTHER, NATURAL GUARDIAN, AND NEXT FRIEND, MARGARET MCGOWAN, AND MARGARET MCGOWAN, INDIVIDUALLY, APPELLANTS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, KEITH A. REILLY, AND MODERN WELDING COMPANY, A FOREIGN CORPORATION, APPELLEES
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In this interlocutory appeal, the Fourth District Court of Appeal reversed the trial court's transfer of a personal injury action from Palm Beach County to Glades County. The court held that defendants failed to support their venue challenge with sworn proof, leaving the burden on them to establish improper venue when the complaint does not affirmatively show venue is lacking.
The court reversed the transfer, holding that defendants bore the burden of pleading and proving improper venue when the complaint does not affirmatively show venue is lacking, and that this burden cannot be satisfied by unsworn allegations without supporting affidavits or sworn proof.
[1] The burden of pleading and proving improper venue is upon the defendants, assuming the complaint does not affirmatively show that venue is lacking.
[2] Allegations in an unsworn motion to dismiss or transfer venue must be established by sworn proof before the trial court.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The election of venue is initially with the plaintiffs. Assuming the complaint does not affirmatively show that venue is lacking, the burden of pleading and proving improper venue is upon the defendants.”
Establishes the foundational principle that plaintiffs choose venue and defendants must affirmatively prove improper venue
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Join FLexlaw to unlock all legal intelligenceMichael Magee, a minor, and his mother Margaret McGowan sued Keith A. Reilly (an alleged Florida resident) and Modern Welding Company (a Kentucky corp…
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RIVKIND, LEONARD, Associate Judge.
This is an interlocutory appeal from an order of the trial court which transferred the case from Palm Beach County to Glades County, Florida, upon appellees’ Motion to Dismiss or to Transfer. This case is a personal injury action arising out of the alleged negligent operation of a boat by appellee, Keith A. Reilly, and owned by appellee, Modern Welding Company. Appellee, Liberty Mutual Insurance Company, was joined as insurer. The complaint alleged that Reilly was a Florida resident, that Modern Welding Company was a Kentucky corporation, and that the accident occurred “. . . on the Rim Canal, approximately one mile east of Moore Haven, within the confines of the State of Florida . . .” The motion filed by appellees alleged that the accident occurred in Glades County, that Modern Welding Company was a foreign corporation which did not do business in Florida, nor did it have an office or place of business in Palm Beach County, and that Reilly was not a resident of Palm Beach County. The motion was unsworn and there were no affidavits or other proof sufficient to support the allegations of the motion. The election of venue is initially with the plaintiffs. Assuming the complaint does not affirmatively show that venue is lacking, the burden of pleading and proving improper venue is upon the defendants. The allegations of the unsworn motion to dismiss or to transfer were never established by sworn proof before the trial court. We reverse. Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977); Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So. 2d 730 (Fla. 4th DCA 1975); Stolley & Associates, Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971).
REVERSED.
DOWNEY, C. J., and BERANEK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Davis v. Fla. Power Corp., 492 So. 2d 829 (Fla. 2d DCA 1986)…ortation, 352 So. 2d 567 (Fla. 2d DCA 1977), we pointed out that the discretion of the trial judge under section 47.122 is not unbridled and must be predicated upon a proper showing of the statutory grounds. In Magee v. Liberty Mutual Insurance Co., 366 So. 2d 827 (Fla. 4th DCA 1979), the Fourth District Court of Appeal addressed a situation similar to that here, involving a motion to transfer for improper venue. The motion in that case was unsworn and there were no affidavits or other proof sufficient to sup…
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J.L.S. v. R.J.L. & State of Fla., 708 So. 2d 293 (Fla. 2d DCA 1998)…ies in the circuit court for the county in which either the plaintiff or defendant resides. See § 742.021, Fla. Stat. (1995). J.L.S.’s initial election of venue was proper because he resides in Polk County. See Magee v. Liberty [*295] Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979). Still, upon a sufficient showing, the circuit court is empowered to transfer the case to another proper venue for the convenience of the parties or witnesses, or in the interest of justice. See § 47.122, Fla. Stat. (1995); Stewa…
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Domenico Loiaconi v. Gulf Stream Seafood, Inc., 830 So. 2d 908 (Fla. 2d DCA 2002)…Id. That burden is not met where a defendant files an unsworn motion and does not present affidavits or other sworn proof in support of the motion. Davis v. Fla. Power Corp., 492 So. 2d 829, 829-30 (Fla. 2d DCA 1986); Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979). Moreover, while a trial court has broad discretion in dealing with matters of venue, the party challenging venue must provide a sufficient factual basis for the exercise of that discretion. Groome v. Abrams, 448 So. 2d 82, 83 (F…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977)
- Fla. Forms, Inc. v. Barkett Computer Servs., Inc., 311 So. 2d 730 (Fla. 4th DCA 1975)
- Stolley & Assocs., Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971)