LIBERTY MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, MODERN WELDING COMPANY, A KENTUCKY CORPORATION, AND KEITH REILLY, AN INDIVIDUAL, APPELLANTS,
v.
MICHAEL MAGEE, A MINOR, BY AND THROUGH HIS MOTHER, NATURAL GUARDIAN, AND NEXT FRIEND, MARGARET MCGOWAN, AND MARGARET MCGOWAN, INDIVIDUALLY, APPELLEES

Fla. 4th DCA | 1980-11-05
No. 79-1600
Letts, C.J., Moore, J., Anstead, J.
389 So. 2d 1090 Florida District Court of Appeal, Fourth District (1980) Positive Treatment
Cited by 2 cases

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Synopsis

The court reversed the trial court's denial of a venue transfer, holding that appellants established by affidavit that the boating accident cause of action accrued in Glades County, Florida, requiring transfer under Florida Statutes § 47.011.


Holding

A defendant's affidavit establishing that a boating accident occurred in Glades County, Florida is sufficient sworn proof to support a motion to transfer venue.


Headnotes

[1] A defendant's affidavit establishing the location where a cause of action accrued constitutes sufficient sworn proof to support a motion to transfer venue under Florida S…

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Facts & Procedural History

A boating accident occurred on the Rim Canal approximately one mile east of Moore Haven, Florida. Appellants filed an affidavit stating the vessel was…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from the denial of a “motion to dismiss or to transfer” based upon improper venue. In a previous appeal of this same matter1 this Court held that appellants (defendants) had failed to establish proper venue by sworn proof and we reversed an order granting a change in venue. On remand, the trial court denied a further transfer of the cause after the appellants had attempted to show, by affidavit, that the cause of action accrued in Glades County, Florida.

Appellees alleged in their complaint that a boating accident occurred “on the Rim Canal approximately one mile east of Moore Haven, within the confines of the State of Florida. . . . ” Appellants’ motion to dismiss or transfer was accompanied by an affidavit of the individual defendant wherein he stated that he operated his vessel “on the Rim Canal one mile east of Moore Haven, Glades County, Florida.” We take judicial notice that one mile east of Moore Haven, Florida is wholly within the boundaries of Glades County, Florida, and the Rim Canal is bordered on both sides by lands within Glades County. Accordingly, this cause of action accrued in Glades County and appellants’ affidavit was sufficient to support the motion for transfer. See Section 47.011, Florida Statutes (1979).

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur. ANSTEAD, J., dissents with opinion.

. Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979).

Dissent
ANSTEAD, Judge,

ANSTEAD, Judge,

dissenting:

Although I am sympathetic with the result reached by the majority, it is difficult to square that result with the provisions of Chapter 47, the venue statute, and specifically Section 47.071 thereof which provides:
Jurisdiction over navigable waters.When the territorial jurisdiction of a court extends to one bank of any navigable water, such court has jurisdiction across such navigable water from shore to shore. If the territorial jurisdiction of different courts, whether of the same county or not, extends to the opposite bank of any navigable water, such courts have concurrent jurisdiction across said navigable water from shore to shore.

The territorial jurisdiction of the Circuit Court of Palm Beach County extends to one bank of the navigable body of water involved herein. Accordingly, Section 47.071 clearly authorizes the action involved herein to be filed in Palm Beach County as well as Glades County. See Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So. 2d 441 (1946). That being so, I believe the appéllants have failed to demonstrate error by the trial court. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne and Trust Co., 238 So. 2d 665 (Fla. 4th DCA 1970).


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Citator

Cited By

  • Cordova v. State, 675 So. 2d 632 (Fla. 3d DCA 1996)
    …65) (population statistics); Barry v. Garcia, 573 So. 2d 932, 933 n. 1 (Fla. 3d DCA), rev. denied, 583 So. 2d 1034 (Fla.1991) (prior civil unrest); Graves v. State, 587 So. 2d 633 (Fla. 3d DCA 1991) (geographic fact); Liberty Mut. Ins. Co. v. Magee, 389 So. 2d 1090 (Fla. 4th DCA 1980) (same). Despite our holding that the lower court incorrectly judicially noticed the fact that Cordova was served with the injunction, “[w]e apply the familiar rule that an appellate court will not reverse when the trial court re…

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