JOSEPH G. FINKELSTEIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RALPH T. BAILEY AND NATIONWIDE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANTS,
v.
JEFFERSON GODARD, JR., KENNETH VINCENT AND JEAN VINCENT, HIS WIFE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Third District Court of Appeal affirmed the trial court's denial of a motion to change venue in a negligence action arising from an automobile accident in Lee County, Florida. The court held that venue was proper in Dade County because one defendant (the personal representative of the deceased driver's estate) resided there, and that defendants waived their venue objection by not asserting it timely.
The court affirmed, holding that: (1) defendants waived their venue objection by not asserting it timely; (2) venue was proper in Dade County because one defendant, the personal representative, resided there; (3) defendants failed to demonstrate impropriety of the venue selection; and (4) defendants failed to demonstrate that the trial court abused its discretion in refusing transfer.
[1] A defendant waives any objection to venue by failing to timely assert the objection.
[2] Venue is proper in a county where a personal representative of an estate resides, even if the cause of action accrued elsewhere.
Previewing 2 of 4 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 defendant can compel that the action be brought in his county of residence or where the cause of action accrued”
Establishes the general principle that venue statutes protect defendants by requiring suit in their county of residence or where the cause of action arose
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn automobile accident occurred in Lee County, Florida, resulting in the death of Ralph Bailey, the driver. Plaintiffs sued in Dade County, naming Jos…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Venue Statutes cases and more on FLexlaw
HENDRY, Judge.
This is an appeal by the defendants from a non-final order of the Circuit Court of Dade County denying a change of venue in a negligence action which arose out of an automobile accident that occurred in Lee County, Florida. The accident resulted in the death of Ralph Bailey, the driver of the automobile who, plaintiffs allege, caused their injuries.
It is the defendants’ contention on appeal that the trial court erred in denying their motion to transfer the cause from Dade County to Lee County because of improper venue and under the forum non conveniens statute, section 47.122, Florida Statutes (1979).
The probate court of Lee County, at the suggestion of plaintiffs’ counsel, named Joseph Finkelstein, a resident of Dade County, as personal representative of Mr. Bailey’s estate. Plaintiffs amended their pending action in Dade County by naming the personal representative together with Nationwide Insurance Company, Mr. Bailey’s insurer. It was alleged that Nationwide was a foreign corporation doing business in Dade County, Florida. Service was made upon the personal representative and the insurance company. Whereupon the personal representative filed an answer and both defendants filed a joint motion to dismiss and transfer the cause to Lee County on the grounds that the accident occurred in Lee County and Mr. Bailey’s estate was being probated in Lee County. The motions were denied. It is from the denial of these motions that this appeal is taken.
Appellants argue that the venue statutes are for the protection of the defendant and unless waived, the defendant can compel that the action be brought in his county of residence or where the cause of action accrued, Gaboury v. Flagler Hospital, Inc., 316 So. 2d 642 (Fla. 4th DCA 1975); that since the cause of action admittedly arose in Lee County, venue is in Lee County- — venue would be in Dade County only if Nationwide has a representative or agent in Dade County, Section 47.051, Florida Statutes (1979); that the record does not reflect that Nationwide has an agent in Dade County, the complaint contains only an allegation that Nationwide is doing business in Dade County and that “doing business” is not the test, Walt Disney World Co. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975).
Appellants further argue that Nationwide’s pleadings alleging improper venue were not rebutted by plaintiffs’ showing in opposition to the various motions to change venue, thus the trial court was required to dismiss for improper venue, Majestic II, Enterprises, Inc. v. Butler, 372 So. 2d 548 (Fla.3d DCA 1979); Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So. 2d 443 (Fla. 1st DCA 1978). Appellants further contend that they were entitled to a transfer of the action on the ground of forum non conveniens since almost all of the witnesses are in Lee County and the trial there will cause the least amount of inconvenience and expense to parties required to answer and defend the action, Gaboury v. Flagler Hospital, Inc., supra; Peterson, Howell & Heather v. O’Neill, 314 So. 2d 808 (Fla.3d DCA 1975); section 47.-122, Florida Statutes (1979).
The appellees argue that the authorities relied upon for reversal are not controlling under pleadings and facts in the instant case. We agree and affirm upon a holding that: (1) the defendant-appellants waived any exception to venue by not timely asserting their objection, Fixel v. Clevenger, 285 So. 2d 687 (Fla.3d DCA 1973); (2) the venue chosen by plaintiffs was proper since one of the two defendants, appellant Fink-elstein (the personal representative of the estate of Ralph Bailey), resides in Dade County, O’Brien v. Mitchell, 190 So. 2d 189 (Fla. 1st DCA 1966); section 47.021, Florida Statutes (1979); (3) appellants have failed to demonstrate the impropriety of appel-lees’ selection of venue, Bassett v. Talquin Electric Cooperative, Inc., 362 So. 2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1374 (Fla. 1979); Davis v. Dempsey, 343 So. 2d 950 (Fla.3d DCA 1977); (4) appellants have failed to demonstrate that the trial court abused its discretion in refusing the transfer, Gaboury v. Flagler Hospital, Inc., supra; section 47.122, Florida Statutes (1979).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
The Mall Bank v. State, 462 So. 2d 519 (Fla. 1st DCA 1985)…nk v. Commercial Bank and Trust Company, 428 So. 2d 361 (Fla. 3d DCA 1983). The venue privilege was personal to the Insurer, Florida General Life Insurance Company. The Insurer waived the privilege by failing to assert it. See Finkelstein v. Godard, 404 So. 2d 831 (Fla. 3d DCA 1981). The present venue is proper and the denial of the motion to dismiss is AFFIRMED. WENTWORTH and NIMMONS, JJ., concur.…
-
Valle v. Mador, 478 So. 2d 416 (Fla. 3d DCA 1985)…that Mador’s failure to challenge the substituted service constituted a waiver of his venue privileges. Waiver of venue occurs only when a defendant fails to assert the privilege in a responsive pleading or in a timely motion, Finkelstein v. Godard, 404 So. 2d 831 (Fla. 3d DCA 1981); Aquaco, Inc. v. Hopkin, 323 So. 2d 678 (Fla. 3d DCA 1975); Fla.R.Civ.P. 1.140(h), or by stipulation, agreement, or consent. Ringling Bros. Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314, 316 (Fla. 1st DCA), cert. d…
Authorities Cited
- Gaboury v. Flagler Hosp., Inc., 316 So. 2d 642 (Fla. 4th DCA 1975)
- W. D. Little, Jr., M.D. v. Smeltzer, 361 So. 2d 443 (Fla. 2d DCA 1978)
- Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977)
- Fixel v. Clevenger, 285 So. 2d 687 (Fla. 3d DCA 1973)
- Peterson v. O'Neill, 314 So. 2d 808 (Fla. 3d DCA 1975)
- Walt Disney World Co. & Ins. Co. of N. Am. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)
- Bassett v. Talquin Elec. Coop., Inc., 362 So. 2d 357 (Fla. 1st DCA 1978)
- Majestic II v. Butler, 372 So. 2d 548 (Fla. 3d DCA 1979)
- O'Brien v. Mitchell, 190 So. 2d 189 (Fla. 1st DCA 1966)