HAZEL W. MACDONALD, APPELLANT,
v.
WILLIAM ALLEN MACDONALD, APPELLEE
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In a dissolution of marriage case, the wife appeals the trial court's grant of the husband's motion to change venue from Duval County to St. Johns County. The appellate court reverses, holding that the husband waived his venue objection by failing to raise it timely, and that the wife's amended petition did not fundamentally alter the cause of action in a way that would revive that waived objection.
The court held that the husband waived his venue objection by failing to raise it prior to or with his answer, and that the amended petition did not revive this waived objection because it did not fundamentally alter the cause of action or his position in the dissolution action.
[1] A motion to dismiss or transfer for improper venue is waived if not raised prior to or contemporaneously with the answer.
[2] An amended pleading that changes the relief requested but not the fundamental nature of the cause of action does not revive a waived objection to venue.
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Join FLexlaw to unlock all legal intelligence“the failure to raise improper venue prior to or contemporaneously with the answer results in a waiver of that privilege”
Establishes the fundamental procedural rule that venue objections must be timely raised or are waived.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition for dissolution of marriage in Duval County Circuit Court on July 6, 1983. The husband filed his answer five days later. On …
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McCORD, GUYTE P., Jr. (Retired), Associate Judge.
By this appeal the wife in this dissolution of marriage action contends that the trial court improperly granted her spouse’s motion for change of venue. We agree and reverse.
The facts to this appeal are undisputed. This dissolution action was commenced on July 6, 1983, when the wife filed a petition for dissolution of marriage in the Duval County Circuit Court. Some five days later, the husband filed his answer and subsequently moved the case be set for trial. Subsequently, on July 25, the wife moved the lower court to grant her leave to amend her petition for dissolution. This motion was granted, and she then filed an amended petition which differs from the original petition in only one respect, the relief requested: the initial petition asks that the parties’ real property be equitably distributed,- while the amended petition requests that the marital home be awarded as lump sum alimony.
Several days after the trial court orally granted the motion to amend (a written order was subsequently entered), the husband for the first time moved to dismiss or transfer the cause due to improper venue. He alleged that the parties were both resi dents of St. Johns County, that the cause of action accrued in St. Johns County because that is where the marriage became irretrievably broken, and that the parties own a home in St. Johns County that is part of the litigation in this cause. He also filed a counter-petition seeking partition of the parties’ real property. The trial court granted his motion, and this appeal ensued.
It has long been held that the failure to raise improper venue prior to or contemporaneously with the answer results in a waiver of that privilege. Fla.R.Civ.P. 1.140(h); Aquaco, Inc. v. Hopkin, 323 So. 2d 678 (Fla. 3d DCA 1975). Here, however, the husband contends that the wife’s amended petition, in particular her request for an award of the marital home as lump sum alimony, so substantially changes the cause of action as to revive his privilege to object to venue. We cannot agree.
A motion directed to an amended pleading cannot raise objections to retained portions of an original pleading when such objections were available and not urged or unsuccessfully urged on motion to the original pleading.
Beach Development Corporation v. Stimson, 159 So. 2d 113, 115 (Fla. 2d DCA 1963), cited approvingly in County of Volusia v. Atlantic International Investment Corporation, 394 So. 2d 477, 478 (Fla. 1st DCA 1981). Here, the objections advanced by the husband were available to him at the time his original answer was filed, and nothing in the amended petition fundamentally alters his position, in particular his defenses, vis-a-vis his spouse. Therefore, since the cause of action remains essentially the same, i.e., an action for dissolution of marriage, we reverse the trial court’s interlocutory order and remand this cause for further proceedings consistent with this opinion.
MILLS and WENTWORTH, JJ., concur.
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Marine Env't P'rs, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003)…arranty Servs., Inc., 837 So. 2d 1165 (Fla. 4th DCA 2003), any objection to venue is waived if it is not raised in the defendants’ answer. Copelco Leasing Corp. v. Besi Photo Shop, Inc., 678 So. 2d 17, 18 (Fla. 4th DCA 1996); MacDonald v. MacDonald, 444 So. 2d 531 (Fla. 1st DCA 1984). The filing of amended pleadings does not revive a waived venue argument. Id. In this case, the defendants answered without raising any venue objection. Hence, their right to a Colorado venue was also waived. We reverse the dism…
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Three Seas Corp. v. FFE Transp. Servs., Inc., 913 So. 2d 72 (Fla. 3d DCA 2005)…that the defendant’s waiver of the point applies to the entire case. “The filing of amended pleadings does not revive a waived venue argument.” Marine Envtl. Partners, Inc. v. Johnson, 863 So. 2d 423, 428 (Fla. 4th DCA 2003); MacDonald v. MacDonald, 444 So. 2d 531, 532 (Fla. 1st DCA 1984). [*76] For the stated reasons, we reverse the dismissal order and remand for further proceedings.…
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State v. Gulf-Atlantic Constructors, Inc., 727 So. 2d 305 (Fla. 1st DCA 1999)…home-venue privilege by failing to raise it in its answer to DOT’S initial third-party complaint. Failure to raise improper venue prior to or contemporaneous with a party’s answer constitutes waiver. Fla.R.Civ.P. 1.140(h)(1); MacDonald v. MacDonald, 444 So. 2d 531 (Fla. 1st DCA 1984). Once a pleading is amended and retains portions of the original pleading, a party may not thereafter raise defenses to the original portions of the pleading that it failed to timely assert against it. Id.; County of Volusia v. A…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cnty. OF Volusia v. Atl. Int'l Inv. Corp., 394 So. 2d 477 (Fla. 1st DCA 1981)
- Beach Dev. Corp. v. Stimson, 159 So. 2d 113 (Fla. 2d DCA 1963)
- Aquaco, Inc. v. Hopkin, 323 So. 2d 678 (Fla. 3d DCA 1975)