JERRY SOOWAL AND EAST MARSH NURSERY, INC., APPELLANTS,
v.
JAY W. MARDEN AND THE GLASSWORKS, INC., APPELLEES
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Soowal and East Marsh Nursery appealed a trial court's denial of their motion to dismiss for improper venue in a breach of settlement agreement case. The court reversed, holding that venue was improper in Dade County because the cause of action accrued in Broward County where the alleged trademark violation occurred, not where the settlement agreement was breached.
Venue was improper in Dade County and properly lay only in Broward County. For contract actions, a cause of action accrues where the contract is breached. Here, the breach occurred in Broward County when appellants used the disputed trademark at a trade show, not in Dade County where the failure to turn over materials occurred. The simple failure to send materials to Dade County, without more, does not constitute the actionable breach; the injury and damage occurred when the prohibited materials were used in Broward County.
[1] Venue for actions against domestic corporations is proper in the county where the corporation has an office for customary business, where the cause of action accrued, or…
[2] A suit for declaratory relief does not, in itself, constitute a cause of action for the purpose of determining venue; the underlying relief sought dictates venue.
Previewing 2 of 5 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“For venue purposes in a contract action, a cause of action accrues where the contract is breached.”
Establishes the governing legal standard for determining venue in breach of contract cases.
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Join FLexlaw to unlock all legal intelligenceThe parties entered into a settlement agreement on May 13, 1983, to stop appellants' alleged violation of appellees' trademark. Appellants allegedly u…
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PEARSON, TILLMAN (Ret.), Associate Judge.
• Jerry Soowal and East Marsh Nursery, Inc., a domestic corporation, appeal a non-final order of the trial court denying their motion to dismiss the complaint for improper venue. For reasons more fully developed herein, we reverse.
The underlying cause of action concerns an alleged breach of a settlement agreement which was entered into by the parties on May 13, 1983 to stop appellants’ alleged violation of appellees’ trademark. The complaint was filed after appellants allegedly used the disputed mark at a trade show in Hallandale, Florida on September 12, 1983. The complaint, filed in Dade County, was brought in three counts: breach of the settlement agreement, fraud and declaratory judgment. The complaint prayed for monetary damages and injunctive relief. Appellants filed their motion to dismiss, asserting that the requisites for laying venue in Dade County were not met and that venue was more properly laid in Broward County.
Section 47.011, Florida Statutes (1983), states:
“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”
Section 47.051, Florida Statutes (1983), states in relevant part:
“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located...”
It is uncontroverted that neither defendant resides in Dade County, the corporate defendant does not maintain an office in Dade County, and there is no property litigation in Dade County. To be sure, the location of defendants’ residence and office is in Broward County. Therefore, venue can only be proper in Dade County if the cause of action accrued here.
Since a suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the venue statute, it is the underlying relief sought which determines venue. The Florida Companies v. BFA Corp., 424 So. 2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981). For venue purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises, Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983); Vital Industries, Inc. v. Burch, 423 So. 2d 1023 (Fla. 4th DCA 1982); Windsor v. Migliaccio, supra, 399 So. 2d at 66. For venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to bring an action occurred. E.J. Sales & Service, Inc. v. Southeast First National Bank of Miami, 415 So. 2d 906 (Fla. 3d DCA 1982); Gaboury v. Flagler Hospital, Inc., 316 So. 2d 642 (Fla. 4th DCA 1975).
Appellants assert that the cause of action, if any, accrued in Broward County where the alleged prohibited use of the trademark took place. Appellees argue that the cause of action accrued in Dade County because the defendants’ failure to turn over all printed and other materials bearing the trademark to them in Dade County constituted a breach of the settlement agreement. We believe, however, that the simple failure to send materials to Dade County, without more, is not sufficient to state a cause of action. “A cause of action is some particular legal right of plaintiff against defendant, together with some definite violation thereof which occasions loss or damage.” Luckie v. McCall Manufacturing Co., 153 So. 2d 311, 314 (Fla. 1st DCA), cert. denied, 157 So. 2d 817 (Fla.1963). Thus, while the failure to send the materials may have been a violation of the settlement agreement, appellees sustained no injury or damage until the prohibited materials were allegedly used. That action occurred in Broward County. Therefore, all the statutory requirements for setting venue were met in Broward County and appellants’ motion should have been granted.
The decision of the trial court is reversed and remanded for further proceedings not inconsistent with this opinion.
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Citator
Cited By (13 total)
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Tucker v. Chantal Fianson, 484 So. 2d 1370 (Fla. 3d DCA 1986)…she died in another county. Moreover, contrary to the defendant’s assertion, the rule is not confined to personal injury or property damage cases; it applies equally to those which involve economic or intangible losses alone. E.g., Soowal v. Harden, 452 So. 2d 625 (Fla. 3d DCA 1984) (trademark infringement); E.J. Sales & Service, Inc. v. Southeast First National Bank of Miami, 415 So. 2d 906 (Fla. 3d DCA 1982) (conversion); see also Firstamerica Development Corp. v. Daytona Beach News-Journal Corp., 196 So. 2…1 / 2
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State v. Antioch Univ., 533 So. 2d 869 (Fla. 1st DCA 1988)…r’s intent and that Antioch was in fee simple possession of the land as a result of DNR’s actions. A suit for declaratory relief does not of itself constitute a cause of action rather, one must look to the underlying relief sought. Soowal v. Harden, 452 So. 2d 625 (Fla. 3d DCA 1984). In George v. Gustinger, 350 So. 2d 574 (Fla. 3d DCA 1977), the plaintiff sought a determination of his rights to certain real property, arguing that the gravamen of the complaint was a determination of his rights to the property…
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Oliver v. Severance, 542 So. 2d 408 (Fla. 1st DCA 1989)…iation, Inc., 400 So. 2d 50 (Fla. 5th DCA 1981) (suit sounding in both tort and contract could be brought where tort was complete). A suit for declaratory relief does not, however, constitute a “cause of action” for venue purposes. Soowal v. Marden, 452 So. 2d 625, 626 (Fla. 3d DCA 1984); Windsor v. Migliaccio, 399 So. 2d 65, 66 (Fla. 5th DCA 1981). Therefore, for venue to be proper in Columbia County, either the breach of contract or the tort action had to accrue in Columbia County- The law is well-establis…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gaboury v. Flagler Hosp., Inc., 316 So. 2d 642 (Fla. 4th DCA 1975)
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- E. J. Sales & Serv., Inc. v. Se. First Nat'l Bank OF Miami, 415 So. 2d 906 (Fla. 3d DCA 1982)
- Willis H. Luckie and his wife v. McCALL MFG. Co., Inc., 153 So. 2d 311 (Fla. 1st DCA 1963)
- Herrick v. Gross, 157 So. 2d 817 (Fla. 1963)
- Orange Blossom Enters., Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983)
- THE Fla. Cos. v. BFA Corp., 424 So. 2d 48 (Fla. 3d DCA 1982)
- Vital Indus., Inc. v. Burch, 423 So. 2d 1023 (Fla. 4th DCA 1982)