A & M ENGINEERING PLASTICS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
ENERGY SAVING TECHNOLOGY CO., APPELLEE

Fla. 4th DCA | 1984-09-19
No. 84-714
DOWNEY and HERSEY, JJ., concur.
455 So. 2d 1124 Florida District Court of Appeal, Fourth District (1984) Positive Treatment
Cited by 15 cases

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Synopsis

A & M Engineering Plastics appeals the denial of a motion to transfer venue from Broward County to Pinellas County in a breach of contract action. The court reversed, holding that where a contract specifies F.O.B. delivery at the seller's location, the cause of action accrues at that location, making venue proper only in the seller's home county.


Holding

The court reversed and remanded, holding that the trial court erred in denying the motion to transfer venue. Since the contract specified F.O.B. Clearwater (in Pinellas County), the place of performance was in Pinellas County, making that the county where the breach occurred and where the cause of action accrued. Venue was proper only in Pinellas County, the defendant's principal place of business.


Headnotes

[1] Venue for a breach of contract action against a domestic corporation is proper in the county where the defendant corporation keeps an office, where the cause of action ac…

[2] In contract actions, the cause of action accrues in the county where the breach occurs.

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Key Quotes

“A cause of action in contract actions is said to accrue in the county in which the breach occurs. E.g., Windsor v. Migliaccio, 399 So.2d 65, 66 (Fla. 5th DCA 1981). Specifically, venue lies in the county where the covenant alleged to be breached was to have been performed.”

Establishes the rule that venue in contract actions is determined by where the covenant was to be performed

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Facts & Procedural History

A & M Engineering Plastics, a Florida corporation with its only office in Pinellas County, submitted a quote for plastic parts to Energy Saving Techno…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

This is an appeal from a non-final order denying a motion to transfer venue. We reverse and remand.

Appellant, a Florida corporation with its only office in Pinellas County, was asked to and did submit a quote on some plastic parts and moldings to appellee, also a Florida corporation, with its principal place of business in Broward County. Appellant made several shipments according to the contract, then informed appellee that a machinery breakdown would necessitate a temporary shutdown. In response, appel-lee filed suit for breach of contract in Bro-ward County. Appellant moved to abate or transfer the cause to Pinellas County. The trial court took the motion under advisement pending taking of a deposition. The court then denied the motion, and appellant brings this appeal.

The issue is whether the trial judge erred in denying the motion to transfer venue. We conclude it did.

When a domestic corporation is sued, section 47.051, Florida Statutes (1983), provides for venue in the county where the defendant corporation keeps an office, where the cause of action accrued, or where litigated property is located. A plaintiff may select any of these three venue alternatives, and his choice will be honored. Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So. 2d 443, 444 (Fla. 1st DCA 1978). In the instant case, the defendant corporation does not keep a Broward County office, nor is there litigated property in that county, so the only justification for laying venue in Broward County would be a finding that the cause of action accrued there.

A cause of action in contract actions is said to accrue in the county in which the breach occurs. E.g., Windsor v. Migliaccio, 399 So. 2d 65, 66 (Fla. 5th DCA 1981). Specifically, venue lies in the county where the covenant alleged to be breached was to have been performed. Id. In this case, the covenant allegedly breached was that of supplying certain plastic parts, but it is unclear where this covenant was to be performed. The written quotation contains the statement that “Prices are quoted F.O.B. Clearwater, FI.” The purchase order accepting the quotation contains no contrary term, nor is there any other evidence indicating a different arrangement. Where an agreement is expressed by forms, one of which contains a term that is neither rejected by the other form nor contradicted by any of its provisions, the term is generally considered incorporated. Cf. § 672.207, Fla.Stat. (1983). Given the above, the contract in question was to have been for shipment of the parts F.O.B. Clearwater. This means that the seller’s delivery point was in Clearwater, and there the risk of loss passed to the buyer. J. White & R. Summers, Uniform Commercial Code § 3-5 (2d Ed.1980).

A similar situation occurred in Speedling, Inc. v. Krig, 378 So. 2d 57 (Fla. 2d DCA 1979), in which Speedling had contracted to supply seedlings to Krig under a contract providing “all prices f.o.b. production area.” The court found there that because delivery was to occur at Spee-dling’s place of business, the cause of action accrued there because Speedling failed to deliver there. Venue was therefore correct in Speedling’s home county.

As in Speedling, in this case delivery was to be complete in the seller’s coun ty; therefore the failure to perform was in the seller’s county. Pinellas County is where the breach occurred, and the cause of action accrued. Pinellas County is also the site of the seller’s principal place of business, so venue was not appropriate in any place other than Pinellas County.

DOWNEY and HERSEY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Symbol Mattress OF Fla., Inc. v. Royal Sleep Prods., Inc., 832 So. 2d 233 (Fla. 5th DCA 2002)
    …So. 2d 627, 630 (Fla. 1st DCA 1999). Id. at 483. Generally, a plaintiff may choose to institute suit in any proper place of venue and such choice must be honored by the trial court. A & M Engineering Plastics, Inc. v. Energy Saving Technology Co., 455 So. 2d 1124 (Fla. 4th DCA 1984). In seeking a change of venue the defendant has the burden of clearly proving that the venue selected by the plaintiff is improper — it is insufficient to merely establish that venue is proper elsewhere. Inverness Coca-Cola Bottl…
  • Paul Gottlieb & Co., Inc. v. Alps S. Corp., 985 So. 2d 1 (Fla. 2d DCA 2007)
    …mirror image rule, the U.C.C. provides a more flexible approach. Under section 672.207(2), additional terms included in an acceptance are construed as proposals for addition to the contract. See A & M Eng’g Plastics, Inc. v. Energy Saving Tech. Co., 455 So. 2d 1124 (Fla. 4th DCA 1984). Between merchants, the terms become part of the contract unless they fall into an exception. § 672.207(2). Within the context of section 672.207(2), the parties do not dispute that they are merchants, that Gottlieb’s offer did n…
  • Weinberg v. Weinberg, 936 So. 2d 707 (Fla. 4th DCA 2006)
    …in litigation is located.” It is the prerogative of the plaintiff to select the venue of his or her suit, and when that choice is one of the three statutory alternatives, it will be honored. See A & M Eng’g Plastics, Inc. v. Energy Saving Tech. Co., 455 So. 2d 1124 (Fla. 4th DCA 1984). Here, the sons chose to bring their suit where the cause of action accrued. In [*709] Tucker v. Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986), the Third District explained that a tort claim accrues for venue purposes “where…

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