PINCH-A-PENNY, INC., APPELLANT,
v.
NOEL L. MUDD, JR. AND VIRGINIA R. MUDD, D/B/A PINCH-A-PENNY, APPELLEES
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Pinch-A-Penny, Inc. appealed a venue transfer order from Pinellas County to Seminole County in a suit against franchisees. The court affirmed, holding that the parties' established course of conduct—making weekly payments to the creditor's truck driver in Seminole County—established a place of payment that overcome the default presumption favoring the creditor's residence.
The court affirmed the venue transfer, holding that the parties' six-year course of conduct of making weekly payments to Pinch-A-Penny's truck driver upon merchandise delivery in Seminole County was sufficient to overcome any presumption that payments were to be made at the creditor's residence in Pinellas County.
[1] A course of conduct between parties regarding the place of payment can overcome a presumption that payments are to be made in the creditor's county of residence.
[2] Where a franchise agreement does not specify a place of payment, evidence of the parties' actual payment practices may establish venue in the county where payments were c…
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Join FLexlaw to unlock all legal intelligence“where there is no agreement for the place of payment, a debtor must seek his creditor and venue properly lies in the county of the creditor's residence”
States the default rule for venue in debt collection actions when no payment location is specified
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Join FLexlaw to unlock all legal intelligencePinch-A-Penny, Inc., headquartered in Pinellas County, entered into a franchise agreement with the Mudds, Seminole County residents, in 1978. The Mudd…
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GRIMES, Acting Chief Judge.
This is an appeal from a nonfinal order transferring venue from Pinellas County to Seminole County. Fla.R.App.P. 9.130(a)(3)(A).
Appellees, Mr. and Mrs. Mudd, are residents of Seminole County. In 1978 they began operating a business in Seminole County under a franchise agreement with appellant, Pinch-A-Penny, Inc., a corporation headquartered in Pinellas County. In 1984 the Mudds ceased operating under the franchise agreement and began conducting business as Bud Mudd’s Pool and Patio. Pinch-A-Penny sued the Mudds in Pinellas County for monies owing on account and for an injunction for violation of an agreement not to compete. The Mudds filed a motion for change of venue to Seminole County. After considering affidavits and testimony, the court directed that venue of the action be transferred to Seminole County-
Pinch-A-Penny argues that its action was properly brought in Pinellas County upon the rationale that where there is no agreement for the place of payment, a debtor must seek his creditor and venue properly lies in the county of the creditor’s residence. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); B & F of Clearwater, Inc. v. Wesley Construction Co., 237 So. 2d 790 (Fla. 2d DCA 1970). Admittedly, Pinch-A-Penny’s franchise agreement does not specify where the Mudds’ payments were to be made. However, Mr. Mudd testified that during his six years of operation under the franchise agreement he made each of his weekly payments to the Pinch-A-Penny truck driver upon delivery of merchandise to his store in Seminole County. We think that such a course of conduct between the parties was sufficient to overcome any presumption that the payments were to be made in Pinellas County. Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977), does not dictate a contrary result because there the court simply observed that the making of one payment at another location would not overcome the implied agreement that future payments would be made at the creditor’s residence.
The court did not abuse its discretion in ordering a change of venue.
Affirmed.
CAMPBELL and LEHAN, JJ., concur.
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Carlson-Southeast Corp. & Seaboard Sur. Co. v. Geolithic, Inc., 530 So. 2d 1069 (Fla. 1st DCA 1988)…CA 1985); Valle v. Mador, (Fla. 3d DCA 1985) 478 So. 2d 416 at 418; Spalding v. VonZamft, 180 So. 2d 208, 210 (Fla. 3d DCA 1965). In this case, Carlson and Southeast rely on the course of conduct rationale explicated in Pinch-A-Penny, Inc. v. Mudd, 464 So. 2d 719 (Fla. 2d DCA 1985), as a basis for overcoming the rule that when place of payment is not specified, venue will lie in the creditor’s county of residence. In Pinch-A-Penny, the franchise agreement at issue did not specify the place of pay [*1074] men…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 115 Fla. 733 (Fla. 1934)
- Jung H. Moon v. Ima-Park Place, LLC (Fla. 3d DCA 2021)
- Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977)
- Hof's Printing & Rubber Stamp Shop, Inc. v. United States Leasing Corp., 237 So. 2d 790 (Fla. 1st DCA 1970)
- B & F OF Clearwater, Inc. v. Wesley Constr. Co., 237 So. 2d 790 (Fla. 2d DCA 1970)