THOMAS JASON IVEY, ETC., ET AL, APPELLANTS,
v.
JAMES L. PADGETT, JR., ET AL, APPELLEES
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Plaintiffs filed a legal malpractice action against defendant attorneys in Volusia County, and defendants moved to transfer venue to Putnam County where they resided. The court held that both the contract and tort causes of action accrued in Volusia County where the attorneys' services (filing a medical malpractice action) were to have been performed, making Volusia County proper venue and reversing the transfer.
Venue was proper in Volusia County. For breach of contract actions involving services, the cause of action accrues where the agreed services were to be performed. For tort actions, the cause of action accrues where the tortious act occurred. Here, both the contract and tort causes of action accrued in Volusia County where the defendants' alleged failure to timely file the medical malpractice action occurred.
[1] A cause of action for breach of contract accrues where the alleged breach occurs, which is where the defendant fails to perform the covenant allegedly breached.
[2] For a contract for the performance of services, the cause of action for failure to perform accrues where the agreed services were to have been performed.
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Join FLexlaw to unlock all legal intelligence“The venue of a cause of action for breach of contract is in the county where the cause of action accrued. The cause of action for breach of contract accrues where the alleged breach occurs. The breach occurs where the defendant fails to perform the covenant allegedly breached.”
Establishes the rule for determining venue in contract actions, particularly service contracts where breach is failure to perform.
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Join FLexlaw to unlock all legal intelligencePlaintiffs retained defendants, who are law partners residing in Putnam County, to file a medical malpractice action against a Volusia County physicia…
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COWART, Justice.
This is an interlocutory appeal from a non-final order which concerns venue. Fla. R.App.P. 9.130(a)(3)(A).
The plaintiffs filed a legal malpractice action sounding in contract and in tort against defendants, partners in a law firm, alleging that the defendants committed legal malpractice in failing to file, within the period of the statute of limitations, plaintiffs’ medical malpractice claim against a Volusia County physician. Plaintiffs contend the trial court erred in granting the defendants’ motion for change of venue from Volusia County to Putnam County as venue was proper in both counties.
The general venue statute (§ 47.011, Fla. Stat.) provides that 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. The defendants reside in Putnam County.
Carter Realty Company v. Roper Brothers Land Company, Inc., 461 So. 2d 1029, 1030 (Fla. 5th DCA 1985) states that:
The venue of a cause of action for breach of contract is in the county where the cause of action accrued. The cause of action for breach of contract accrues where the alleged breach occurs. The breach occurs where the defendant fails to perform the covenant allegedly breached.
See also Excel Insurance Co. v. Brown, 406 So. 2d 534 (Fla. 5th DCA 1981). When the contract is one for the performance of services, the cause of action for failure to perform the agreed services accrues where it is alleged that the agreed services were to have been, but were not, performed. Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981). In this case the defendants were to have filed a medical malpractice action in Volusia County where the alleged medical malpractice occurred and where the physician resided. Thus, the plaintiffs’ contractual cause of action against the defendants accrued in Volusia County where the defendants’ services, the timely filing of the medical malpractice action, were to have been performed.
In a tort action, the cause of action accrues where the act (or omission) creating the right to bring the action occurred. Gaboury v. Flagler Hospital, Inc., 316 So. 2d 642 (Fla. 4th DCA 1975). The alleged tortious act creating the plaintiffs’ right to bring this legal malpractice action was, again, the attorneys’ alleged negligent failure to timely file a medical malpractice action in Volusia County. Thus, the tort cause of action alleged by the plaintiffs against the defendants also accrued in Vo-lusia County.
The plaintiffs properly exercised their right to choose venue, and the defendants failed to prove that venue was improper in Volusia County, only that it was also proper in Putnam County. The plaintiffs’ choice of venue is favored under Florida law if the election is one which has been properly exercised. See Houston v. Caldwell, 359 So. 2d 858 (Fla.1978), and cases cited therein. We reverse the trial court’s transfer of venue from Volusia County to Putnam County and remand for further proceedings in Volusia County, Florida.
REVERSED.
UPCHURCH, C.J., and ORFINGER, J., concur.
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Am. Vehicle Ins. Co. v. Olive Goheagan, 35 So. 3d 1001 (Fla. 4th DCA 2010)…arose in the county where the decedent resided, the place where the contract, but for the occurrence of the breach, should have been performed.” Oliver, 542 So. 2d at 410 (citing Alliance Life Ins., 215 Kan. 937, 529 P. 2d 171). In Ivey v. Padgett, 502 So. 2d 22, 23 (Fla. 5th DCA 1986), plaintiffs filed a complaint against defendants alleging legal malpractice for failing to file a claim in Volusia County, where the underlying claim occurred, and appealed the trial court’s granting of a motion changing venu…
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Oliver v. Severance, 542 So. 2d 408 (Fla. 1st DCA 1989)…the defendant fails to perform the covenant that he allegedly breached. Perry Bldg. Sys. v. Hayes & Bates, Inc., 361 So. 2d 443, 444 (Fla. 1st DCA 1978) (venue was proper in county where defendant wrote letter renouncing contract); Ivey v. Padgett, 502 So. 2d 22, 23 (Fla. 5th DCA 1986) (legal malpractice action accrued in county where defendant failed to timely file complaint). Here, it is alleged that under the terms of his contract with Severance, Oliver was to procure workers’ compensation insurance cove…
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Schecter v. Fishman, 525 So. 2d 502 (Fla. 5th DCA 1988)…ion of its customary business, where the cause of action accrued, or where the property in litigation is located. The plaintiff’s choice of venue is favored under Florida law if the election is one which has been properly exercised. Ivey v. Padgett, 502 So. 2d 22 (Fla. 5th DCA 1986). The party seeking the change in venue has the burden of establishing that the initial choice of venue was improper and not just that venue is proper elsewhere. Ivey; Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1…
Previewing 3 of 7 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)
- Houston v. Caldwell, 359 So. 2d 858 (Fla. 1978)
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So. 2d 1029 (Fla. 5th DCA 1985)
- Excel Ins. Co. v. Brown, 406 So. 2d 534 (Fla. 5th DCA 1981)