SHALLE STEPHEN FINE, APPELLANT,
v.
CARNEY BANK OF BROWARD COUNTY, A STATE BANKING CORPORATION, APPELLEE
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Fine, a defendant in a promissory note action, appealed the denial of his motion to dismiss for improper venue. The Florida Fourth District Court of Appeal affirmed, holding that the parties' contractual waiver of venue objections and agreement to litigate in Broward County was valid and controlling over statutory venue requirements.
The court affirmed that the contractual waiver of venue in the promissory note is valid and controlling. The parties may establish appropriate venue by contractual provision, and such an agreement supersedes the statutory venue requirements for actions on promissory notes.
[1] A plaintiff is not required to plead or prove that their selected venue is proper; the burden of pleading and proving improper venue rests on the defendant.
[2] Evidence not considered by the lower tribunal is not properly before an appellate court for review.
Previewing 2 of 4 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“It is of the very nature of venue that plaintiff selects it initially, but need not plead or prove that his selection has been proper and the burden of pleading and proving that venue is improper, if such is the fact, is upon the defendant.”
Establishes that the defendant bears the burden of proving improper venue, not the plaintiff of proving it is proper.
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Join FLexlaw to unlock all legal intelligenceFine was sued by Carney Bank of Broward County on a promissory note. The note contained a provision in which Fine waived any pleas of jurisdiction or …
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HERSEY, Chief Judge.
Appellant, Fine, is the defendant in this action on a promissory note. His motion to dismiss for improper venue was denied. We affirm.
The contention by appellant that the complaint is defective for failure to aver venue is without merit. In Tribune Company v. Approved Personnel, Inc., 115 So. 2d 170, 172 (Fla. 1st DCA 1959), the court explained:
It is of the very nature of venue that plaintiff selects it initially, but need not plead or prove that his selection has been proper and the burden of pleading and proving that venue is improper, if such is the fact, is upon the defendant.
Appellant’s argument that Dade and not Broward County was the appropriate venue is also without merit.
Appellant is correct that section 47.061, Florida Statutes (1985), requires actions on unsecured negotiable or nonnegotiable promissory notes to be brought “only in the county in which such notes were signed by the maker ... or in which the maker ... resides.”
The only “evidence” that appellant signed the note in and resides in Dade County, however, is an affidavit which is contained in the index to appellant’s brief “to supplement the record on appeal.” That affidavit, not having been considered by the lower tribunal, is not properly before this court for review. See Finchum v. Vogel, 194 So. 2d 49 (Fla. 4th DCA 1966).
Furthermore, the promissory note involved here provides: “The maker hereby waives any pleas of jurisdiction or venue as not being a resident of Broward County, Florida, and hereby specifically authorizes any action brought upon the enforcement of this note to be commenced or suit filed in Broward County, Florida.”
There is no public policy reason, in the usual case, to preclude the parties from establishing appropriate venue by a contractual provision. Appellant’s citations of authority for a contrary position are inapposite. Also, as we held in Hallmark Industries, Inc. v. Scarborough Chemicals, Inc., 409 So. 2d 216 (Fla. 4th DCA 1982), an agreement between the parties as to venue, rather than section 47.061, Florida Statutes (1985), is controlling.
We therefore affirm the order denying appellant’s motion to dismiss.
AFFIRMED.
DOWNEY and ANSTEAD, JJ., concur.
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Williams v. Keith Robinson Oken, M.D., 62 So. 3d 1129 (Fla. 2011)…n the First District’s decision below and the district court decisions in Campbell v. State, 949 So. 2d 1093 (Fla. 3d DCA 2007), Fassy v. Crowley, 884 So. 2d 359 (Fla. 2d DCA 2004), St. Mary’s, 785 So. 2d 1261, Fine v. Carney Bank of Broward County, 508 So. 2d 558 (Fla. 4th DCA 1987), and Finchum v. Vogel, 194 So. 2d 49 (Fla. 4th DCA 1966). This Court granted review. Williams raises the following three issues on review: (1) whether the district court erred or exceeded its constitutional authority in reviewin…
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State v. Stang, 41 So. 3d 206 (Fla. 2010)…rt. It is a well established principle of law that appellate review is limited to the record on appeal. See E.I. DuPont De Nemours & Co. v. Native Hammock Nursery, Inc., 698 So. 2d 267, 270 (Fla. 3rd DCA 1997); Fine v. Carney Bank of Broward County, 508 So. 2d 558, 559 (Fla. 4th DCA 1987); Finchumm v. Vogel, 194 So. 2d 49, 51 (Fla. 4th DCA 1966). The dissent candidly disregards this rule by basing its opposition to the discharge of jurisdiction on matters [*207] not included in the record on appeal. The matte…
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Se. Bank, N.A. v. Serignese, 518 So. 2d 967 (Fla. 3d DCA 1988)…We reverse the order under review upon a holding that there is no public policy reason to prevent the parties from agreeing, as they did, that venue of any action to enforce the agreement be in Dade County, see Fine v. Carney Bank of Broward County, 508 So. 2d 558 (Fla. 4th DCA 1987), and no reason, in the usual case (which this most certainly is), not to permit such an agreement to control the venue of the suit. Reversed and remanded.…
Authorities Cited
- Tribune Co. v. Approved Pers., Inc., 115 So. 2d 170 (Fla. 1st DCA 1959)
- Finchum v. Finchum and Frances Finchum, 194 So. 2d 49 (Fla. 4th DCA 1966)
- Hallmark Indus., Inc. v. Scarborough Chems., Inc., 409 So. 2d 216 (Fla. 4th DCA 1982)