NEW HOLLAND, INC., APPELLANT,
v.
JAMES J. TRUNK D/B/A FRANKLIN EQUIPMENT COMPANY AND CAROL TRUNK, APPELLEES
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The court held that venue cannot be transferred from a county where replevin is properly brought, even if other claims exist, if the replevin action is not yet concluded.
[1] Venue for a replevin action must be in the county where the property is located.
[2] A court cannot transfer venue of only a portion of an entire lawsuit involving multiple counts or claims and counterclaims.
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Join FLexlaw to unlock all legal intelligenceThe trial court transferred venue from Orange County to Broward County. The lawsuit included a claim for replevin of goods located in Orange County.…
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DAUKSCH, Judge.
This is an appeal from an order transferring venue from Orange county to Broward County. Jurisdiction in this court to review this non-final order is provided for in Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure.
Because one of the causes of action alleged in the complaint concerns re-plevin of goods located in Orange County the lawsuit is properly maintained there and not Broward County. Section 47.122, Florida Statutes (1985) provides that venue can be transferred only to a county where the action initially could have been brought. Kilpatrick v. Boynton, 374 So. 2d 557 (Fla. 4th DCA 1979); Bingham v. Manson, 363 So. 2d 370 (Fla. 1st DCA 1978); Walt Disney World Co. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975); Amick v. Hanousek, 323 So. 2d 49 (Fla. 2d DCA 1975). Replevin actions can be brought only in the county where the property is located. § 78.03, Fla.Stat. (1985). In a multi-count suit or one involving claims and counterclaims the court cannot change venue of only a portion of the entire lawsuit. Zuckerman-Vernon Corp. v. Zelikoff, 303 So. 2d 391 (Fla. 3d DCA 1974); McCue v. Lane, 228 So. 2d 101 (Fla. 3d DCA 1969). See also Becker, Poliakoff & Streitfeld, P.A., v. Sachs, 404 So. 2d 1127 (Fla. 3d DCA 1981).
Appellees argue the court can transfer venue because a prejudgment writ of re-plevin has been entered and thus that portion of the lawsuit has been concluded. This is not factually accurate. No final judgment has been entered in the replevin matter and there is an affirmative defense raised by appellees alleging wrongful re-plevin which has yet to be decided. If appellees can support their wrongful re-plevin defense or otherwise prove the prejudgment replevin order was improperly sought or erroneously entered then it can be withdrawn. The replevin action is not yet dead, even though it may be gasping.
The order changing venue is quashed and this cause is remanded for completion at the trial court level.
ORDER QUASHED.
ORFINGER and SHARP, JJ., concur.
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Int'l Fid. Ins. Co. v. Prestige Rent-A-Car, Inc., 715 So. 2d 1025 (Fla. 5th DCA 1998)…and wrongful replevin are separate and distinct. Even when a party has employed the proper procedure in obtaining a prejudgment writ of replevin, there can still be a subsequent finding that the replevin was wrongful. See New Holland, Inc. v. Trunk, 511 So. 2d 746 (Fla. 5th DCA 1987); see also Auto-Owners Ins. Co. v. Hooks, 463 So. 2d 468 (Fla. 1st DCA 1985). The very purpose of the provision in section 78.068 requiring that a plaintiff in a prejudgment writ of replevin action post a bond is to protect the' d…
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REA v. Compactor-Baler Serv., Inc., 627 So. 2d 488 (Fla. 2d DCA 1993)…rds, personal property, accounts, funds, telephone, [and] telephone number” asserts an action in replevin. Thus, such an action must be commenced in the county where the property is located. See § 78.03, Fla.Stat. (1991); New Holland, Inc. v. Trunk, 511 So. 2d 746 (Fla. 5th DCA 1987). Moreover, with regard to the count grounded in conversion, it is a long-standing principle in Florida that venue is appropriate in the county “where the act creating the right to bring an action occurred.” E.J. Sales & Service,…
Authorities Cited
- Walt Disney World Co. & Ins. Co. of N. Am. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)
- Bingham v. Manson, 363 So. 2d 370 (Fla. 1st DCA 1978)
- Kilpatrick v. Jayne S. Boynton, 374 So. 2d 557 (Fla. 4th DCA 1979)
- McCUE v. Lane, 228 So. 2d 101 (Fla. 3d DCA 1969)
- Zuckerman-Vernon Corp. v. Murray Zelikoff, 303 So. 2d 391 (Fla. 3d DCA 1974)
- Amick v. Hanousek, 323 So. 2d 49 (Fla. 2d DCA 1975)
- Becker, Poliakoff & Streitfeld, P.A. v. Sachs, 404 So. 2d 1127 (Fla. 3d DCA 1981)