JERRY MILLER, SHELLEY MARLENE MILLER, STEVEN FRANKLIN BRUCE AND ALLSTATE BAIL BONDS, INC., APPELLANTS,
v.
SOUTHLAND INSURANCE COMPANY, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Appellants challenged a trial court's denial of their motion to change venue from Palm Beach County. The court held that once defendants file a verified motion with affidavits controverting venue, the burden shifts to the plaintiff to prove proper venue, which the appellee failed to do.
The court reversed, holding that once a defendant challenges venue with an affidavit controverting the plaintiff's venue allegation, the burden shifts to the plaintiff to prove that the selection of venue is proper. Because appellee failed to meet this burden, the motion to change venue should have been granted.
[1] Venue for an action against a defendant must be in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is locat…
[2] Actions against a domestic corporation must be brought in the county where the corporation has an office for its customary business, where the cause of action accrued, or…
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Join FLexlaw to unlock all legal intelligence“Absent a challenge by a defendant, an unsworn complaint is sufficient to allege venue. However, once a defendant has challenged venue with an affidavit controverting a plaintiff's venue allegation, the burden is upon the plaintiff to prove that the selection of venue is proper.”
Establishes the shifting burden of proof standard for venue challenges; once defendants file verified affidavits, plaintiff must prove proper venue.
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Join FLexlaw to unlock all legal intelligenceAppellee filed suit in Palm Beach County Circuit Court alleging breach of contract, conversion, breach of fiduciary duty, theft, and RICO violations. …
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DELL, Judge.
Appellants challenge an order denying their verified motion to abate and/or change venue. Appellee filed an action in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. Appellee’s complaint alleged, among other things, a breach of contract, conversion, breach of fiduciary duty, theft and violation of the RICO statute.
Appellants filed a verified motion to abate or change venue. Appellants stated in their motion that all of the individual defendants resided in Broward County, Florida and that Allstate Bail Bonds, Inc. maintained its sole and only place of business in Dade County, Florida. They further stated that the place for performance of the contract was Dade County, Florida and that “no other acts or other thing relevant to the above styled matter transpired or occurred in Palm Beach County, Florida....” Appellee did not offer any evidence by way of affidavit or otherwise to contradict appellants’ verified motion and accompanying affidavits.
Appellee did not expressly allege a breach of the contract in Palm Beach County. Although the trial court found that “the parties’ agreement appears to require certain deliveries in Palm Beach County, Florida,” appellants’ verified motion and supporting affidavits assert the place for performance was Dade County, and that nothing transpired or occurred in Palm Beach County relevant to the above styled matter. Section 47.011, Florida Statutes (1985) provides:
Where actions may be begun. — 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. Section 47.051 provides: Actions against corporation. — Actions against domestic corporation shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.
The district court said in Tropicana Products, Inc. v. Shirley, 501 So. 2d 1373 (Fla. 2d DCA 1987) that Absent a challenge by a defendant, an unsworn complaint is sufficient to allege venue. However, once a defendant has challenged venue with an affidavit controverting a plaintiff’s venue allegation, the burden is upon the plaintiff to prove that the selection of venue is proper. Eth-Wha, Inc. v. Blankenship, 483 So. 2d 872, 873 (Fla. 2d DCA 1986); Holiday Truck & Car Sales, Inc. v. Coldewey, 434 So. 2d 344, 345 (Fla. 2d DCA 1983).
Id. at 1375.
Accordingly we reverse the trial court’s order denying appellants’ motion to abate and/or change venue. We remand this cause to the trial court with directions to enter such further orders as may be consistent herewith.
REVERSED and REMANDED.
DOWNEY and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Frederick W.J. Eggers v. Eggers, 776 So. 2d 1096 (Fla. 5th DCA 2001)…rder denying transfer of venue, deny the petition for writ of certiorari, and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. PETERSON and PALMER, JJ„ concur. . Cases such as Miller v. Southland Ins. Co., Inc., 513 So. 2d 800 (Fla. 4th DCA 1987) and Tropicana Products, Inc. v. Shirley, 501 So. 2d 1373 (Fla. 2d DCA 1987) relied upon by Frederick for the proposition that where a defendant files a sworn motion and affidavits challenging venue, the burden shifts to the plain…
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Am. Vehicle Ins. Co. v. Olive Goheagan, 35 So. 3d 1001 (Fla. 4th DCA 2010)…a challenge by a defendant, when a defendant challenges venue by filing an affidavit controverting the plaintiff’s venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection. Miller v. Southland Ins. Co., 513 So. 2d 800, 801 (Fla. 4th DCA 1987) (citing Tropicana Prods., Inc. v. Shirley, 501 So. 2d 1373, 1375 (Fla. 2d DCA 1987)). If the defendant makes the proper showing, the court should, if possible, transfer the case to the correct venue, pursuant to Florida Rule…
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AIR S., Inc. v. Spaziano, 547 So. 2d 314 (Fla. 4th DCA 1989)…elected by the plaintiff is improper. Once the defendant challenges venue with an affidavit controverting the plaintiff’s venue allegations, the burden shifts to the plaintiff to prove it selected the proper venue. Miller v. Southland Insurance Co., 513 So. 2d 800, 801 (Fla. 4th DCA 1987). Venue is determined by the facts at the time a lawsuit is filed. Valle v. Mador, 478 So. 2d 416 (Fla. 3d DCA 1985). The dispositive date is 1988 when the complaint was filed not 1984 when the crash landing occurred. During…
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
- Tropicana Prods., Inc. v. Hoke H. Shirley, 501 So. 2d 1373 (Fla. 2d DCA 1987)
- Long v. State, 483 So. 2d 872 (Fla. 1st DCA 1986)
- Holiday Truck & CAR Sales, Inc. v. Rolf Coldewey, 434 So. 2d 344 (Fla. 2d DCA 1983)