LINDA SCHECTER, APPELLANT,
v.
NEIL FISHMAN, ETC., ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in transferring venue because the cause of action accrued in Volusia County, where the plaintiff resided and payment was implicitly due.
[1] A plaintiff's choice of venue is favored under Florida law if the election has been properly exercised.
[2] The party seeking a change in venue bears the burden of establishing that the initial choice of venue was improper, not merely that venue is proper elsewhere.
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 intelligencePlaintiff sued defendants in Volusia County for fraud and breach of contract after they failed to make payments due under a settlement agreement. Defe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Implied Place Of Payment cases and more on FLexlaw
DANIEL, Judge.
Linda Schecter appeals this nonfinal order,1 contending that the trial court erred in transferring her suit against Neil Fish-man, Robert Miles and Fishman, Miles & Associates, Inc., formerly known as Schec-ter Associates, Inc., from Volusia County to Dade County. We agree and reverse.
In August 1982, Mrs. Schecter entered into a settlement agreement with Fishman, Miles and Schecter Associates which ended litigation brought by Mrs. Schecter against the defendants in Volusia County. Mrs. Schecter agreed to transfer all of her stock in Schecter Associates back to the corporation, voluntarily dismiss her lawsuit and execute a release in favor of the defendants except for sums due her under a wage continuation plan, the loan balance due her deceased husband and the claim for commissions due the husband. These sums were to be paid by the corporation at the rate of $500.00 per month beginning November 3,1982. Mrs. Schecter also agreed to deliver any funds remaining in a corporate account in Volusia County, as well as all corporate books and records, to Fish-man in Miami.
When Mrs. Schecter did not receive the November payment, she filed suit against the defendants in Volusia County for fraud and deceit, violation of a fiduciary duty, and breach of contract. Mrs. Schecter alleged that, at all material times, she has been a continuous and permanent resident of Volusia County, that Fishman has been the president, director and shareholder of the corporation, that Miles has been a director and shareholder of the corporation, and that the corporation was organized under the laws of Florida with its principal place of business in Miami, Dade County.
The defendants moved to transfer venue from Volusia County to Dade County. At the hearing on the motion, defense counsel stated that Miles lives in Atlanta, Georgia, that Fishman lives in Dade County, and that the corporation is in Dade County. It was uncontested that Mrs. Schecter lives in Volusia County. The court later entered an order transferring the case to Dade County.
Section 47.011, Florida Statutes (1985) 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 question is located. Section 47.051, Florida Statutes (1985) provides that actions against domestic corporations 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 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 1983).
For venue purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983); Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981). Where a cause of action is based on a failure to pay money due under the contract, the county where the payment was agreed to be made is where the breach of contract occurs and the cause of action on the contractual obligation accrues. Where the contract does not expressly provide a place of payment, it is implied that the debtor must seek the creditor and that payment is to be made in the county where the payee resides. Crescent Beach, Inc. v. Jarvis; Excel Ins. Co. v. Brown, 406 So. 2d 534 (Fla. 5th DCA 1981). Here , the settlement agreement did not expressly provide a place of payment and thus the defendants were required to seek Mrs. Schecter, the payee, where she resides. Mrs. Schecter resides in Volusia County and therefore the cause of action accrued in Volusia County and venue was proper in Volusia County. The defendants established only that venue was proper in Dade County but not that venue was improper in Volusia County.2 Since the plaintiff’s choice of venue is favored, the action should not have been transferred to Dade County. Accordingly, we reverse the trial court’s transfer of venue from Volusia County to Dade County and remand for further proceedings in Volusia County.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur. . Fla.R.App.P. 9.130(a)(3)(A).
. On appeal, the defendants argue that the action was properly transferred to Dade County pursuant to section 47.122, Florida Statutes (1985), the forum non conveniens statute. This section provides that for the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought. The court below, however, did not rely on this section but rather determined that Dade County was intended to be the situs of the agreement and its performance. However, as was noted above, the agreement was silent as to the place of payment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Barr v. The Fla. Bd. OF Regents, 644 So. 2d 333 (Fla. 1st DCA 1994)…ord, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990). Accord Williams v. Union National Insurance Co., 528 So. 2d 454, 456 (Fla. 1st DCA 1988); Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659 (Fla. 3d DCA 1990); Schecter v. Fishman, 525 So. 2d 502 (Fla. 5th DCA 1988). In Barry Cook Ford and in Williams, changes of venue granted by the respective trial courts were reversed, because defendants failed to show any impropriety in the statutory alternative selected by the plaintiff. The general ve…
-
Symbol Mattress OF Fla., Inc. v. Royal Sleep Prods., Inc., 832 So. 2d 233 (Fla. 5th DCA 2002)…ief centered around a claim of breach of contract. A breach of contract action accrues, for venue purposes, where the contract is breached; that is, where the defendant failed to perform the covenant that was allegedly breached. Schecter v. Fishman, 525 So. 2d 502 (Fla. 5th DCA 1988). Presumably, in concluding that venue was not proper in Orange County, the trial court determined that no breach of contract occurred in Orange County. Symbol Mattress challenges this conclusion, arguing that the alleged breach o…
-
Nasir M. Ashemimry v. Sheik Ahmed Abdul Rahman Saleh BA Nafa, 778 So. 2d 495 (Fla. 5th DCA 2001)…rlando and referred to the “Orlando” transaction, [*498] the investment in “Orlando,” and the “Orlando” project. The party seeking to change venue has the burden of establishing that the plaintiffs choice of venue was improper. Schecter v. Fishman, 525 So. 2d 502 (Fla. 5th DCA 1988). Here the trial court was presented with almost overwhelming evidence that the hotel was located in Orange County. See Whittington v. Laney, 566 So. 2d 599 (Fla. 5th DCA 1990)(defendant failed to meet burden of showing that venue…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983)
- Excel Ins. Co. v. Brown, 406 So. 2d 534 (Fla. 5th DCA 1981)
- Orange Blossom Enters., Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983)
- Kemp v. State, 502 So. 2d 22 (Fla. 5th DCA 1986)
- Ivey v. Padgett, 502 So. 2d 22 (Fla. 5th DCA 1986)