JAMES M. CLARKE, SPECIALTY SECURITIES, INC., AND AMERICAN CAPITAL EQUITIES, APPELLANTS,
v.
WAYNE D. CARTEE, ALICE CARTEE, AND WAYNE D. CARTEE, M.D., P.A., APPELLEES
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Clarke and other stockbrokers appealed the denial of their motion to transfer venue from Escambia County to Orange County. The court reversed, holding that the cause of action accrued in Orange County where the defendants' alleged breach of duty to perform occurred, making venue improper in Escambia County.
The court held that venue properly lies in Orange County, not Escambia County. The cause of action accrued in Orange County where Clarke's alleged breach of duty to perform occurred. Clarke's potential intention to open an office in Escambia County and his contacts with other investors from various locations do not establish that the cause of action accrued in Escambia County.
[1] A lawsuit may be brought in the county where the defendant resides or where the cause of action accrued.
[2] A plaintiff must plead facts establishing an exception to the general venue statute if suing in a county other than the defendant's residence.
Previewing 2 of 6 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“if a plaintiff is to maintain his suit in a county other than that of the defendant's residence, the complaint should circumscribe facts which bring the cause within an exception set forth in the applicable venue statute.”
Establishes the burden on plaintiffs to plead facts supporting venue outside the defendant's county of residence
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Join FLexlaw to unlock all legal intelligenceAppellees owned shares in two corporations and instructed appellant Clarke, a stockbroker with offices in Orange County, to sell half their shares. Cl…
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SHIVERS, Chief Judge.
Appellants appeal an order denying their motion to transfer venue. We have jurisdiction pursuant to Fla.R.App.P. 9.130(a)(3)(A), applicable to review of non-final orders which concern venue, and we reverse and remand with directions.
Appellees filed a four-count complaint in Escambia County against appellants. The appellants are stockbrokers and investment advisors whose regular place of business is in Orange County. According to the appel-lees’ complaint, appellees owned 10,000 shares of Pac-Man Resources, Inc. and 15,-000 of 2001 Resources, Ltd. The complaint alleges that in October 1987, appellee Alice Cartee called appellant James Clarke and instructed him to sell half of their shares in each corporation. Clarke advised her not to sell and represented that a “stop-loss” order would protect their investments. Eventually the stocks dropped below the established stop-loss price levels but the stocks were not sold. Clarke informed Mrs. Cartee that the stop-loss orders had not been effective because the Vancouver Stock Exchange, at which appellees stocks were traded, did not honor stop-loss orders.
Appellants filed a motion to, inter alia, transfer for improper venue and their motion was denied.
At the hearing on this motion, the following facts were adduced on which the trial court’s denial was apparently based and on which appellees rely in answering appellants’ arguments on appeal: Alice Cartee stated that Clarke told her he was making frequent trips to Es-cambia County because he was going to be opening an office in that area. She said she spoke with Clarke several times when he was in places other than his Orlando office. She said she had numerous conversations with Mr. Clarke regarding the stop-loss order while he was in both Pensacola and Orlando but she could not remember where he was when she initially called to sell the stock and he recommended stop-loss orders. Other evidence was adduced that Clarke spoke to other investors from places other than his Orlando office.
Section 47.011, Fla.Stat. (1987), in pertinent part, permits a lawsuit to be brought only in the county where the defendant resides or where the cause of action accrued. If venue in this case is proper in Escambia County, it must be on the ground that the cause of action accrued in Escam-bia County because there is no competent evidence that Clarke resided in Escambia County at any time. Indeed, the trial court’s order reflects that, based on appellants’ residency, venue is proper in Orange County, but based on where the cause of action accrued, venue is proper in Escambia County. The trial court concluded it was plaintiff’s choice to sue in either county-
Generally, a plaintiff is not required to plead and prove venue. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So. 2d 100 (Fla.1955). But if a plaintiff is to maintain his suit in a county other than that of the defendant’s residence, the complaint should circumscribe facts which bring the causé within an exception set forth in the applicable venue statute. James A. Knowles, Inc. v. Imperial Lumber Company, 238 So. 2d 487 (Fla. 2d DCA 1970).
Hart v. Handling Systems Engineering, Inc., 502 So. 2d 1319, 1320 (Fla. 1st DCA 1987). The exception provided in section 47.011 is that venue may also lie where the cause of action accrued. Appellees’ complaint does not set forth facts establishing the requisite exception, i.e. that the cause of action accrued in Escambia County, and no facts establishing an exception were brought out at the hearing on the venue issue. Further, Alice Cartee’s statement that Clarke had told her that he intended to move to Escambia County is of no import to a venue determination, and the same is true of Mr. Clarke’s contacts with other investors.
In a suit based on a breach of contract theory, “the critical determination ... is where performance is called for by the contract, not where its benefits are to be enjoyed.” James A. Knowles, Inc. v. Imperial Lumber Company, 238 So. 2d 487, 489 (Fla. 2d DCA 1970) (emphasis in original).
If the nature of the performance is the performance of the act of payment of money due or earned under the contract, then venue properly lies where payment was to occur. Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981).
In the instant case there is not a breach of an agreement to pay money, but instead, a failure to perform an act which would protect the appellees’ investment interest. As in the case advanced by appellant, Earl W. Shomber & Company v. Florida Casino Associates, 469 So. 2d 936 (Fla. 3d DCA 1985), there did not exist a debtor/creditor relationship between the appellants and the appellees and thus the venue rules pertaining to suits to enforce payment on a debt are inapplicable. In Earl W. Shomber & Company, the defendant wrongfully withheld and refused to transfer certain es-crowed funds in violation of the escrow agreement. The court distinguished the debt enforcement cases and found that venue properly lay where the wrongful acts were committed — where the escrow funds were located.
Clarke’s alleged breach of duty to perform, and the location of that breach at the time it occurred, is dispositive to a venue determination. There is no indication in the record that the breach of duty to perform occurred at any other place other than in Orange County, appellants’ regular place of business.
Thus, whether appel-lees’ theory is based in tort or contract, Clarke’s failed performance gave rise to a cause of action which accrued in Orange County and venue properly lies there. See American International Food Corporation v. Lesko, 358 So. 2d 250 (Fla. 4th DCA 1978). In Lesko the court reversed and remanded a venue determination that placed the lawsuit in the county of the plaintiff who alleged the defendant breached its contract by failing to properly care for certain citrus trees, failing to account for profits, and failing to provide an accounting. The court found that the .suit was not based on a promise to pay a certain sum of money owed, but a suit for breach of contract and tort to recover un-liquidated damages.
The court concluded that venue could not be in Palm Beach County (where plaintiff resided), but could be in Charlotte County (the citrus trees’ situs and point where the cause of action accrued) or DeSoto County (where defendant’s business was located). Lesko guides the decision in this case.
Appellees further contend that venue is proper in Escambia County under the Florida Deceptive and Unfair Trade Practices Act. The Act does not provide for appropriate venue in favor of either a plaintiff or defendant, i.e., consumer or supplier, and in the absence of any such expression, there is no reason to assume that the legislature intended any standard for appropriate venue other than that provided in the venue statute itself.
We REVERSE and REMAND to the trial court for consideration of appellants’ motion for transfer of venue in light of the foregoing.
WENTWORTH and WIGGINTON, JJ., concur.
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Precision Software, Inc. v. Gauthier, 605 So. 2d 592 (Fla. 2d DCA 1992)…e rules as they apply to debtor-creditor relationships are inapplicable here because the instant cause of action arises in an employment context. See James A. Knowles, Inc. v. Imperial Lumber Co., 238 So. 2d 487 (Fla. 2d DCA 1970); Clarke v. Cartee, 549 So. 2d 722 (Fla. 1st DCA 1989); Earl W. Shomber & Co. v. Florida Casino Associates, Inc., 469 So. 2d 936 (Fla. 3d DCA 1985). [*594] Knowles, Clarke, and Shomber all hold that the debtor-creditor venue rules apply only when a debtor-creditor relationship exists…
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PDM Bridge Corp. v. JC Indus. Mfg., 851 So. 2d 289 (Fla. 3d DCA 2003)…to enforce payments on debts do not apply in the absence of a debtor-creditor relationship flowing from an express contractual promise to pay a certain sum of money owed. See Croker v. Powell, 115 Fla. 733, 156 So. 146 (Fla.1934); Clarke v. Cartee, 549 So. 2d 722, 724 (Fla. 1st DCA 1989); Earl W. Shomber & Co. v. Florida Casino Associ [*292] ates, Inc., 469 So. 2d 936, 937 (Fla. 3d DCA 1985); Brunswick Goldenrod Corp. v. Downsbrough, 156 So. 2d 670 (Fla. 3d DCA 1963). These elements are not present in this c…
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REA v. Compactor-Baler Serv., Inc., 627 So. 2d 488 (Fla. 2d DCA 1993)…ist between the parties. Thus the venue rules pertaining to suits to enforce payment on a debt are inapplicable. See Farsouth Jet Services, Inc. v. Machata, 568 So. 2d 84 (Fla. 4th DCA 1990), rev. denied, 581 So. 2d 165 (Fla.1991); Clarke v. Cartee, 549 So. 2d 722 (Fla. 1st DCA 1989). The order denying the motion to dismiss or in the alternative to transfer is hereby reversed and vacated. On remand this cause shall be transferred to Polk County. PATTERSON and ALTENBERND, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Inverness Coca-Cola Bottling Co. v. Lottie McDANIEL, 78 So. 2d 100 (Fla. 1955)
- James A. Knowles, Inc. v. Imperial Lumber Co., Inc., 238 So. 2d 487 (Fla. 2d DCA 1970)
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- State v. McCORMICK, 358 So. 2d 250 (Fla. 4th DCA 1978)
- Earl W. Shomber & Co., Inc. v. Fla. Casino Assocs., Inc., 469 So. 2d 936 (Fla. 3d DCA 1985)
- Am. Int'l Food Corp. v. Lesko, 358 So. 2d 250 (Fla. 4th DCA 1978)
- Hart v. Handling Sys. Eng'g, Inc., 502 So. 2d 1319 (Fla. 1st DCA 1987)