L.E. WHITTINGTON, ETC., APPELLANT,
v.
JAMES SCOTT LANEY, APPELLEE
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The court held that the defendant failed to meet the burden of showing that the plaintiff's chosen venue was improper.
[1] A defendant moving to dismiss for improper venue bears the burden of proving that the plaintiff's chosen venue is incorrect.
[2] A cause of action for breach of warranty accrues at the location where the warranted goods are delivered.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued defendant for breach of warranty regarding a boat engine. The defendant, a resident of Palm Beach County, moved to dismiss for improper…
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PETERSON, Judge.
L.E. Whittington appeals the denial of his motion to dismiss for improper venue. We affirm.
James Scott Laney filed a complaint in Volusia County against Whittington. The complaint alleged that he purchased from Whittington a boat engine that was warranted to be free of defects for a reasonable period of time, that the engine failed and was repaired, that it failed a second time, and that finally Whittington provided a second replacement engine with a 90-day express warranty. The second engine allegedly also failed, and in his complaint Laney alleged breach of the 90-day express warranty, among other breaches.
Whittington countered with the motion to dismiss which alleged lack of venue and other defenses. The motion was supported by an affidavit wherein Whittington stated he is a resident of and operates his business in Palm Beach County and that he does not maintain a place of business in Volusia County. He also stated without elaboration that “all of the transactions related to purchase of the engine as alleged took place in Palm Beach County.” Laney responded with an affidavit that specifically alleged that the second engine was brought to Volusia County by Whittington personally. It also alleged without elaboration that “all incidents giving rise to this action occurred in Volusia County.” The trial judge was faced with contradictory affidavits that generally alleged all of the transactions or incidents occurred in Palm Beach County per Whit-tington and in Volusia County per Laney. The burden is on the defendant to show that the venue selected by the plaintiff is improper, Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So. 2d 100 (Fla.1955), and Whittington failed to meet that burden. Furthermore, it was unrefuted that the defendant personally delivered to Volusia County the second engine that was warranted for 90 days. A cause of action for breach of warranty accrues where the goods are delivered.
AFFIRMED.
COBB and GOSHORN, JJ., concur.
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Citator
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Nasir M. Ashemimry v. Sheik Ahmed Abdul Rahman Saleh BA Nafa, 778 So. 2d 495 (Fla. 5th DCA 2001)…ng 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 selected by plaintiff was improper where judge was faced with contradictory affidavits regarding parties’ transactions). And, even assuming that the hotel is actually located…
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Forms & Surfaces, Inc. v. Welbro Constructors, Inc., 627 So. 2d 594 (Fla. 5th DCA 1993)…ged in this case was that Forms and Surfaces supplied Welbro with defective or nonconforming stone. An action for such a breach accrues, for venue purposes, where the allegedly defective or nonconforming goods were deliv-©red.3 Whittington v. Laney, 566 So. 2d 599 (Fla. 5th DCA 1990); Stanfield v. DeStefano, 300 So. 2d 712 (Fla. 2d DCA 1974); Richard Bertram & Co. v. Barrett, 155 So. 2d 409 (Fla. 1st DCA 1963). Here the breach occurred, if at all, upon delivery of the goods to Welbro, not, as claimed by Welbr…
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Sundor Brands, Inc. v. Groves Co., Inc., 604 So. 2d 901 (Fla. 5th DCA 1992)…enue in actions for breach of warranty lies where the items warranted were delivered. See Stanfield v. Destefano, 300 So. 2d 712 (Fla. 2d DCA 1974); Richard Bertram & Co. v. Barrett, 155 So. 2d 409 (Fla. 1st DCA 1963). See also Whittington v. Laney, 566 So. 2d 599 (Fla. 5th DCA 1990). Defendants similarly contend that a cause of action for breach of a guarantee accrues where the guarantee was made. Lamar v. Martin, 576 So. 2d 920 (Fla. 2d DCA 1991). According to defendants, because the closing took place in D…
Authorities Cited
- Inverness Coca-Cola Bottling Co. v. Lottie McDANIEL, 78 So. 2d 100 (Fla. 1955)