JOHN E. CARTER, A/K/A JACK CARTER, APPELLANT,
v.
DAVID L. FLEMING, APPELLEE

Fla. 1st DCA | 1990-09-27
No. 90-752
SHIVERS, C.J., and JOANOS, J., concur.
567 So. 2d 535 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 4 cases

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Holding

The court held that the trial court erred in finding venue proper in Escambia County for a cause of action based on a promissory note, as the note designated Duval County as the place of payment and no redesignation was alleged.


Headnotes

[1] A cause of action for failure to pay money due under a contract accrues in the county where payment was to be made.

[2] A general allegation in a complaint that payment was due in a specific county does not negate a clear contractual provision designating another county for payment, absent…

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Facts & Procedural History

Fleming sued Carter on a promissory note, alleging Carter was obligated to pay him as guarantor. The trial court found venue proper in Escambia County…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

John Carter appeals a non-final order denying his motion to abate this action for improper venue in Escambia County. We have jurisdiction to review this non-final order pursuant to Rule 9.130(a)(3)(A), Fla. R.App.P. (1990), and reverse.

David Fleming commenced this action by filing a three-count complaint against Carter in Escambia County. The complaint was twice amended, with the second amended complaint ultimately alleging: in count one, that Fleming is the holder and owner of a promissory note that he was forced to purchase from First Trust Savings Bank, and that Carter, as guarantor on the note, is obligated to pay the amount guaranteed; in count two, that Carter, as guarantor of the First Trust note, is obligated to Fleming for his payment of the obligation owed to First Trust; and in count three, that Carter breached his fiduciary duty as receiver in a foreclosure action and, as a result, Fleming suffered damages for which Carter is liable. On consideration of Carter’s motion to abate the action for improper venue, the trial court found that Escambia County is not the proper venue for counts one and three, as those causes of action accrued in Duval County.

However, the court found that venue would lie in Escambia County as to count two and denied the motion.

The parties agree that venue of this suit is proper in Escambia County under section 47.011, Florida Statutes (1989), only if the cause of action alleged in count two accrued there. The parties also agree that since the cause of action alleged in count two is based on an alleged failure to pay money due under a contract, such cause of action accrued in the county where the payment was to be made.1 Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983).

Carter argues that the cause of action accrued in Duval County when he allegedly failed to repay the loan at the place of payment specified in the note. Fleming disagrees, stating that he is now the holder and owner of the note, that he has designated Escambia County as the place of payment, and that the cause of action accrued in Escambia County when appellant failed to reimburse him in that county.

In determining this issue, we need look only to the complaint itself and the promissory note annexed thereto. Count two alleges that the debt Carter owes to Fleming due to Fleming’s repayment of the loan to First Trust was “due and payable in Es-cambia County, Florida.” The promissory note states that the debt was to be paid to First Trust in Jacksonville (Duval County), “or such other place as the holder of this note may from time to time designate.” The complaint does not allege that, prior to Carter’s breach for nonpayment, First Trust, Fleming, or any other holder in due course ever redesignated Escambia County as the place of payment in lieu of the designation of Duval County in the note. The general allegation in the complaint that payment was due and payable in Es-cambia County does not negate the clear provision in the contract that payment was to be made in Duval County in the absence of an allegation of specific fact that a holder in due course of the note redesignated the place of payment to Escambia County in accordance with the terms of the contract prior to Carter’s default. See Striton Properties v. Jacksonville Beach, 533 So. 2d 1174 (Fla. 1st DCA 1988); Health Application Systems, Inc. v. Hartford Life and Accident Insurance Company, 381 So. 2d 294 (Fla. 1st DCA 1989); H. Trawick, Trawick’s Florida Practice and Procedure § 6-15 (1985 ed.).

Because the promissory note designated Duval County as the place of payment and the complaint contains no allegation of fact that prior to Carter’s breach for nonpayment a holder in due course of the note designated another place of payment, the cause of action alleged in count two could only have accrued in Duval County.

Thus, the trial court abused its discretion in ruling that proper venue for count two lies in Escambia Coun ty. See Adams v. Knabb Turpentine Co., 435 So. 2d 944 (Fla. 1st DCA 1983) (abuse of discretion is the standard of review applicable to a determination of venue).

The appealed order is reversed and the cause remanded with directions to treat the motion to abate the action for improper venue as a motion to transfer, Franklin v. Sherwood Park, Ltd. Inc., 380 So. 2d 1323 (Fla. 3d DCA 1980); Ryder Leasing, Inc. v. Jorge, 168 So. 2d 548 (Fla. 3d DCA 1964), and transfer the action in accordance with Rule 1.060, Fla.R.Civ.P. (1990), to Duval County.

REVERSED AND REMANDED.

SHIVERS, C.J., and JOANOS, J., concur. . For the purpose of arguing this issue, appellant assumed the accrual of a cause of action.


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Citator

Cited By

  • McMURRAIN v. Fason, 573 So. 2d 915 (Fla. 1st DCA 1990)
    …t make provision for taking immediate possession and effectively shutting the business down. Since the conflicting language of the agreement incorporated in the complaint controls over conflicting allegations of the complaint, see Carter v. Fleming, 567 So. 2d 535 (Fla. 1st DCA 1990); Striton Properties v. Jacksonville Beach, 533 So. 2d 1174 (Fla. 1st DCA 1988), rev. denied, 544 So. 2d 201 (Fla.1989); Health Application Systems, Inc. v. Hartford Life and Accident Insurance Co., 381 So. 2d 294 (Fla. 1st DCA 19…
  • Gatton v. First Fed. Sav. Bank of Fla., 923 So. 2d 1260 (Fla. 1st DCA 2006)
    …ce or principal place of business), or in Columbia County (as the place where the action accrued because the promissory note provided for payment to be made at appellee’s Lake City offices). See §§ 47.011, .051, Fla. Stat. (2004); Carter v. Fleming, 567 So. 2d 535 (Fla. 1st DCA 1990). Because venue does not lie in Su-wannee County, the trial court erred in denying appellants’ motion for change of venue. Accordingly, we reverse and remand for further proceedings consistent herewith. REVERSED and REMANDED.…

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