SAGAZ INDUSTRIES, INC., APPELLANT,
v.
RICHARD G. MARTIN, APPELLEE

Fla. 5th DCA | 1998-02-13
No. 97-926
THOMPSON, J., concurs., DAUKSCH, J., concurs in conclusion only.
706 So. 2d 374 Florida District Court of Appeal, Fifth District (1998) Caution
Cited by 12 cases

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Holding

The dissenting justices argued that the respondent's fifth federal habeas petition should have been dismissed as a 'second or successive' application because it presented a claim previously raised in an earlier petition.


Headnotes

[1] Venue for actions against domestic corporations is proper in the county where the corporation has an office for transaction of business, where the action accrued, or wher…

[2] For a breach of contract claim based on failure to pay money due, the cause of action accrues where payment was to be made or at the creditor's residence.

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Facts & Procedural History

Respondent filed multiple federal habeas petitions. His fourth petition, filed in March 1993, included a claim that he was not competent to be execute…

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Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

Sagaz Industries, Inc., a Florida corporation, appeals from an order of a Lake County trial judge, which denied its motion to dismiss the lawsuit because of improper venue.1 Sagaz has no offices in Lake County, and its principal place of business is in Dade County. Appellee, Martin, is a resident of Láke County, and was employed as president of Sagaz pursuant to a contract entered into by the parties on October 1, 1996. The essence of the lawsuit filed against Sagaz by Martin is Sagaz’s failure to pay him $204,162.00 in severance pay allegedly due him under the employment contract, if his termination was without cause. We affirm.

Section 47.051 provides:

Actions against corporations. — 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 action accrued, or where the property in litigation is located, (emphasis supplied).

Since no property is involved in this case and Sagaz has no office in Lake County, venue is proper in Lake County only if the cause of action accrued there.

Sagaz argues that the suit is for breach of contract and that the cause of action accrues where the breach occurred. Suzanne Walker & Associates, Inc. v. Qualtec Quality Services, Inc., 660 So. 2d 384, 385 (Fla. 5th DCA 1995); Forms and Surfaces, Inc. v. Welbro Constructors, Inc., 627 So. 2d 594, 595 (Fla. 5th DCA 1993); Pearson v. Wallace Aviation, Inc., 400 So. 2d 50 (Fla. 5th DCA 1981). A breach is said to have occurred where the failure of performance occurred. Vital Industries, Inc. v. Burch, 423 So. 2d 1023 (Fla. 4th DCA 1982); Speedling, Inc. v. Krig, 378 So. 2d 57 (Fla. 2d DCA 1979). Further, where the breach lies in the act of renouncing and refusing to further recognize a partially completed contract, the cause of action accrues and venue is proper where the contract was to be performed. Suzanne Walker at 385.

Sagaz cites Precision Software, Inc. v. Gauthier, 605 So. 2d 592 (Fla. 2d DCA 1992), as controlling. In Precision, a terminated vice president sued for severance pay. The corporation was located and did business in Pinellas County, but the employee brought suit in Hillsborough County for breach of the employment contract. The court ruled that the venue rules, as-they apply to debtor/ered-itor relationships are inapplicable to breach of employment agreements. Only where the promise sued on is the covenant to pay money creating a debtor/creditor relationship would venue be proper in the employee’s county of residence, if that county is different from the corporate offices and the place the contract was to be performed. In Precision, the severance provision was a condition of the employee’s employment with the employer, and thus the court reasoned that the cause of action was a breach of contract action, not a suit’ on a debt. Further, Precision had always issued the employee his salary in Pinellas-County, where the employee also worked. The court concluded:

Since the severance provision itself indicates that Gauthier is simply to continue receiving his salary for a period of one year following termination, we can conclude that if Precision has indeed failed to perform in this instance, it has done so by refusing to issue further payment to Gaú-their from its place of business in Pinellas County.

605 So. 2d at 594.

In this case, the record establishes that Martin performed his employment duties under the contract in Dade County. He was terminated on November 4, 1996, in Dade County, and Sagaz paid him accrued base pay and benefits by direct deposit, to his bank in Lake County. Martin returned to Lake County after his dismissal and his attorney wrote Sagaz, demanding Martin’s severance pay under the contract. If Martin was terminated without cause, he was entitled to severance pay under the contract. Sagaz responded by letter dated November 27th, claiming Martin had been terminated for cause — embezzlement, misappropriation and unsatisfactory job performance — and thus was due no additional payment from Sagaz.

This is a close question, but we agree with the trial judge that in this case, the essence of Martin’s claim is Sagaz’ failure to pay for his services, and not the performance of services. A breach in the former situation occurs where the payment for services should have been made. Although the contract itself in this case does not provide where payment was to have been made, in fact payments under the contract were made to Martin in Lake County. Further, the venue for a cause of action for failure to pay money due under a contract is deemed payable at the creditor’s residence, in this case Lake County. See Valiant Air Command, Inc. v. Frank K. Collins & Associates, 500 So. 2d 577 (Fla. 5th DCA 1986); Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So. 2d 1029 (Fla. 5th DCA 1985).

AFFIRMED.

THOMPSON, J., concurs.

DAUKSCH, J., concurs in conclusion only.

. A denial of a motion to dismiss relating to venue is a non final appealable order. Haws & Garrett General Contractors, Inc. of Fort Worth v. Panhandle Custom Decorators & Supply, Inc., 500 So. 2d 204 (Fla. 1st DCA 1986).


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Citator

Cited By

  • …ation. Rule 9.130(a)(3)(A) of the Florida Rules of Appellate Procedure includes orders concerning venue within the limited class of nonfínal orders that are subject to review by appeal before the final judgment. See Sagaz Industries, Inc. v. Martin, 706 So. 2d 374, 375, fn. 1 (Fla. 5th DCA 1998) (noting that an order denying a motion to dismiss for improper venue is appealable); accord Lesco, Inc. v. Celotex Corp., 464 So. 2d 1336 (Fla. 2d DCA 1985). This rule enables a party to seek review of an adverse deci…
  • …in the county where the breach occurred. Qualtec, 660 So. 2d at 385; Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So. 2d 1029, 1030 (Fla. 5th DCA 1985). A breach occurs where the failure of performance occurred. Sagaz Indus., Inc. v. Martin, 706 So. 2d 374, 375 (Fla. 5th DCA 1998); Vital Indus., Inc. v. Burch, 423 So. 2d 1023, 1023-24 (Fla. 4th DCA 1982); Speedling, Inc. v. Krig, 378 So. 2d 57, 58 (Fla. 2d DCA 1979). Where the alleged breach lies in the defendant’s act of renouncing and refusing to fu…
  • I-Net Techs., Inc. v. Salazar, 82 So. 3d 1007 (Fla. 4th DCA 2011)
    …DAMOORGIAN and CIKLIN, JJ., concur. . Alternatively, appellee claims that the cause of action accrues where the payment for services under an employment contract was to be received, i.e., the employee’s residence. See Sagaz Indus., Inc. v. Martin, 706 So. 2d 374 (Fla. 5th DCA 1998). However, the place of payment venue rule would be inapplicable where the damages sought, like in the present case, are “unliquidated and subject to proof.” Dep’t of Transp. v. Cone & Graham, Inc., 884 So. 2d 224, 227 (Fla. 2d DC…

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