NICOLE MARIE NICHOLAS, LINDA M. NICHOLAS AND EMORY NICHOLAS, APPELLANTS,
v.
JOSEPH I. ROSS, APPELLEE
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The court reversed an order denying a motion to transfer venue, holding that a complaint alleging wire fraud and related claims against residents of Hillsborough County failed to establish proper venue in Palm Beach County. The court found that both the defendants' residence and the place where the cause of action accrued were in Hillsborough County, requiring transfer.
The complaint failed to allege a sufficient basis for venue in Palm Beach County. Since both the defendants' residence and the place where the cause of action accrued (when appellant obtained possession of funds by deposit to her Hillsborough County account) were located in Hillsborough County, venue was improper in Palm Beach County and the case should be transferred.
[1] A plaintiff must allege a sufficient basis for the selected venue in the complaint.
[2] Venue is proper in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.
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Join FLexlaw to unlock all legal intelligence“the plaintiff must allege in the complaint a sufficient basis for the selected venue”
Establishes the foundational rule that venue selection requires factual allegations supporting the chosen county
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Join FLexlaw to unlock all legal intelligenceAppellee Ross, as assignee of claims from Beverly Limited, sued appellants for damages from $210,000 in unauthorized wire transfers from Cayman Island…
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WARNER, J.
This is an appeal of an order denying a motion to dismiss or transfer venue to Hills-borough County, Florida. Because the complaint fails to show a proper ground for venue in Palm Beach County, we reverse.
As assignee of claims of Beverly Limited, a foreign corporation, appellee Joseph Ross sued the appellants for damages resulting from wire transfers totaling $210,000 from Beverly Limited’s accounts in Cayman Island banks to the individual account of appellant Nicole Nicholas in Tampa, Florida. The complaint states causes of action for monies due, civil theft, conversion, conspiracy, unjust enrichment and injunction. Attached to the complaint as exhibit A is the assignment of the cause of action from Beverly Limited to the appellee. That assignment states that it is transferring to appellee “[f]ull rights to collect and recover any and all sums due Beverly Limited of all wires, see attached exhibits A-K [not attached to the complaint] transferred and or requested to be transferred on [listing of dates and amounts transferred] to the individual account of Nicole Nicholas, Suncoast Federal Credit Union, 6801 East Hillsborough, Tampa-” (emphasis supplied).
The appellants moved to dismiss the cause of action for improper venue, alleging that they were residents of Hillsborough County. The trial court held a hearing on the motion, at which time the appellee admitted that he did not know where the cause of action accrued, but asserted that it could have accrued in Palm Beach County. Appellee urged that venue was proper here as appellants had failed to prove otherwise. The trial court denied the motion, resulting in this appeal.
The venue statute provides that an action may be brought in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. See § 47.011, Fla. Stat. (1997). The plaintiff has the option of venue selection so long as that selection is one of the statutory alternatives. See Oliver v. Severance, 542 So. 2d 408, 409 (Fla. 1st DCA 1989). But the plaintiff must allege in the complaint a sufficient basis for the selected venue. See Goedmakers v. Goedmakers, 520 So. 2d 575, 578 (Fla.1988); Perry Bldg. Sys., Inc. v. Hayes & Bates, Inc., 361 So. 2d 443, 444 (Fla. 1st DCA 1978).
,The complaint fails to allege a sufficient basis for the selection of venue in Palm Beach County, and, in fact, makes no allegations to show that the cause of action accrued here. Instead, the allegations support venue in Hillsborough, as the residence of the defendants is listed as Hillsborough County and the exhibit attached to the complaint indicates that the wire transfers were sent to appellant’s account in Hillsborough County. Since a complaint incorporates the exhibits attached, that exhibit is considered part of the pleadings. See Fla.R.Civ.P. 1.130(b); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So .2d 736, 736 (Fla. 3d DCA 1971). Thus, the cause of action accrued when appellant obtained possession of the funds by deposit to her account, which took place in Hillsborough County. As both the residence of the defendant and the place of accrual of the cause of action are in Hillsborough County, according to the allegations of the complaint, the court erred in denying the motion to transfer venue.
Reversed and remanded with directions to transfer the cause to Hillsborough County.
KLEIN and TAYLOR, JJ., concur.
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Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d 628 (Fla. 2008)…property.” “Control” is defined as “to exercise power or influence over.” Id. at 353. [*634] In the case of funds in a bank account, the payee obtains possession and control once the funds are physically present in its account. See Nicholas v. Ross, 721 So. 2d 1241, 1243 (Fla. 4th DCA 1998) (appellant obtained possession of funds from wire transfer once the funds were deposited into her account). As for the payor, if a check has not been written, the duty to report and retain is easily fulfilled because the fu…
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Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005)…” Fla. R. Civ. P. 1.130(b). Flori [*684] da courts have consistently held that exhibits attached to complaints are considered part of the pleadings. See, e.g., Geico Gen. Ins. Co., Inc. v. Grad, 849 So. 2d 1196 (Fla. 4th DCA 2003); Nicholas v. Ross, 721 So. 2d 1241 (Fla. 4th DCA 1998)(noting that a complaint incorporates the exhibits attached and such exhibits are considered part of the pleadings); Fidelity & Cas. Co. of New York v. L.F.E. Corp., 382 So. 2d 363 (Fla. 2d DCA 1980); Arvanetes v. Gilbert, 143 So.…
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Goodall v. Whispering Woods Ctr., L.L.C., 990 So. 2d 695 (Fla. 4th DCA 2008)…holding, Hillcrest relied upon the well settled law in Florida that any docu [*700] ment attached to a complaint as an exhibit is considered a part of the pleading. Geico Gen. Ins. Co. v. Graci, 849 So. 2d 1196 (Fla. 4th DCA 2003); Nicholas v. Ross, 721 So. 2d 1241, 1243 (Fla. 4th DCA 1998); Fla. R. Civ. P. 1.130(b). When there are conflicts between the allegations of a complaint and the documents attached as exhibits to the complaint, the plain language of the documents control. Geico Gen. Ins. Co., 849 So. 2…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harry Pepper & Assocs., Inc. v. Harley O. Al Lasseter, Sr., 247 So. 2d 736 (Fla. 3d DCA 1971)
- W. D. Little, Jr., M.D. v. Smeltzer, 361 So. 2d 443 (Fla. 2d DCA 1978)
- Myers v. State, 520 So. 2d 575 (Fla. 1988)
- Oliver v. Severance, 542 So. 2d 408 (Fla. 1st DCA 1989)