UTILICORE CORPORATION, A DELAWARE CORPORATION, APPELLANT,
v.
DAVID BEDNARSH, THOMAS M. BEARD, AMERICAN PHONE CORPORATION, APPELLEES
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Utilicore Corporation appealed the trial court's transfer of its breach of contract and fiduciary duty action to Sarasota County. The appellate court reversed, holding that Utilicore sufficiently alleged venue was proper in Miami-Dade County based on evidence that it had 4,100 customers there and that the causes of action accrued there.
The court reversed, holding that Utilicore sufficiently alleged venue was proper in Miami-Dade County. The trial court erred in granting the motion to abate for improper venue because Utilicore's proffer of evidence establishing that causes of action accrued in Miami-Dade County was accepted as true and established proper venue under Florida Statute § 47.041.
[1] Venue is proper in a county where at least one cause of action accrued.
[2] A trial court errs in granting a motion to abate for improper venue when the plaintiff has sufficiently alleged and proffered evidence that a cause of action accrued in t…
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Join FLexlaw to unlock all legal intelligence“Utilicore sufficiently alleged that at least one of its causes of action accrued in Miami-Dade County. Its proffer of evidence was accepted as true by the trial court and established the same point. That being so, venue was proper in Miami-Dade County and the court erred in granting the motion.”
Establishes the holding that proper venue existed in Miami-Dade County based on Utilicore's sufficient allegations and evidence
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Join FLexlaw to unlock all legal intelligenceUtilicore Corporation provides telephone services to apartment complex residents. David Bednarsh and Thomas Beard were Utilicore's former president an…
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COPE, J.
Plaintiff-appellant Utilicore Corporation appeals the transfer of its action for breach of contract and breach of fiduciary duty to Sarasota County. We reverse.
Utilicore is in the business of providing telephone and related services to retail customers who reside in large apartment complexes. Defendants-appellees David Bed-narsh and Thomas Beard are the former president and executive vice president of Uti-licore.In November 1998 Utilicore filed an action against Bednarsh and Beard alleging that, among other things, the defendants had breached their fiduciary duties, usurped corporate opportunities and tortiously interfered with corporate opportunities. Utilicore alleged that its causes of action accrued in Miami-Dade County, in part based on the fact that it had 4,100 customers in Miami-Dade County. Utilicore alleged that defendants had taken actions to acquire those customers for their own later-formed corporation, appellee American Phone Corporation. In response, defendants filed a Motion to Abate for Improper Venue1 in which they argued that venue was only proper in Sarasota County. After a hearing at which the trial court accepted Utilicore’s proffer of evidence of the causes of action accruing in Miami-Dade County and at which defendants provided no evidence, the trial court granted the defendants’ motion.
Utilicore sufficiently alleged that at least one of its causes of action accrued in Miami-Dade County. Its proffer of evidence was accepted as true by the trial court and established the same point. That being so, venue was proper in Miami-Dade County and the court erred in granting the motion. See § 47.041, Fla. Stat. (1997); Sunshine Yacht Sales Inc. v. Bob Anslow Yacht Sales, Inc., 669 So. 2d 342, 343 (Fla. 3d DCA 1996). The trial court’s oral pronouncement suggests that the court believed venue should be transferred because Miami-Dade County was an inconvenient forum. The defendants had not filed a motion to transfer under section 47.122, Florida Statutes (1997),2 nor had the court given advance notice that it desired to entertain such a claim on its own motion. Our reversal is without prejudice to the trial court to consider the issue of transfer for convenience on proper notice.
Reversed and remanded for further proceedings consistent herewith.
. Under the rules, this would more properly be described as a motion to dismiss for improper venue. See Fla. R. Civ. P. 1.140(b)(3); Bruce J. Berman, Florida Civil Procedure ¶ 140.4[c], at 111 (1998).
. Transfer for convenience within Florida is governed by section 47.122. When the more convenient forum is outside of Florida, the procedure is governed by Florida Rule of Civil Procedure 1.061. See Bruce J. Berman, supra note 1.
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McDANIEL Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So. 3d 504 (Fla. 4th DCA 2010)…cause the defendants had not filed a motion to transfer for forum non conveniens under section 47.122, the trial court erred in entertaining such a claim on its own motion without giving the plaintiff advance notice. See Utilicore Corp. v. Bednarsh, 730 So. 2d 853 (Fla. 3d DCA 1999). In Utilicore, the Third District explained: The trial court’s oral pronouncement suggests that the court believed venue should be transferred because Miami-Dade County was an inconvenient forum. The defendants had not filed a mo…
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Hall v. Animals.com, L.L.C., 171 So. 3d 216 (Fla. 5th DCA 2015)…Burns, 672 So. 2d 834, 835 (Fla. 3d DCA 1996). Because Animals did not file a motion to transfer based on forum non conveniens, the trial court erred in entertaining this argument without giving Hall advance notice. See Utilicore Corp. v. Bednarsh, 730 So. 2d 853, 854 (Fla. 3d DCA 1999) (holding that trial court could not transfer venue based on forum non conveniens where defendants had not filed motion to transfer under section 47.122, nor had court given advance notice that it desired to entertain claim on…
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Woodson Elec. Solutions v. Port Royal Prop., 271 So. 3d 111 (Fla. 3d DCA 2019)…sfer venue. The Defendants’ appeal followed. The Defendants contend that the trial court erred by denying the motion to dismiss. As at least one of the causes of action accrued in Miami-Dade County, we disagree. See Utilicore Corp. v. Bednarsh, 730 So. 2d 853, 854 (Fla. 3d DCA 1999) (noting that venue was proper because at least one of the alleged causes of action accrued in the county where the action was filed). Section 47.011, Florida Statutes (2018), provides: “Actions shall be brought only in th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sunshine Yacht Sales, Inc. v. BOB Anslow Yacht Sales, Inc., 669 So. 2d 342 (Fla. 3d DCA 1996)