JOSEPH A. TULLI, APPELLANT,
v.
PALMA TULLI, APPELLEE
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Joseph Tulli appeals a trial court's denial of his motion to transfer venue from Sarasota County to Duval County in a civil case involving alleged check fraud. The appellate court reversed, holding that Tulli was entitled to the venue transfer because his uncontradicted affidavit established that all operative facts occurred in Duval County, not Sarasota County.
The court held that Joseph Tulli was entitled to the venue transfer. Once a defendant challenges venue with an affidavit controverting the plaintiff's venue selection, the burden shifts to the plaintiff to prove that the venue selection is proper. Because Palma Tulli filed no countervailing affidavit and did not contradict Tulli's sworn statement that all operative facts occurred in Duval County, the trial court erred in denying the motion to transfer.
[1] A defendant challenging venue with an affidavit controverting the plaintiff's venue selection shifts the burden to the plaintiff to prove the propriety of the chosen venu…
[2] A plaintiff must file a countervailing affidavit to contradict a defendant's sworn statement regarding the location of acts forming the basis of a cause of action when ve…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“once a defendant challenges venue with an affidavit controverting the plaintiffs venue selection, the burden is on the plaintiff to prove that the selection of venue is proper”
Establishes the burden-shifting rule that applies when a defendant affidavitively contests venue; plaintiff must then prove proper venue.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePalma Tulli filed an unsworn complaint in Sarasota County alleging that Joseph Tulli took possession of a check intended as a down payment on a real e…
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FULMER, Judge.
The defendant, Joseph Tulli, appeals from a nonfinal order denying his “Motion to Abate or Transfer for Improper Venue.” We reverse because Joseph Tulli was entitled to the venue transfer based on his uncontradicted affidavit.
In her unsworn complaint, filed in Sarasota County, the plaintiff, Palma Tulli, alleged that she was to receive a check “as a down payment on a real estate sale in Sarasota County,” and that Joseph Tulli “took possession” of the check and either forged her signature or otherwise caused it to be negotiated. Joseph Tulli filed an affidavit with his motion to transfer venue, asserting that he is a resident of Duval County and the only transaction at issue concerns his receipt by mail in Duval County of a check, sent at the direction of his mother, the plaintiff, by a real estate closing agent in Charlotte County. Joseph Tulli stated in the affidavit that he deposited the check in his account in Duval County-
Section 47.011, Florida Statutes (1997), provides that actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. While an unsworn complaint is sufficient to allege venue, once a defendant challenges venue with an affidavit controverting the plaintiffs venue selection, the burden is on the plaintiff to prove that the selection of venue is proper. See Tropicana Prods., Inc. v. Shirley, 501 So. 2d 1373, 1375 (Fla. 2d DCA 1987). .
The only plausible basis for Palma Tulli to maintain her suit in Sarasota County would be that the cause of action accrued there. See Holiday Truck & Car Sales, Inc. v. Coldewey, 434 So. 2d 344, 345 (Fla. 2d DCA 1983). Because Palma Tulli filed no countervailing affidavit to that of Joseph Tulli, she did not contradict his sworn statement that all acts upon which the cause of action was based occurred in Duval County. Accordingly, the trial court erred in denying the motion to transfer venue. See id.; see also Eth-Wha, Inc. v. Blankenship, 483 So. 2d 872, 873 (Fla. 2d DCA 1986). We, therefore, reverse and remand for the trial court to enter an order transferring the cause to Duval County.
Reversed and remanded.
THREADGILL, A.C.J., and DAVIS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Regions Fin. Corp. v. Mercenari, 78 So. 3d 1 (Fla. 3d DCA 2011)…so,” and thus, “their bare allegation in [the plaintiffs’] ... complaint is insufficient to sustain their initial selection of venue.” Id. I, therefore, conclude the trial court abused its discretion by denying the Bank’s motion. See Tulli v. Tulli, 780 So. 2d 213, 214 (Fla. 2d DCA 2001) (reversing denial of motion to transfer where appellants’ affidavit established a more convenient forum, the appellee did not file a countervailing affidavit, and the complaint was unsworn); Eggers v. Eggers, 776 So. 2d 1096,…
Authorities Cited
- Tropicana Prods., Inc. v. Hoke H. Shirley, 501 So. 2d 1373 (Fla. 2d DCA 1987)
- Long v. State, 483 So. 2d 872 (Fla. 1st DCA 1986)
- Holiday Truck & CAR Sales, Inc. v. Rolf Coldewey, 434 So. 2d 344 (Fla. 2d DCA 1983)