MIKE THOMAS, APPELLANT,
v.
DAVID KILCOYNE REAL ESTATE GROUP, INC., D/B/A KILCOYNE DEVELOPMENT COMPANY, APPELLEE
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Mike Thomas appealed a trial court's denial of his motion to change venue from Hillsborough County to Dade County in a breach of contract action involving real estate. The appellate court reversed, holding that because the alleged breach involved failure to pay money due under the contract and payment was to occur in Dade County, venue was properly laid in Dade County.
Venue was properly laid in Dade County because the alleged breach was of the covenant to pay money due, and the payment was to occur in Dade County. When a plaintiff alleges breach of a covenant to pay money under a contract, the cause of action accrues where performance of payment was to occur.
[1] Venue in an action for failure to pay money is properly laid where the payment is due.
[2] A cause of action for venue purposes accrues in the county where the contract is breached.
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“A cause of action for venue purposes accrues in the county where the contract is breached. If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur.”
Establishes the controlling legal standard for determining venue in breach of contract actions involving payment obligations.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThomas and Kilcoyne Real Estate Group entered into two agreements for Thomas to purchase vacant land in Hillsborough County. Each agreement required T…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAVIS, Judge.
Mike Thomas challenges the trial court’s refusal to change venue from Hillsborough County to Dade County. The parties characterize this venue question as one involving breach and repudiation of a partially completed contract involving the transfer of title to real property. However, our review of the abbreviated record reveals it to be a simple question of failure to pay money pursuant to an agreement for sale and purchase of real estate. Because venue in an action for failure to pay money is properly laid where the payment is due, which in this case is Dade County, we reverse.
The parties entered into two agreements by which Thomas agreed to purchase vacant land in Hillsborough County from David Kilcoyne Real Estate Group, Inc. Each agreement provided that Thomas would pay a $78,400 earnest money deposit within five days of execution of the agreement.1 The deposits were to be paid to Thomas’s wife, attorney Lola Thomas, as the escrow agent, in Miami, Dade County.
Kilcoyne alleged in its complaint that Thomas breached both contracts by failing to make the required earnest money deposits in a timely fashion. Significantly, however, the prayer for relief asked only for payment of the earnest money deposits; it did not request either the full contract price or specific performance of the contract.
The general rule for the proper placement of venue in a breach of contract action has been stated as follows:
A cause of action for venue purposes accrues in the county where the contract is breached. If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed.
Windsor v. Migliaccio, 399 So. 2d 65, 66 (Fla. 5th DCA 1981) (citations omitted).
The alleged breach here was a breach of the covenant to pay money due, not a breach of contract involving the transfer of title to real property. Because the payment was to occur in Dade County, we conclude that venue was properly laid in Dade County, and the trial court erred in refusing to change venue from Hillsborough County to Dade County. See Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983).
Accordingly, we reverse.
PARKER, A.C.J., and CASANUEVA, J., Concur. . Because this action is before us at the preliminary venue stage, we need not determine whether Thomas's failure to pay the earnest money prevented the formation of a binding real estate contract that would support an action for its breach. See Peterson Homes, Inc. v. Johnson, 691 So. 2d 563 (Fla. 5th DCA 1997).
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Dep't OF Transp. v. Cone & Graham, Inc., 884 So. 2d 224 (Fla. 2d DCA 2004)…where the cause of action accrued, pursuant to section 337.19(3), Florida Statutes (1997). The parties’ disagreement centers on whether the “place of payment” venue rule applies to the facts here. In Thomas v. David Kilcoyne Real Estate Group, Inc., 791 So. 2d 550, 551-52 (Fla. 2d DCA 2001) (quoting Windsor v. Migliaccio, 399 So. 2d 65, 66 (Fla. 5th DCA 1981) (citations omitted)), this court explained: A cause of action for venue purposes accrues in the county where the contract is breached. If a plaintiff a…1 / 2
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Suncoast Home Improvements, Inc. v. Robichaud, 106 So. 3d 969 (Fla. 2d DCA 2013)…accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed. Id. (quoting Thomas v. David Kilcoyne Real Estate Group, Inc., 791 So. 2d 550, 551-52 (Fla. 2d DCA 2001)). When a contract involves the payment of money and the contract fails to specify a place of payment, payment is due where the creditor resides. Koslow v. Sanders, 4 So.Sd 37, 38 (Fla. 2d DCA 2009). However, the place of…
Authorities Cited
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983)
- Peterson Homes, Inc. v. Johnson, 691 So. 2d 563 (Fla. 5th DCA 1997)