REED CONSTRUCTION CORPORATION, A FLORIDA CORPORATION, AND EDWIN G. ASCHE, APPELLANTS,
v.
STATE ROAD DEPARTMENT, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE; STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, APPELLANT, V. REED CONSTRUCTION CORPORATION, A FLORIDA CORPORATION, AND EDWIN G. ASCHE, APPELLEES
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The court held that a trial court finding improper venue should limit its order to transferring the cause, without ruling on the legal sufficiency of the complaint.
Reed Construction Corporation filed a complaint for damages against the State Road Department. The Department moved to dismiss for failure to state a …
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These two interlocutory appeals are from the same orders entered by the Circuit Court of Dade County, Florida, which denied a motion to dismiss made by the State Road Department to a complaint for damages filed on behalf of Reed Construction Corporation. The motion to dismiss, in addition to including the usual ground that the complaint failed to state a cause of action, also alleged that the venue of the cause was improper in that the State Road Department should be sued at its official place of residence, to-wit: Leon County,, Florida.
In one appeal, Reed Construction Corporation contends that the court erred in. granting a change of venue by transferring, the cause to Leon County. The State Road Department contends in the other appeal that the portion of the orders which denied its motion to dismiss but granted a motion-to transfer on a finding of improper venue was erroneous.
As to the'Reed' Construction contention, we find the same - to be- without *817merit. See Smith v. Williams, 160 Fla. 580, 35 So.2d 844; and Henderson v. Gay, Fla. 1950, 49 So.2d 325.
The State Road Department’s contention that the court could not transfer the cause upon a finding of improper venue and at the same time deny the motion to dismiss is, in our view, well taken. We think the trial judge was eminently correct in concluding that the cause had been filed in the wrong circuit, but upon such a finding, he should have limited his order to the transfer as provided by § 53.17, Fla.Stat., F.S.A., without ruling upon the legal sufficiency of the allegations of the complaint. See Phelps v. Higgins, Fla.App.1960, 120 So.2d 633.
Accordingly, we modify the orders appealed by striking therefrom that portion which denied the motion to dismiss and, as modified, the orders appealed are affirmed.
Modified and affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Gross v. Franklin, 387 So. 2d 1046 (Fla. 3d DCA 1980)…proper venue was in Leon County, the court should have transferred the cause to that court rather than granting the motion to dismiss. It will be recognized that this is the result reached in Reed Construction Corporation v. State Road Department, [165 So. 2d 816 (Fla.3d DCA 1964)]. In the instant case the court did not consider the question of transfer, and there is nothing in the record to show that it was requested to do so. Nevertheless, we feel that in construing the rule to produce a just result (as we…1 / 2
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Spalding v. VON Zamft, 180 So. 2d 208 (Fla. 3d DCA 1965)…have granted the motion to. transfer the cause and left the issue regarding the place of the deposition, under the terms of the stipulation, to be decided by the courts in Monroe County, Florida. Reed Const. Corp. v. State Road Dept., Fla.App.1964, 165 So. 2d 816; Greyhound Corporation v. Rosart, Fla.App. 1960, 124 So. 2d 708. The granting or refusal of an application' for a change of venue is a matter placed by the statute within the judicial discretion of the court, and while the exercise of such discretio…
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FOY v. State Rd. Dep't of the State of Fla., 166 So. 2d 688 (Fla. 3d DCA 1964)…he motion to dismiss on the ground that proper venue of the action is in Leon County, Florida. This contention has been determined adversely to the appellant in the recent case of Reed Construction Corporation v. State Road Department, Fla.App.1964, 165 So. 2d 816 [opinion filed June 30, 1964.] Appellant’s second point urges that if proper venue was in Leon County, the court should have transferred the cause to that court rather than granting the motion to dismiss. It will be recognized that this is the resu…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. Williams, 160 Fla. 580 (Fla. 1948)
- Spradley v. Fla. Dep't of Corr. (Fla. 3d DCA 2020)
- Henderson v. Gay, 49 So. 2d 325 (Fla. 1950)
- Phelps v. Higgins, 120 So. 2d 633 (Fla. 2d DCA 1960)