J. L. FOY, AS TRUSTEE OF A. F. FOSTER BRIDGE CORP., A FLORIDA CORPORATION, IN PROCEEDINGS IN REORGANIZATION UNDER CHAPTER 10 OF THE BANKRUPTCY ACT, AND FOR THE USE AND BENEFIT OF BRANSFIELD & WHITE, INC., A FLORIDA CORPORATION, APPELLANT,
v.
STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE
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An interlocutory appeal from a motion to dismiss based on improper venue in a contract dispute between a bridge corporation trustee and the State Road Department. The court affirmed that proper venue was in Leon County but reversed the dismissal, holding that the trial court should have transferred rather than dismissed the case.
The court affirmed that proper venue for actions against the State Road Department is in Leon County, but reversed the dismissal and held that the trial court should have transferred the case to Leon County rather than dismissing it. The court remanded with directions to transfer the case to the Circuit Court for Leon County.
“This interlocutory order at common law is appealable under Rule 4.2, Florida Appellate Rules, 31 F.S.A., as an order 'relating to venue.'”
Establishes that an interlocutory order granting a motion to dismiss on venue grounds is appealable.
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Join FLexlaw to unlock all legal intelligenceJ. L. Foy, as trustee of A. F. Foster Bridge Corporation, sued the State Road Department for money allegedly owed under a construction contract perfor…
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This is an interlocutory appeal from an order granting a motion to dismiss a cause of action at law on the basis that the venue was improper. The appellant is J. L. Foy, as Trustee of A. F. Foster Bridge Corporation. The appellant was plaintiff in the trial court where he brought a suit on behalf of the bridge corporation alleging that the State Road Department of the State of Florida owed the corporation money claimed to be due upon a contract between the bridge corporation and the State Road Department for work performed in Dade County. The complaint also claimed extra compensation for increased construction costs to the plaintiff allegedly resulting from engineering errors and unsuitable material furnished by the defendant Road Department.
The order appealed is interlocutory because it does not dispose of the cause but grants defendant’s motion on the ground of improper venue. State of Ohio ex rel. Squire v. Comstock, 146 Fla. 628, 1 So.2d 564. This interlocutory order at common law is appealable under Rule 4.2, Florida Appellate Rules, 31 F.S.A., as an order “relating to venue.”
The principal contention of the appellant is that because his action is ex con-tractu the court erred in granting the 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 result reached in Reed Construction Corporation v. State Road Department, supra. 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 conceive it our duty to do) it *690is necessary for us to hold that the court should transfer rather than dismiss the cause. See Polar Ice Cream & Creamery Co. v. Andrews, Fla.App.1962, 146 So.2d 609; § 53.17, Fla.Stat., F.S.A. We are aware that it has been held that the question of improper venue is correctly raised by a motion to dismiss. Inverness Coca-Cola Bottling Co. v. McDaniel, Fla.1955, 78 So.2d 100. But we cannot escape the conclusion that a transfer is the most expeditious and just way to handle the matter. This conclusion seems to be reinforced in the present instance by the fact that the cause is still pending in the trial court. We, therefore, affirm that portion of the order finding the venue of the cause to be in Leon County and remand the cause to the trial court with directions to transfer it to the Circuit Court for Leon County, Florida.
Affirmed in part, reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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James A. Knowles, Inc. v. Imperial Lumber Co., Inc., 238 So. 2d 487 (Fla. 2d DCA 1970)…. 4th 1966), 191 So. 2d 480. . Cf. B & F of Clearwater, Inc. v. Wesley Construction Co., Fla.App., 237 So. 2d 790, Opinion filed July 17, 1970; and Mendez v. George Hunt, Inc., n. 3, supra. . See, Foy v. State Road Department (Fla. App. 3rd 1964), 166 So. 2d 688, cert. denied, 173 So. 2d 147; also, cf. Mendez v. George Hunt, Inc., n. 3, supra.…
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Gross v. Franklin, 387 So. 2d 1046 (Fla. 3d DCA 1980)…that the question of improper venue is correctly raised by a motion to dismiss, [citations omitted]. But we cannot escape the conclusion that a transfer is the most expeditious and just way to handle the matter . . . ” Foy v. State Road Department, 166 So. 2d 688, 689-90 (Fla,3d DCA 1964). Thus, Rule 1.060(b) merely vests authority in the court to transfer when a timely Rule 1.140 motion challenging improper venue is [*1049] made. Since transfer, not dismissal, is the favored remedy for improper venue, Jame…
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Merrill Lynch v. Nat'l Bank OF Melbourne & Tr. Co., 238 So. 2d 665 (Fla. 4th DCA 1970)…an affirmative finding as to the proper venue and, unless there is a compelling reason to the contrary, transfer the cause to that venue in accordance with Rule 1.060(b), F.R.C.P., rather than dismiss it. Foy v. State Road Department, Fla.App.1964, 166 So. 2d 688. In the present case the defendant’s affidavit in support of the motion to dismiss, when considered in conjunction with the allegations in the complaint, made a prima facie showing that the proper venue under F.S. Section 47.051, F.S.A., was Orange…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Inverness Coca-Cola Bottling Co. v. Lottie McDANIEL, 78 So. 2d 100 (Fla. 1955)
- Polar ICE Cream & Creamery Co., Inc. v. Andrews, 146 So. 2d 609 (Fla. 1st DCA 1962)
- Reed Constr. Corp. v. State Rd. Dep't, 165 So. 2d 816 (Fla. 3d DCA 1964)
- State of Ohio ex rel. Samuel H. Squire v. Nannie L. Comstock and her Husband, 146 Fla. 628 (Fla. 1941)