NEIL MALONEY ET AL., APPELLANTS,
v.
DONALD J. FLEISHAKER ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellants Maloney and Property Mortgage Services challenged venue in a contract action brought by Fleishaker to recover earnest money. The trial court denied the venue motion, but the appellate court reversed, holding that defendants established a prima facie case that venue was improper in Hillsborough County.
The appellate court reversed, holding that the defendants' prima facie showing of improper venue (through affidavit and power of attorney) satisfied their burden, and absent any rebuttal by the plaintiff, the venue motion should have been granted. The failure of one codefendant (Financial Fire & Casualty Company) to assert its venue privilege cannot waive the venue rights of its codefendants.
[1] A defendant seeking to dismiss a complaint on the grounds of improper venue bears the initial burden of establishing a prima facie case that venue is improper.
[2] A defendant's failure to assert a venue privilege constitutes a waiver of that privilege.
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“the affidavit together with the power of attorney constituted a prima facie showing that Financial Fire & Casualty Company was operating in Broward County at all times relevant to this case and, absent any rebuttal by plaintiff, satisfies the burden imposed upon movants”
Establishes the burden of proof for venue challenges and when defendants meet their obligation to show improper venue
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFleishaker entered into a contract with Property Mortgage Services, Inc. to procure a loan for construction, depositing $11,250 as earnest money. The …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Venue Privilege cases and more on FLexlaw
Appellee Fleishaker filed a complaint in the Circuit Court of Hillsborough County against three named defendants: Maloney, as an individual;1 Property Mortgage Services, Inc.; and Financial Fire & Casualty Company (as surety on a bond for the other two defendants). Fleishaker alleged that he entered into a contract with Property Mortgage Services whereby the latter would procure for him a loan to be used to construct certain buildings, and Fleishaker deposited $11,250 with Property Mortgage Services as earnest money. The loan did not materialize and Fleishaker brought this action to recover his deposit of earnest money. The complaint did not allege the residence of plaintiff, nor of any of the defendants, except that it stated that Property Mortgage Services was a Florida corporation. Furthermore there was no allegation as to the locus of the formation of the agreement or the place where it was to be performed or the place where the breach occurred.
Defendants Maloney and Property Mortgage Services moved to dismiss the complaint on the ground of improper venue and to dismiss Maloney as a party defendant on the ground that the complaint failed to allege sufficient ultimate facts to show that Maloney was liable to plaintiff. The trial court granted the motion as to Maloney *497but refused to dismiss the complaint as to Property Mortgage Services, Inc. Defendant Financial Fire & Casualty Company answered the complaint and did not assert a venue privilege.
The trial court’s refusal to dismiss on the venue issue appears to have been based upon its conclusion that the movants failed to negate the right of plaintiff to maintain the suit in Hillsborough County. Accompanying the motion to dismiss filed by appellants is an affidavit indicating that Ma-loney and Property Mortgage Services, Inc., are exclusively domiciled in Broward County; that all transactions relative to the suit occurred outside Hillsborough County; that all property on which the mortgage application was made is located outside Hillsborough County; and Financial Fire & Casualty Company, as shown on the face of a power of attorney annexed to the complaint, has its principal office in Broward County.
The power of attorney was executed in July of 1968, some sixteen months before the affidavit was filed in support of the motion to dismiss. Accordingly, the power of attorney actually reflects that Financial Fire & Casualty in July 1968 had its principal , office in Broward County. Nevertheless, we feel that the affidavit together with the power of attorney constituted a prima facie showing that Financial Fire & Casualty Company was operating in Broward County at all times relevant to this case and, absent any rebuttal by plaintiff, satisfies the burden imposed upon movants. L. B. McLeod Construction Company v. State, 106 Fla. 805, 143 So. 594 (1932); Hill v. Vetter, Fla.App.1970, 231 So.2d 286.
Although it appears that Financial Fire & Casualty Company’s failure to assert a venue privilege amounts to a tacit admission that venue as to it alone would have been proper in Hillsborough County, this waiver cannot be taken to deny its codefendants their venue privilege. Even if Financial Fire & Casualty Company were doing business in Hillsborough County, the unrebutted prima facie showing that it has its principal place of business in Broward County requires reversal of that portion of the lower court’s order appealed from under the rule announced by this court in Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla.App.1969).
Reversed.
PIERCE and McNULTY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Walt Disney World Co. & Ins. Co. of N. Am. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)…in Polk County within the purview of § 47.011, F.S.A. The trial court’s denial of the plea of privilege was therefore error.” (footnote omitted). The rule was also applied in Allen v. Summers, 273 So. 2d 13 (3rd DCAFla.1973); Maloney v. Fleishaker, 238 So. 2d 496 (2nd DCAFla.1970); King v. King, 188 So. 2d 857 (4th DCAFla.1966), and was recognized by this court, but not applied because the facts did not so warrant, in Sage v. Travelers Indemnity Company of Hartford, 239 So. 2d 831, 833 (4th DCA Fla.1970). A…
-
Inter-Medic Health Ctrs., Inc. v. Murphy, 400 So. 2d 206 (Fla. 1st DCA 1981)…hough the corporate defendant may have other residences; in such circumstances venue is proper, pursuant to § 47.011, Florida Statutes, only in the county of “joint residence.” See Enfinger v. Baxley, 96 So. 2d 538 (Fla.1957); Maloney v. Fleishaker, 238 So. 2d 496 (Fla.2d DCA 1970). While a venue objection is subject to waiver, see Inverness Coca Cola Bottling Co. v. McDaniel, 78 So. 2d 100 (Fla.1955), Inter-Medic’s failure to make an adequate objection does not preclude the assertion of a venue objection b…
-
Jones v. Hickman, 263 So. 2d 275 (Fla. 2d DCA 1972)…In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant’s breach.” Accord: Maloney v. Fleishaker, Fla.App.1970, 238 So. 2d 496, and James A. Knowles, Inc. v. Imperial Lumber Company, Inc., Fla.App.1970, 238 So. 2d 487. The contract involved in the case sub judice was entered into in Pinellas County, the services for which Jones was to be paid were actually performed in Pin…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- L. B. McLeod Constr. Co. v. State, 106 Fla. 805 (Fla. 1932)
- Commercial Carrier Corp. v. Levada Mercer, 226 So. 2d 270 (Fla. 2d DCA 1969)
- Hill v. Vetter, 231 So. 2d 286 (Fla. 2d DCA 1970)