STOLLEY & ASSOCIATES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
EUGENE LAWRENCE, APPELLEE
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The court held that the defendant failed to meet their burden of proving improper venue with specific factual averments, thus the case should be maintained in the county where the plaintiff filed suit.
[1] The burden of pleading and proving that venue is improper rests upon the defendant.
[2] A defendant's venue objection must contain specific averments negativing the plaintiff's right to bring suit where brought and specific averments as to where the cause of…
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Join FLexlaw to unlock all legal intelligencePlaintiff sued defendant for engineering services rendered in Broward County. Defendant moved to dismiss for improper venue, claiming residence and ca…
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This is a venue problem. The trial court, upon defendant’s motion, transferred the case from the Court of Record in and for Broward County to the Fifteenth Judicial Circuit in and for Palm Beach County, pursuant to Rule 1.060(b), F.R.C.P., 30 F.S.A. We reverse.
Plaintiff sued defendant for damages in Broward County, the very simple gravamen of its complaint being “Defendant owes Plaintiff the sum of $5,237.50 for engineering services rendered to the Defendant from the period of February 2, 1969, to June 18, 1969.”
Defendant filed his Motion to Dismiss or Abate for Improper Venue. Defendant’s sole support therefor was an affidavit which provided,
*447“1. Affiant is a resident of Palm Beach County and maintains a business office in Palm Beach County at 205 Worth Avenue, Palm Beach, Florida, and Affiant does not have an office nor does he reside in Broward County, Florida.
“2. The cause, if any, accrued in Palm Beach County, State of Florida.”
We know that the cause of action shall be brought where the defendant resides, where the cause of action accrued, or where the property in litigation is located.1 Since defendant resides in Palm Beach County and since there is no property in litigation it follows that plaintiff can maintain the case in Broward County only if the cause of action accrued there.
With this background, it is the law of this state that plaintiff is not required to plead or prove that its selection of Broward County in which to bring suit was proper. The burden of pleading and proving that venue is improper is upon the defendant. And if defendant fails to sufficiently assert a venue objection, it is the defendant who must bear the consequences.2 Such venue objection should contain specific averments negativing the plaintiff’s right to bring the suit where brought and should contain specific aver-ments as to where the cause of action accrued (if that be the critical issue) with such degree of certainty as to exclude the idea that the suit was brought in the proper county.3
Harking back to the instant controversy, the only averment or showing whatever negativing plaintiff’s right to bring suit in Broward County as being the place where the cause of action accrued is the defendant’s naked, factually unsupported, conclusion of law that, “the cause, if any, accrued in Palm Beach County.” Determinations of where the cause of action accrued often pose difficult and sophisticated problems for courts and turn upon a detailed analysis of the facts, the theory of the case, the statutes, and the case law dealing therewith.4 Here, the defendant is not shown to be an expert and we believe his opinion, certainly where the facts upon which it is based are not known, to be entitled to no weight.5
We do not know where the cause of action accrued. We do know that defendant has failed to prove and sufficiently assert, with specific averments, that plaintiff’s venue choice was improper. Having so failed, the defendant must bear the consequence of having the suit maintained in Broward County.6
Viewing as we do from the high vantage of hindsight, it is neither our policy or purpose to be unduly critical. However, we would remind and emphasize this court’s earlier statement, “Venue questions require a close understanding of the salient facts and the pleader’s theories of law. Because venue must usually be decided at the outset of a case, it is often difficult to do so because at the beginning stages the record is slight, untested and unsettled. Thus, it is essential to a correct disposition that the presentment of the issue be marked by careful pleading, preparation, and conception of the cause of action.”7 Here, had *448the parties presented the facts in detail to the trial court in the first instance, it would have been most helpful and would have undoubtedly led to a correct decision, thereby eliminating the necessity for this appeal.
The order appealed is
Reversed.
CROSS, C. J., and REED, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979)…r established by sworn proof before the trial court. We reverse. Davis v. Dempsey, 343 So. 2d 950 (Fla. 3d DCA 1977); Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So. 2d 730 (Fla. 4th DCA 1975); Stolley & Associates, Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971). REVERSED. DOWNEY, C. J., and BERANEK, J., concur.…
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Orange Blossom Enters., Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983)…l matter a plaintiff often makes this showing in his complaint) in the absence of a sufficient challenge by defendant. Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So. 2d 161 (Fla. 5th DCA 1980); Stolley Associates, Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971). Here, plaintiff alleged non-payment of sums due to be paid in Orange County. Defendant’s affidavits [*15] merely alleged the residence” of the corporation in Dade County and the fact that the negotiations and signing took place…
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Sheffield Steel Prods., Inc. v. Powell Bros., Inc., 385 So. 2d 161 (Fla. 5th DCA 1980)…puter Serv., Inc., 311 So. 2d 730 (Fla. 4th DCA 1975). Sheffield was not required to plead or to prove that its selection of Putnam County was proper, in the absence of a sufficient challenge by the defendant. Stolley & Associates, Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971). To paraphrase from the Stoliey case: [*163] We do not know where the cause of action accrued. We do know that defendant has failed to prove and sufficiently assert, with specific averments, that the plaintiff’s venue choice was…
Previewing 3 of 12 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)
- Mendez v. George Hunt, Inc., 191 So. 2d 480 (Fla. 4th DCA 1966)
- Merrill Lynch v. Nat'l Bank OF Melbourne & Tr. Co., 238 So. 2d 665 (Fla. 4th DCA 1970)
- Permenter v. Bank OF Green Cove Springs, 136 So. 2d 377 (Fla. 1st DCA 1962)
- Tribune Co. v. Approved Pers., Inc., 115 So. 2d 170 (Fla. 1st DCA 1959)
- Arbra Green v. City OF Hollywood, 174 So. 2d 538 (Fla. 1965)
- Allen v. State, 174 So. 2d 538 (Fla. 1965)