DEPARTMENT OF REVENUE, STATE OF FLORIDA AND DAWSON MCDANIEL, AS TAX COLLECTOR OF LEE COUNTY, FLORIDA, APPELLANTS,
v.
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF FORT MYERS, FLORIDA, APPELLEE
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Florida's Department of Revenue appealed the denial of its plea to change venue in a suit by First Federal Savings & Loan seeking to enjoin collection of intangible taxes. The court reversed, holding that absent a waiver, state agencies may only be sued outside their official headquarters county when the state has taken actual official action or made an imminent threat of action in that county.
The court reversed and held that the Department of Revenue's plea of privilege for change of venue should have been granted. The court established that a state agency may be sued outside its headquarters county only when it has taken actual official action in that county or made a real and imminent threat of such action. Here, neither condition was met.
[1] A state agency may be sued in a county other than its official headquarters only when the official action complained of has been performed in the county where suit is fil…
[2] A "formal notice assessment and demand" for delinquent taxes, without more, does not constitute "official action" for venue purposes.
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Join FLexlaw to unlock all legal intelligence“absent a waiver, the state or any of its agencies may be sued in a county other than that which is the situs of its official headquarters only when the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent.”
Establishes the controlling legal standard for venue over state agencies
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Join FLexlaw to unlock all legal intelligenceFirst Federal Savings & Loan filed suit in Lee County against the Department of Revenue and the Lee County Tax Collector to enjoin collection of certa…
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This interlocutory appeal asks us to decide a question of venue.
First Federal Savings and Loan Association of Fort Myers sued appellants in Lee County seeking to enjoin them from collecting certain intangible taxes. The appellant tax collector was joined as the collecting agent of the appellant Department of Revenue and is, accordingly, a nominal party only. The Department of Revenue filed a plea of privilege seeking a change of venue to Leon County where it “resides” and maintains its official headquarters. Change of venue was denied and this appeal ensued. We reverse.
We understand Florida law to be that absent a waiver, the state or any of its agencies may be sued in a county other than that which is the situs of its official *526headquarters only when the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent.1 We are called upon to decide, therefore, whether in this case the Department of Revenue either had indeed taken official action to collect the intangible taxes involved herein or whether the threat of such action was both real and imminent.
It undisputedly appears that the only action taken by the Department of Revenue was to send a “formal notice assessment and demand” for delinquent intangible taxes, specifying the amount and date due. The notice further advised that the tax should be paid “to avoid the service of a tax warrant to effect collection. .” We think this “notice” was a mere naked demand, and we perceive a material distinction between such a demand and affirmative action to enforce that demand. There was, in our view, no “official action” within the contemplation of the aforementioned rule upon which venue in Lee County could be predicated.
Now arguendo, there may have been a threat to enforce the aforesaid demand by tax warrant. But there was no assertion that a warrant would certainly be sought nor was a deadline given therefor. We construe the “threat,” therefore, as contingent rather than real and anticipatory rather than imminent. In fact, it is hardly more than a recitation of a possible legal remedy available for enforcement of the demand.
The question to be answered in these cases may be said to be whether the state is -the initial sword-wielder in the matter and whether the plaintiffs action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. On the other hand if plaintiff is the prime mover in the premises against a passive or dormant state or state agency then venue lies properly in the county wherein the state or the agency maintains its official headquarters. Appellant’s plea of privilege herein should have been honored.
Accordingly, the order appealed from is hereby reversed and the cause is remanded with directions either to abate the action or transfer the cause pursuant to Rule 1.060(b), R.C.P., 30 F.S.A.
Reversed.
PIERCE, C. J., and MANN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (38 total)
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Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)…authorized the application of the general venue statute in tort actions against the state. In addition, the Chothen court extended the “sword-wielder” exception announced in Department of Revenue v. First Federal Savings and Loan Ass’n of Ft. Myers, 256 So. 2d 524 (Fla. 2nd DCA 1971) from regulatory actions to torts. For the reasons stated herein we reject the Chothen reasoning and overrule that case. The so called “sword-wielder” doctrine applies only in those cases where the official action complained of h…
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Fla. Pub. Serv. Comm'n v. Triple "A" Enters., Inc., 387 So. 2d 940 (Fla. 1980)…rial court held and the plaintiffs contend that the “sword-wielder” doctrine, an exception to the state’s common law venue privilege, applies to the instant case. In Department of Revenue v. First Federal Savings and Loan Association of Fort Myers, 256 So. 2d 524, 526 (Fla. 2d DCA 1971), the court stated: The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s…
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Graham v. Edwards, 472 So. 2d 803 (Fla. 3d DCA 1985)…tion is in the nature of a shield against the state’s thrust. Hancock v. Wilkinson, 407 So. 2d 969, 970 (Fla. 2d DCA 1981); Graham v. Vann, 394 So. 2d [*806] 178 (Fla. 1st DCA 1981); Department of Revenue v. First Federal Savings & Loan Association, 256 So. 2d 524 (Fla. 2d DCA 1971); see Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d at 365-66. An explanation of the sword-wielder doctrine is given in Graham v. Vann, 394 So. 2d at 179: One recognized exception to the rule exists where an unlawful…
Previewing 3 of 38 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Henderson v. Gay, 49 So. 2d 325 (Fla. 1950)
- Dowdy v. Lawton, 72 So. 2d 50 (Fla. 1954)
- Ren Morris v. Earlene V. Williams, 199 So. 2d 747 (Fla. 2d DCA 1967)
- Mauro Claudio and Angelina Claudio v. Food Fair Stores, 133 So. 2d 431 (Fla. 3d DCA 1961)
- Green v. BOB Lourie Films, Inc., 133 So. 2d 431 (Fla. 3d DCA 1961)