DOROTHY H. FOSTER, APPELLANT,
v.
RALPH GRECO AND WILLIAM D. FOSTER, APPELLEES
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The court held that venue for a suit on an unsecured promissory note is proper only in the county where the note was signed or where the maker resides.
[1] Venue for suits on unsecured promissory notes is proper only in the county where the note was signed or where the maker resides.
[2] A contract's place of payment is not determinative of venue for suits on unsecured promissory notes.
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Join FLexlaw to unlock all legal intelligenceAppellee sued appellant on a promissory note in Broward County, alleging it was executed there. Appellant, a resident of Sumter County, moved for a ch…
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DOWNEY, Judge.
This is an interlocutory appeal from an order denying appellant’s motion for change of venue.
Appellee Ralph Greco sued appellant and her husband in Broward County, Florida upon a promissory note. The unsworn complaint alleged that appellants executed and delivered the note in Broward County. Appellant’s sworn motion for change of venue stated that appellant was currently a resident of Sumter County and that she signed the unsecured promissory note in Sumter County. Appellee Ralph Greco responded with an affidavit which in pertinent part stated that he resided in Bro-ward County and that the note was payable in Broward County.
The trial court denied the motion for change of venue citing Gorman v. Royal American Construction Company, Inc., Fla.App.1971, 247 So. 2d 66.
If the contract out of which this suit arose were one other than upon an unsecured promissory note the trial court would have been correct in concluding that the venue as laid in Broward County was proper because payment was to be made in Broward County. Section 47.011 F.S.1973, Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Baruch v. W. B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939).
However, we are here dealing with an unsecured promissory note so that the question of venue is controlled not by § 47.011, supra, but by § 47.061 F.S.1973. That section provides, inter alia, that suits on unsecured promissory notes shall be brought only in the county in which such notes were signed by the maker or in which the maker resides. The proof here is that the note was signed in Sumter County and appellant resides in Sumter County. Thus, Sumter County' is the proper venue for this suit.
In our judgment the trial court’s reliance upon Gorman v. Royal American Construction Company, Inc., supra, is misplaced. This case is controlled by Woodley Lane, Inc. v. Nolen, Fla.App.1962, 147 So. 2d 569.
The order appealed from is reversed and the cause is remanded with instructions to transfer the case to Sumter County.
Reversed and remanded.
OWEN and MAGER, TJ., concur.
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Domenico Loiaconi v. Gulf Stream Seafood, Inc., 830 So. 2d 908 (Fla. 2d DCA 2002)…Nat’l Bank, 415 So. 2d 906, 907 (Fla. 3d DCA 1982). Moreover, the allegation that Gulf Stream executed and delivered the promissory note in Sarasota County was sufficient to support venue in Sarasota County under section 47.061. See Foster v. Greco, 320 So. 2d 43, 44 (Fla. 4th DCA 1975). The right to initially select venue belongs to the plaintiff. Velez v. Mell D. Leonard & Assocs., Inc., 338 So. 2d 896, 897 (Fla. 2d DCA 1976). It is the defen [*910] dant’s burden to plead and prove that venue is improper.…
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Searle v. Fortune Fed. Sav. & Loan Ass'n, 480 So. 2d 187 (Fla. 2d DCA 1985)…reed to venue. Searle’s affidavit concerning his residence and place of execution of the promissory note, accordingly, did not violate the parol evidence rule. See generally, Baker v. Huvel, B. V., 420 So. 2d 335 (Fla. 3d DCA 1982); Foster v. Greco, 320 So. 2d 43 (Fla. 4th DCA 1975); see also, Holiday Truck & Car Sales, Inc. v. Coldewey, 434 So. 2d 344 (Fla. 2d DCA 1983). The trial court, therefore, erred in refusing to consider Searle’s affidavit. Upon considering the affidavit, we find the court also erred…
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Norton M. Baker, M.D. v. Huevel, 420 So. 2d 335 (Fla. 3d DCA 1982)…ial court on the venue issue is the sworn affidavit of Dr. Baker reciting that the notes were made and delivered in Orange County, Florida, and that he is an Orange County resident. Consistent with the holding of our sister court in Foster v. Greco, 320 So. 2d 43 (Fla. 4th DCA 1975), we likewise conclude that in the absence of any other proofs, Section 47.061 is controlling. Accordingly, we reverse the order of the trial court and remand with directions to enter an order transferring the cause to the circui…
Authorities Cited
- Simmons v. State, 115 Fla. 733 (Fla. 1934)
- Jung H. Moon v. Ima-Park Place, LLC (Fla. 3d DCA 2021)
- Sailing W. Baruch v. W. B. Haggerty, Inc., 137 Fla. 799 (Fla. 1939)
- Woodley Lane, Inc. v. Truly Nolen, 147 So. 2d 569 (Fla. 2d DCA 1962)
- Gorman v. Royal Am. Constr. Co., Inc., 247 So. 2d 66 (Fla. 1st DCA 1971)