FRANCISCO VELEZ, APPELLANT,
v.
MELL D. LEONARD & ASSOCIATES, INC., A FLORIDA CORPORATION, APPELLEE
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A defamation plaintiff sued in Hillsborough County where he was defamed at his place of employment. The trial court dismissed for improper venue, but the appellate court reversed, holding that the plaintiff's initial venue selection was proper because the tort accrued where the defamatory communications were made to his employer.
The court reversed the trial court's order, holding that venue was proper in Hillsborough County because the cause of action for defamation accrued where the defamatory communications were made to the plaintiff's employer. The defendant failed to meet its burden of proving venue was improper because its affidavit addressed only the employment contract and Orange County business operations but made no reference to the communications with the plaintiff's employer in Hillsborough County.
[1] A defendant bears the burden of pleading and proving that venue is improper.
[2] A defendant seeking to transfer venue must provide specific averments that negate the plaintiff's right to sue in the chosen county and specify where the cause of action…
Previewing 2 of 5 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 plaintiff has the right initially to select venue, and the burden of pleading and proving that venue is improper is upon the defendant.”
Establishes the fundamental principle that plaintiffs choose venue and defendants must prove it improper.
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Join FLexlaw to unlock all legal intelligenceFrancisco Velez filed a defamation suit against Mell D. Leonard & Associates, Inc., alleging the defendant made verbal and written contacts to his emp…
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SCHEB, Judge.
Appellant/plaintiff filed suit against the appellee/defendant in the circuit court in Hillsborough County. The trial court, citing Sections 47.011 and 47.051, Florida Statutes, dismissed plaintiff’s complaint without prejudice to refiling in the county of proper venue. This appeal ensued. We reverse.
The gravamen of the plaintiff’s complaint is that he has been defamed through certain verbal and written contacts made by the defendant to his employer in Hillsborough County.
Defendant supported its motion to abate and transfer the cause to Orange County with an affidavit of its president, Mell Leonard. Leonard referred to an employment contract between the plaintiff and defendant with certain sums payable to the defendant in Orange County where it maintains its sole offices. Affiant further stated that since the corporation does not maintain an office in Hillsborough County and all of defendant’s witnesses reside in Orange County, that it would be a hardship for the defendant to defend the instant action in Hillsborough County.
Sections 47.011 and 47.051, Florida Statutes, each permit institution of a suit “where the cause of action accrues.” The plaintiff has the right initially to select venue, and the burden of pleading and proving that venue is improper is upon the defendant. See Tribune Co. v. Approved Personnel, Inc., 115 So. 2d 170 (Fla. 1st DCA 1959).
Here, the plaintiff’s complaint alleged a tort action for defamation of the plaintiff at plaintiff’s place of employment in Hillsborough County. It was incumbent on the defendant to establish all matters which would negative the plaintiff’s initial selection of venue. See Inverness CocaCola Bottling Co. v. McDaniel, 78 So. 2d 100 (Fla.1955). Yet, defendant’s affidavit, while relating to contractual negotiations between the parties concerning an employment contract, makes no reference to any communications between it and plaintiff’s employer. Thus, the defendant’s affidavit in no way negates the plaintiff’s allegations that the cause of action here sued upon accrued in Hillsborough County.
As stated by Judge Walden, speaking for the Fourth District, in Stolley & Associates v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971):
“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. Such venue objection should contain specific averments negativing the plaintiff’s right to bring the suit where brought and should contain specific averments 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.”
Finally, attempts by defendant to support the trial court’s ruling on the doctrine of “forum non conveniens” under Section 47.122, Florida Statutes, are not persuasive. While it is apparent that defendant’s witnesses reside in Orange County, it is just as obvious that the plaintiff’s witnesses are in Hillsborough County. Therefore, defendant’s reliance on England v. Cook, 256 So. 2d 403 (Fla. 3d DCA 1972), is misplaced for in England it was clear that no witnesses lived in the transferor forum. Accordingly, the order appealed is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.
McNULTY, C. J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Coleman P. Houchins, Jr. v. Fla. E. Coast Ry. Co., 388 So. 2d 1287 (Fla. 3d DCA 1980)…parties would result from a trial in Dade County, the forum chosen by Houchins, was simply not satisfied. See Ashland Oil, Inc. v. Florida Department of Transportation, 352 So. 2d 567 (Fla. 2d DCA 1977); Velez v. Mell D. Leonard & Associates, Inc., 338 So. 2d 896 (Fla. 2d DCA 1977). The trial court’s contrary finding is unsupported by the record. The fact that the incident occurred in Broward County makes venue proper there, but does not make Dade a forum non conveniens. When venue is proper in more than on…
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Domenico Loiaconi v. Gulf Stream Seafood, Inc., 830 So. 2d 908 (Fla. 2d DCA 2002)…sota 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. Id. That burden is not met where a defendant files an unsworn motion and does not present affidavits or other sworn proof in support of the moti…
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Kuvin, Klingensmith & Lewis, P. A. v. Fla. Ins. Guar. Ass'n, Inc., 371 So. 2d 214 (Fla. 3d DCA 1979)…rimary witnesses. Moreover, there is no dispute that the legal services were rendered and that the cause of action sued upon therefore arose here. Under these circumstances, a change of venue is improper. Velez v. Mell D. Leonard & Associates, Inc., 338 So. 2d 896, 897 (Fla. 2d DCA 1976) is determinative: “Finally, attempts by defendant to support the trial court’s ruling on the doctrine of ‘forum non conveniens’ under Section 47.122, Florida Statutes, are not persuasive. While it is apparent that defendant’…
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)
- Tribune Co. v. Approved Pers., Inc., 115 So. 2d 170 (Fla. 1st DCA 1959)
- Stolley & Assocs., Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971)
- England v. Cook, 256 So. 2d 401 (Fla. 3d DCA 1972)