MACASPHALT CORPORATION, APPELLANT,
v.
GENERAL DEVELOPMENT CORPORATION, APPELLEE
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Macasphalt Corporation, a foreign corporation doing business in Florida, appealed a Dade County circuit court's denial of its motion to challenge venue in a breach of contract action brought by General Development Corporation. The court reversed, finding that venue was improper in Dade County under Florida's venue statute for foreign corporations.
The court held that venue was improper in Dade County because Macasphalt had no agent there, the cause of action did not accrue there (the breach occurred in Polk County where payment was made), and the property to be affected by the constructive trust was not located in Dade County. The mere fact that GDC maintained its principal office and records in Dade County did not establish proper venue.
[1] Actions against foreign corporations doing business in Florida must be brought in a county where the corporation has an agent or representative, where the cause of action…
[2] A cause of action for alleged overpayment accrues in the county where the payment was made.
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“Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”
This statutory provision establishes the three alternative bases for proper venue against foreign corporations, which the trial court failed to apply.
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Join FLexlaw to unlock all legal intelligenceMacasphalt Corporation and General Development Corporation had contracts under which Macasphalt would lay asphalt for GDC at various Florida locations…
The full statement of facts, procedural history, and disposition for this case are member content.
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CHARLES CARROLL, Associate Judge.
Macasphalt Corporation, a Delaware corporation doing business in Florida, defendant in an action against it in the Circuit Court of Dade County filed by the appellee General Development Corporation (GDC hereinafter) has appealed from an order denying its motion challenging venue. We find error, and reverse.
Pursuant to contracts between the parties covering a period of years, for the appellant to “lay” asphalt for GDC in certain locations in Florida with the cost of the material supplied and applied by appellant to be paid for to the appellant by GDC, the work was performed by appellant and was paid for by GDC. The amount for which appellant billed GDC, and which was paid, included approximately $338,000.00 which was the amount of the 4% Florida Sales Tax on the materials thus supplied and used. This action filed in Dade County by GDC against the appellant was to recover said sum. In a first count it was alleged collection of the sum from it by the appellant was a breach of contract. The second count sought recovery on the ground that under Ch. 212, Florida Statutes (1975) the obligation to pay such tax was on the appellant as the seller of the materials. By a third count GDC sought to impose a constructive trust for said amount upon the assets of the appellant.
With regard to venue of actions against a foreign corporation doing business in Florida, Section 47.051, Florida Statutes (1975) provides:
“ * * * Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”
The motion of the defendant-appellant challenging the venue in Dade County and the supporting affidavit of its president showed the appellant corporation maintained an office in Polk County where its books, records and bank account were located, and also had a branch office in Highlands County, and that it had not had and did not have any agent in Dade County. It was further disclosed that the cause of action did not accrue in Dade County. The alleged breach of contract by the appellant, if it occurred, was not in Dade County but was in Polk County. See: Mendez v. George Hunt, Inc., 191 So. 2d 480 (Fla. 4th DCA 1966). As an action for alleged overpayment by GDC to appellant, the payment was made in Polk County, making that the County in which the cause of action accrued. As to the count seeking to impose a constructive trust on the assets of the appellant corporation, the property to be affected thereby was not located in Dade County. The contention of GDC that the fact that GDC maintains its principal office and place of business and records in Dade County makes venue proper in Dade County, is without merit according to the cited statute.
For the reasons stated we hold the ruling of the court that venue was properly laid in Dade County was in error. The order appealed from is reversed, and the cause is remanded with direction to enter an order for transfer of the action to the circuit court of such one of the two counties in which the defendant-appellant maintains an office which the plaintiff-appellee may select, as provided for by Fla., R. Civ. P. 1.060(b).
It is so ordered.
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Earl W. Shomber & Co., Inc. v. Fla. Casino Assocs., Inc., 469 So. 2d 936 (Fla. 3d DCA 1985)…Florida Statutes (1983). Goodwin v. Figueroa, 407 So. 2d 1055, 1056 (Fla. 3d DCA 1981); American Fidelity Fire Insurance Co. v. Allied General Contractors, Inc., 365 So. 2d 442, 444 (Fla. 3d DCA 1978); Macasphalt Corp. v. General Development Corp., 353 So. 2d 878, 879 (Fla. 3d DCA 1977); James A. Knowles, Inc. v. Imperial Lumber Co., supra. The order appealed from is reversed and the cause is remanded to the trial court with directions to transfer the venue of this cause to Polk County, Florida. Reversed a…
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Goodwin v. Figueroa, 407 So. 2d 1055 (Fla. 3d DCA 1981)…ade County improper. I base my conclusion, as I believe the majority does, not on a theory of over [*1057] payment, but simply upon the fact that the alleged wrongful act was committed in Lee County. In Macasphalt Corp. v. General Development Corp., 353 So. 2d 878 (Fla.3d DCA 1978) the breaching act was alleged to be wrongful collection which was completed upon payment. In this case, the wrongful act was alleged to be that of withholding a sales deposit resulting in unjust enrichment or, alternatively, imposi…1 / 2
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Magical Cruise Co. Ltd. v. Renata Lohinski, 829 So. 2d 925 (Fla. 3d DCA 2002)…; see also Tropicana Products, Inc. v. Shirley, Jr., 501 So. 2d 1373, 1375 (Fla. 2d DCA 1987)(venue for the foreign corporation is proper in either of the two counties where the corporation maintained an office); Macasphalt Corp. v. Gen. Dev. Corp., 353 So. 2d 878 (Fla. 3d DCA 1977)(venue for a foreign corporation was proper in one of the two counties where corporation had an office). Ms. Yabluno-sky does not have an office nor does she reside in Miami-Dade County, instead she has an office and resides in Bro…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mendez v. George Hunt, Inc., 191 So. 2d 480 (Fla. 4th DCA 1966)