Birdsall Shipping, S.A. v. Gallardo

390 So. 2d 437, 1980 Fla. App. LEXIS 18128

• Court: District Court of Appeal of Florida
• Decided: November 18, 1980
• Docket: No. 80-640
• Status: Published

Opinion

NESBITT, Judge.

Birdsall Shipping, S.A. (Birdsall) challenges the denial of its motion for a change of venue to Palm Beach County. We affirm on the basis that, as movant, it failed to carry its burden before the trial court.

Birdsall was joined as a co-defendant with Tropical Shipping and Construction Company Ltd. (Tropical). The affidavit of Birdsall’s vice president supported its contention that, as a foreign corporation, it had a right to be sued in Palm Beach County because that was the place where it maintained its business office. § 47.051, Fla. Stat. (1979).¹ On the assumption that its co-defendant, Tropical, resided in Palm Beach County, Birdsall correctly contends that both corporate entities were only amenable to suit in Palm Beach County, § 47.-021, Fla.Stat. (1979);² Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975); Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla. 2d DCA 1969).

The flaw in Birdsall’s argument is that there was no pleading or proof before the trial court to show the residency of its co-defendant, Tropical. The burden was upon Birdsall, as the movant, to establish its entitlement to a change of venue. Silver Star Citizens’ Committee v. City Council of Orlando, 194 So.2d 681 (Fla. 4th DCA 1967); Greene v. Hoiriis, 103 So.2d 226 (Fla. 3d DCA 1958).

Affirmed.

1 . 47.051 Actions against corporations.-Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation bas an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

2 . 47.021 Actions against defendants residing in different counties.-Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.