Gallagher v. Smith

517 So. 2d 744, 13 Fla. L. Weekly 83, 1987 Fla. App. LEXIS 11801, 1987 WL 3349
CourtDistrict Court of Appeal of Florida
DecidedDecember 30, 1987
DocketNo. 87-0242
StatusPublished
Cited by2 cases

This text of 517 So. 2d 744 (Gallagher v. Smith) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. Smith, 517 So. 2d 744, 13 Fla. L. Weekly 83, 1987 Fla. App. LEXIS 11801, 1987 WL 3349 (Fla. Ct. App. 1987).

Opinion

HERSEY, Chief Judge.

There are two interrelated issues in this appeal from a nonfinal order, and both involve venue. The parties entered into a contractual relationship and established a corporation to carry on the business contemplated by their arrangement. Disagreements arose and the underlying litigation resulted. Appellants filed their complaint in Broward County. Upon appellees’ motion and after notice and hearing, the order which is the subject of this appeal was entered transferring venue to Duval County.

Appellants’ complaint contains four counts: count I for breach of contract, count II for conversion, count III for civil theft, and count IV for corporate dissolution of Royl Concession Supply Co. (ROYL), the corporation organized pursuant to the contract

Appellees’ motion to change venue was based upon the fact that count IV of the complaint for corporate dissolution was required to be brought in Duval County pursuant to a specific venue statute, and that the remaining counts should also be transferred to Duval County, for the convenience of the witnesses and the interests of judicial economy.

[746]*746On appeal, appellants contend that they selected the proper location for the action in spite of the specific venue statute, and that at any rate, the factual criteria required by the specific venue statute were not met.

Section 47.011, Florida Statutes (1985), provides that “[ajctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is locat-ed_” Appellants contend that the contract in the present case was breached in Broward County. Appellants also contend that since a cause of action on a contract action accrues in the county where the contract is breached, Windsor v. Migliac-cio, 399 So.2d 65 (Fla. 5th DCA 1981), Broward County is the appropriate venue for count I of the lawsuit. Further, section 47.041, Florida Statutes (1985), provides that actions on several causes of action may be brought in any county where any of the causes of action arose, and when two or more causes of action joined arose in different counties, venue may be laid in any of such counties, although the court may order separate trials if expedient. In view of the above statutes, argue appellants, all counts of their complaint were properly brought in Broward County.

Appellants correctly note that the plaintiff in a lawsuit initially selects venue, and that a party seeking a change of venue has the burden of establishing that the initial choice was improper. Inverness Coco-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955); Orange Blossom Enterprises, Inc. v. Brumlik, 430 So.2d 13 (Fla. 5th DCA 1983).

As appellees pointed out below and argue here, however, section 607.274(2), Florida Statutes (1985), provides that proceedings by shareholders of a corporation to liquidate the assets and business of the corporation “shall be brought in the county in which the last known principal office of the corporation, as shown by the records of the Department of State, is situated.” (Emphasis added.) Further, if suit is brought under a specific statute that provides for its own individual venue, then such specifically prescribed venue governs over a general venue statute. Harvey v. Mattes, 484 So.2d 1382 (Fla. 5th DCA 1986); Hughes v. Hughes, 441 So.2d 688 (Fla. 2d DCA 1983); Hedron Construction Company v. District Board of Trustees of Brevard Community College, 420 So.2d 393 (Fla. 5th DCA 1982); Stewart v. Carr, 218 So.2d 525 (Fla. 2d DCA 1969). Therefore, argue appellees, since count IV of appellants’ complaint is governed by section 607.274(2), and since that statute provides for its own individual venue, section 607.274(2) governs over sections 47.011 and 47.041 in determining the venue of count IV.

Appellants, relying on Crescent Beach, Inc. v. Jarvis, 435 So.2d 396 (Fla. 5th DCA 1983), and Costner v. Costner, 263 So.2d 852 (Fla. 1st DCA 1972), argue that specific venue statutes control over general venue statutes only in cases involving one-count complaints. Where there is more than one count in a complaint, contend appellants, venue is proper if it is appropriately based on any of the counts. Neither Crescent Beach nor Jarvis involved a specific venue statute, however, and the general rules in those cases actually say no more than does section 47.041, Florida Statutes (1985). Neither case provides support for appellants’ contention that specific venue statutes govern general venue statutes only in cases of one-count complaints. We therefore conclude that appellants’ argument on this point is without merit, and that the lower court properly looked to section 607.274(2) to determine the venue of count IV of the complaint.

Whether application of section 607.274(2) in the present case required transfer of count IV to Duval County will be discussed presently. If we assume arguendo that the statute did require such a transfer, however, the next question is whether the remaining three counts of the complaint were also properly transferred.

The lower court stated in its order “that Counts I, II and III involve questions of law and fact common to Count IV, and that continued consolidation of all claims brought herein is in the interest of justice [747]*747and the convenience of the parties and witnesses.”

Appellees contend that transfer of the remaining counts along with count IV was proper, and, relying upon Ezell v. State Department of Health and Rehabilitative Services, 415 So.2d 832 (Fla. 3d DCA 1982), state in their answer brief that “where the trial court determines to transfer certain claims to a different county pursuant to a specific venue statute, it has broad discretion to determine whether also to transfer the remaining claims.”

In Ezell, the plaintiffs sued the Department of Health and Rehabilitative Services (HRS) and several of its employees. The defendants were sued in both their representative and individual capacities. The attorney general, representing HRS as well as the state employees, moved for a change of venue, which was granted. On appeal, the third district affirmed the order insofar as it transferred the claims against HRS, stating that under the state agency venue rule, HRS had the absolute privilege to have the action tried where the agency maintained its principal headquarters. As to the claims against the employees in their individual capacities, the court stated that initially, the election of venue on those claims was the prerogative of the plaintiff — but that when the state exercised its venue privilege, it was within the trial judge’s discretion whether to grant a transfer with respect to the claims against the defendants individually. The court then went on to state that because there were insufficient facts upon which it could determine whether there was an abuse of discretion in changing venue as to the individual employees, it would remand for consideration of the factors enunciated in section 47.122, Florida Statutes, and rule 1.270, Florida Rules of Civil Procedure.

Section 47.122, Florida Statutes (1985), provides that a court may transfer an action to any other court of record in which it might have been brought, for the convenience of the parties or witnesses or in the interest of justice.

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Bluebook (online)
517 So. 2d 744, 13 Fla. L. Weekly 83, 1987 Fla. App. LEXIS 11801, 1987 WL 3349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-smith-fladistctapp-1987.