Pozo v. Roadhouse Grill, Inc.

790 So. 2d 1255, 2001 WL 908531
CourtDistrict Court of Appeal of Florida
DecidedAugust 10, 2001
Docket5D01-73
StatusPublished
Cited by4 cases

This text of 790 So. 2d 1255 (Pozo v. Roadhouse Grill, Inc.) 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
Pozo v. Roadhouse Grill, Inc., 790 So. 2d 1255, 2001 WL 908531 (Fla. Ct. App. 2001).

Opinion

790 So.2d 1255 (2001)

Rafael DeJesus POZO, Esquire, Appellant,
v.
ROADHOUSE GRILL, INC., et al., Appellees.

No. 5D01-73.

District Court of Appeal of Florida, Fifth District.

August 10, 2001.

*1256 Marlene S. Reiss of Stephens, Lynn, Klein, et al., Miami, for Appellant.

M. Gary Toole and Aaron D. Lyons of Cabaniss Smith Toole & Wiggins PL, Maitland, for Appellee Roadhouse Grill.

PLEUS, J.

Pozo appeals the trial court's non-final order denying his motion to dismiss for improper venue. This court has jurisdiction to review this non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A). Because the complaint fails to allege venue in Orange County, we reverse the trial court's denial of Pozo's motion to dismiss and remand for an evidentiary hearing to determine whether all defendants commonly reside in Dade County. If so, the trial court should transfer the case to Dade County.

Pozo is a defendant in the underlying suit for professional malpractice arising out of his representation of Roadhouse Grill, Inc. ("Roadhouse") in a workers' compensation and personal injury lawsuit. In the personal injury suit, Roadhouse and *1257 Roadhouse Grill North Miami, Inc., ("Roadhouse North Miami"), were sued by Eric Shine, who was injured during the course of his employment with Roadhouse North Miami. The lawsuit was filed in Dade County.

Roadhouse North Miami had a workers' compensation and employer liability insurance contract with Florida Agri-Business and Industries Self Insurance Fund. That entity was purchased by Humana Workers' Compensation Services, Inc. ("Humana"). Humana was obligated to defend Roadhouse North Miami in lawsuits that came under the insurance contract.[1]

Humana retained Pozo to defend both Roadhouse North Miami and Roadhouse in the personal injury suit. In the course of the proceeding, Humana won a declaratory judgment action in which the trial court ruled that only Roadhouse North Miami, as Shine's employer, was entitled to workers' compensation immunity. Humana further prevailed in a declaratory judgment action in which the trial court ruled that Humana had no duty to provide a defense or indemnification to Roadhouse. Pursuant to these rulings, Roadhouse North Miami obtained a summary judgment in the personal injury lawsuit and Humana withdrew its defense of Roadhouse, leaving Roadhouse as the only remaining defendant.

After Roadhouse settled Shine's case, it filed a complaint against Humana, Pozo and his former law firm, Miller, Kagan, Rodriguez & Silver, P.A. ("Miller Kagan"), alleging among other things, that Pozo negligently represented Roadhouse and conspired with Humana to Roadhouse's detriment. Roadhouse filed the action in Orange County. It alleged in the complaint that:

Venue is proper in Orange County, Florida, as Defendants are authorized to do business in Orange County, and pursuant to the contractual forum selection clause set forth in Exhibit "A".

The complaint further alleged that Pozo was "an attorney licensed to practice law in the state of Florida" and his law firm, Miller Kagan, was "organized for purposes of and to provide legal services in the State of Florida". It also alleged that the primary defendant, Humana, was a foreign corporation "authorized to do business in and from Orange County, Florida".

Pozo timely filed a motion to dismiss for improper venue, or alternatively, transfer the case to Dade County. The trial court denied the motion and Pozo appealed. Pozo argues that the trial court erred in refusing to transfer venue from Orange County to Dade County, relying on a venue selection clause in a contract to which neither Pozo nor Roadhouse were parties. Pozo also argues that the trial court abused its discretion in failing to transfer venue where it appeared on the face of the complaint that Orange County had no significant relationship to the case.

Roadhouse responds that venue was proper for several reasons: 1) the primary defendant, Humana, resides in Orange County; thus venue is proper under §§ 47.011 and 47.051, Florida Statutes; 2) Pozo is bound by a venue selection clause because he acted as Humana's agent; 3) the cause of action accrued in Orange County; and 4) Pozo failed to meet his burden of proving that Orange County was an improper venue.

Burden of Proof

Roadhouse argues that Pozo failed to meet his burden of proof in moving to *1258 transfer venue because he failed to file any affidavits or present any evidence as required by Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138, 1139 (Fla. 5th DCA 1998), in which this court stated that "any defendant seeking dismissal of a suit based upon Rule 1.061 forum non conveniens must support the motion by affidavit or other evidence offered under oath." Pozo admits that he did not file any affidavits or present any evidence, but argues that this case falls under the exception in Ground Improvement Techniques, Inc., "where the complaint itself shows on its face that a forum non conveniens transfer is warranted." Id. at 1139. See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970).

As discussed below, Roadhouse failed to allege sufficient facts to establish that Orange County was the proper venue, much less the most convenient venue in the underlying lawsuit. A plaintiff should allege in the complaint facts sufficient to support his venue selection. See Perry Bldg. Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978). Because Roadhouse failed to meet its initial burden of sufficiently pleading venue, Pozo's motion to dismiss was sufficient to challenge venue.

Residence Allegations

Roadhouse alleges that venue is proper because the primary, or target defendant, Humana, resides in Orange County (AB 9-10). In its complaint, Roadhouse alleges that:

2. Venue is proper in Orange County, Florida, as Defendants are authorized to do business in Orange County, and pursuant to the contractual forum selection clause set forth in Exhibit "A".

The complaint further alleges that Pozo was "an attorney licensed to practice law in the state of Florida" and his law firm and co-defendant, Miller Kagan, was "organized for purposes of and to provide legal services in the State of Florida." It also alleges that the primary defendant, Humana, was a foreign corporation "authorized to do business in and from Orange County, Florida."

Based on these allegations, Roadhouse failed to plead sufficient facts to establish venue based on residence. Regarding Humana, a foreign corporation, residence is defined as the "county where such corporation has an agent or other representative." § 47.051, Fla. Stat. Although Roadhouse argued at the hearing and on appeal that Humana's principal place of business is in Orange County, this fact is not alleged in its complaint. Nor does the complaint allege that Humana has an agent or other representative in Orange County. Roadhouse's allegation that Humana is "authorized to do business in Orange County" is not sufficient to establish venue based upon residence. See Aladdin Insurance Agency, Inc. v. Jones, 687 So.2d 937, 939 (Fla. 3d DCA 1997).

Similarly, Roadhouse's allegations regarding Pozo and his firm are insufficient to establish that they resided in Orange County. Actions brought against individual defendants shall be in the "county where the defendant resides." § 47.011, Fla. Stat. (2000).

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Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 1255, 2001 WL 908531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pozo-v-roadhouse-grill-inc-fladistctapp-2001.