ORANGE BLOSSOM ENTERPRISES, INC., ETC., APPELLANT,
v.
TIMOTHY S. BRUMLIK AND BIONIC INSTRUMENTS OF DELAWARE, INC., ETC., ET AL., APPELLEES
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Orange Blossom Enterprises appealed the denial of its motion to change venue from Orange County to Dade County in a breach of contract action. The court affirmed, holding that where non-payment is the alleged breach, venue is proper where payment was due to be made, not where the contract was negotiated or the defendant is domiciled.
Venue was proper in Orange County. For a breach of contract action based on non-payment, the cause of action accrues where payment was due to be made, not where the contract was negotiated, signed, or where the defendant is domiciled. Orange Blossom, as the moving party, bore the burden of proving the initial venue was improper, which it failed to do.
[1] In a contract action against a domestic corporation, venue lies where the corporation has an office for the transaction of ordinary business or where the cause of action…
[2] For venue purposes in a contract action, the cause of action accrues where the contract is breached.
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Join FLexlaw to unlock all legal intelligence“For venue purposes in a contract action, a cause of action accrues where the contract is breached. If the breach alleged is the failure to make payment due on the contract, the cause of action accrues where performance of the act of payment was to occur.”
Establishes the rule that payment location determines venue in non-payment breach cases, not contract formation location.
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Join FLexlaw to unlock all legal intelligenceTimothy Brumlik sued Orange Blossom Enterprises and Bionic Instruments in Orange County Circuit Court for breach of contract, alleging non-payment of …
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ORFINGER, Chief Judge.
This appeal is from a non-final order denying appellant’s motion for change of venue. Fla.R.App.P. 9.130(a)(3)(A). We affirm.
Appellee Timothy Brumlik filed a complaint in the Circuit Court of Orange County, Florida, against Orange Blossom Enterprises, Inc. (Orange Blossom) and Bionic Instruments of Delaware, Inc. (Bionic), seeking damages for breach of contract, alleging that the breach occurred because of non-payment by the defendants, and alleging that payment was due in Orange County. A default has been entered against Bionic, which is not involved in this appeal. Orange Blossom moved to change venue to Dade County, alleging that it is a domestic corporation, domiciled in Dade County where the contract in question was negotiated and entered into, and that it was therefore entitled to be sued in Dade County-
No property is involved here, so the venue against this domestic corporation lies either where the corporation has, or usually keeps an office for the transaction of its ordinary business or where the cause of action accrued. Section 47.051, Florida Statutes (1981). Since Orange Blossom does not maintain an office in Orange County, we look to where the cause of action accrued.
For venue purposes in a contract action, a cause of action accrues where the contract is breached. If the breach alleged is the failure to make payment due on the contract, the cause of action accrues where performance of the act of payment was to occur. Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981). Coincidentally, the place where the contract was negotiated and signed may also be the place where payment is due, but it is the latter and not the former that determines where the cause of action accrues if non-payment is the alleged breach.
The party seeking the change of venue has the burden of establishing that the initial choice of venue was improper. The plaintiff is not required to plead and prove that his initial choice of venue is proper (although as a practical matter a plaintiff often makes this showing in his complaint) in the absence of a sufficient challenge by defendant. Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So. 2d 161 (Fla. 5th DCA 1980); Stolley Associates, Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971). Here, plaintiff alleged non-payment of sums due to be paid in Orange County. Defendant’s affidavits merely alleged the residence” of the corporation in Dade County and the fact that the negotiations and signing took place there, as well. Defendant did not carry its burden of showing that plaintiff’s choice of venue was improper. Appellee has filed a motion for the allowance of attorney’s fees on the ground that the contract in question provides that “[i]f there is any litigation arising hereunder, the prevailing party shall be entitled to recover ... attorney’s fees.” Because the decision involves only the question of venue, there has been no determination yet on who is the prevailing party on the merits, so any award of attorney’s fees will have to await the final outcome of the case. The motion for fees is therefore denied.
The order appealed from is
AFFIRMED.
DAUKSCH and COWART, JJ., concur.
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Soowal v. Marden, 452 So. 2d 625 (Fla. 3d DCA 1984)…v. BFA Corp., 424 So. 2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981). For venue purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises, Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983); Vital Industries, Inc. v. Burch, 423 So. 2d 1023 (Fla. 4th DCA 1982); Windsor v. Migliaccio, supra, 399 So. 2d at 66. For venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to…
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Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983)…852 (Fla. 1st DCA 1972); Steinhardt v. Palm Beach Whitehouse No. 3, Inc., 237 So. 2d 590 (Fla. 3d DCA 1970); James V. Freeman, Inc. v. Chemical Packaging Corp., 189 So. 2d 410 (Fla. 1st DCA 1966). . See Orange Blossom Enterprises, Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983); Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So. 2d 161 (Fla. 5th DCA 1980), review den. 392 So. 2d 1378 (Fla. 1980).…
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Symbol Mattress OF Fla., Inc. v. Royal Sleep Prods., Inc., 832 So. 2d 233 (Fla. 5th DCA 2002)…at the venue selected by the plaintiff is improper — it is insufficient to merely establish that venue is proper elsewhere. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So. 2d 100 (Fla.1955). See also Orange Blossom Enterprises, Inc. v. Brumlik, 430 So. 2d 13 (Fla. 5th DCA 1983). Furthermore, in seeking a change of venue the defendant must establish a sufficient record or basis for the relief requested because only upon a showing that the lawsuit was filed in the wrong county can the trial court grant a…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- Stolley & Assocs., Inc. v. Lawrence, 243 So. 2d 446 (Fla. 4th DCA 1971)
- Blanco v. Dep't OF Revenue, 385 So. 2d 161 (Fla. 2d DCA 1980)
- Sheffield Steel Prods., Inc. v. Powell Bros., Inc., 385 So. 2d 161 (Fla. 5th DCA 1980)