ETH-WHA, INC., A KENTUCKY CORPORATION, D/B/A BUDGET RENT-A-CAR OF VERO BEACH, APPELLANT,
v.
SHERRY BLANKENSHIP AND DENNIS BLANKENSHIP, WIFE AND HUSBAND, INDIVIDUALS, APPELLEES
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ETH-WHA, Inc. appealed a trial court's denial of its motion to transfer venue from Hillsborough County to Indian River County in a personal injury action. The court reversed, holding that the defendant met its burden of proving venue was improper and that bare allegations in the plaintiff's complaint were insufficient to overcome the defendant's affidavit evidence.
Venue was improperly laid in Hillsborough County. The defendant met its burden of proving improper venue through an affidavit, and once the defendant controverted the plaintiff's unsworn allegations, the plaintiff was required to prove proper venue but failed to do so. Bare allegations in the complaint are insufficient to sustain venue selection once contradicted by affidavit.
[1] A defendant challenging venue bears the burden of pleading and proving that venue is improper.
[2] A bare allegation in a complaint is insufficient to sustain venue when controverted by a defendant's affidavit.
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Join FLexlaw to unlock all legal intelligence“It is the plaintiff's prerogative to initially select the venue in accordance with the applicable venue statute; the burden of pleading and proving that venue is improper is upon the defendant.”
Establishes the foundational principle governing venue disputes and burden allocation between parties.
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Join FLexlaw to unlock all legal intelligenceAppellees, residents of Hillsborough County, filed suit seeking damages for personal injuries from an automobile accident that occurred in Monroe Coun…
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DANAHY, Acting Chief Judge.
Eth-Wha, Inc., appeals a nonfinal order denying its motion to transfer venue to Indian River County. We find that the trial court erred in ruling that venue was properly laid in Hillsborough County and therefore reverse.
Appellees, residents of Hillsborough County, filed an amended complaint in the Circuit Court for Hillsborough County seeking damages for personal injuries arising out of an automobile accident in Monroe County. The automobile which collided with appellees’ automobile had been rented from appellant in Indian River County. Appellees further alleged that appellant had offices located in Hillsborough County.
Appellant supported its motion challenging venue with an affidavit of its corporate secretary which stated that appellant’s “sole place of business is in Vero Beach, Indian River County, Florida” and that appellant has “no offices ... agents or representatives ... engaged in business in Hills-borough County.” Appellees did not respond to the affidavit.
Appellant is a foreign corporation doing business in Florida. Section 47.051, Florida Statutes (1983), the relevant venue statute, provides that such actions:
[S]hall 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.
It is the plaintiff’s prerogative to initially select the venue in accordance with the applicable venue statute; the burden of pleading and proving that venue is improper is upon the defendant. See Sheffield Steel Products v. Powell Brothers, 385 So. 2d 161 (Fla. 5th DCA 1980); Perry Building Systems v. Hayes & Bates, Inc., 361 So. 2d 443 (Fla. 1st DCA 1978); Velez v. Mell D. Leonard & Associates, 338 So. 2d 896 (Fla.2d DCA 1976).
In the case before us, appellant met its burden and demonstrated that appel-lees’ selection of venue was improper. Although the unsworn factual allegation in appellees’ complaint that appellant had offices in Hillsborough County might have supported the trial court’s ruling, appellant filed an affidavit controverting that allegation. Thereupon, appellees were required to prove that their selection of Hillsbor-ough County was proper. See Sheffield. They failed to do so. Under such circumstances, the bare allegation in appellees’ amended complaint is insufficient to sustain their initial selection of venue. See Sheffield Steel Products; Perry Building Systems; Velez. Consequently, appellant’s motion to transfer venue should have been granted.
Accordingly, we reverse the order of the trial court and remand the cause with directions to enter an order transferring this action to the circuit court of either Monroe County, where the cause of action accrued, or Indian River County, where the appellant has an office. Fla.R.Civ.P. 1.060(b). See Macasphalt Corp. v. General Development Corp., 353 So. 2d 878 (Fla.3d DCA 1977).
SCHOONOVER and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- W. D. Little, Jr., M.D. v. Smeltzer, 361 So. 2d 443 (Fla. 2d DCA 1978)
- 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)
- Williams v. State, 338 So. 2d 896 (Fla. 2d DCA 1976)
- Velez v. Mell D. Leonard & Assocs., Inc., 338 So. 2d 896 (Fla. 2d DCA 1976)
- MacAsphalt Corp. v. Gen. Dev. Corp., 353 So. 2d 878 (Fla. 3d DCA 1977)