FLICK MORTGAGE COMPANY AND NORMAN MCDONALD, APPELLANTS,
v.
MICROTEL, INC., A FLORIDA CORPORATION, APPELLEE
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Flick Mortgage Company and Norman McDonald appealed a trial court's denial of their motion to change venue in a breach of contract and unjust enrichment action brought by Microtel, Inc. The appellate court affirmed the denial, holding that appellants failed to carry their burden of proving the chosen venue was improper.
The appellants failed to carry their burden of proving that the plaintiff's chosen venue was improper, and therefore the trial court correctly denied the motion to change venue.
[1] A defendant bears the burden of proving that the plaintiff's chosen venue is improper.
[2] A plaintiff is not required to plead or prove the propriety of the initial venue selection.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Initially, the plaintiff chooses the venue of an action and he need not plead or prove the selection is proper. The burden of proof that the chosen venue is improper is upon the defendant.”
Establishes the fundamental rule allocating burden of proof in venue change motions.
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Join FLexlaw to unlock all legal intelligenceMicrotel filed suit against Flick and McDonald for unpaid telephonic services valued at $16,751.52 under a written contract. The contract initially sp…
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DOWNEY, Judge.
Appellee, Microtel, Inc., (Microtel) filed its complaint against Flick Mortgage Company (Flick) and Norman McDonald (McDonald) in two counts. Count one is based on a written contract, pursuant to which Microtel rendered telephonic services to Flick valued at $16,751.52. Flick, it is alleged, breached the contract by refusing to pay for said services. Count two alleges that McDonald is believed to be an agent or employee of Flick and that McDonald used a Microtel code and had access to Microtel facilities whereby he placed long distance calls. In the alternative, Microtel claims McDonald incurred charges for Microtel facilities in his individual capacity and, thus, he would be unjustly enriched were he not required to pay therefor. The written contract between Microtel and Flick is attached to the complaint. Among other things, said contract provides that all billing charges are due and payable upon receipt at Microtel offices in Miami, Florida. Also attached to the complaint is a copy of a bill sent by Microtel to Flick, which directs payment to be made to Micro-tel at its Boca Raton office. Further, in the complaint proper Microtel alleges that payment was due and payable in Boca Ra-ton, Florida.
Flick filed an unverified motion for change of venue, stating that McDonald was a resident of Dade County; that Flick was a corporation with an office for the transaction of business in Dade County; that the contract provides that all billings by Microtel are payable in Miami, Florida; and that venue should be changed for convenience of the parties and witnesses who are primarily located in Dade County. Therefore, Flick requested the trial court to transfer venue pursuant to Chapter 47, Florida Statutes, to Dade County, Florida.
Microtel thereafter filed an affidavit of its assistant treasurer, which states, among other things, that “[initially, Flick Mortgage was to make payments to an office in Miami, Florida, which payments were later changed to the Boca Raton, Florida office of Microtel.” The affidavit further states that the customer failed to pay the amounts due. The trial court denied the motion to change venue and this appeal ensued.
Initially, the plaintiff chooses the venue of an action and he need not plead or prove the selection is proper. The burden of proof that the chosen venue is improper is upon the defendant. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So. 2d 100 (Fla.1955). As set forth above, all we have here is the complaint and an unsworn motion by Flick to which Microtel filed an affidavit in response stating that the place of payment had been changed to Palm Beach County.
Under the foregoing circumstances, it appears that Flick and McDonald did not carry their burden of proof and that the trial court was correct in denying the motion to change venue.
AFFIRMED.
DELL and GLICKSTEIN, JJ., concur.
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Eclectic Source Network, Inc. v. Value Rent-A-Car, Inc., 611 So. 2d 585 (Fla. 3d DCA 1993)…intiff appeals from this non-final order. We reverse without prejudice. Initially, the plaintiff has the right to choose venue and the burden of pleading and proving that venue is improper is on the defendant. Flick Mortgage Co. v. Microtel, Inc., 486 So. 2d 697 (Fla. 4th DCA1986); Velez v. Mell D. Leonard & Assocs., Inc., 338 So. 2d 896 (Fla. 2d DCA1976). The defendants filed a motion [*586] to abate venue which merely recited Section 47.051, Florida Statutes (1991). Additionally, there were no affidavits…
Authorities Cited
- Inverness Coca-Cola Bottling Co. v. Lottie McDANIEL, 78 So. 2d 100 (Fla. 1955)