MAURICE GELINA AND ASSOCIATES, INC., APPELLANT,
v.
MODULAR COMPUTER SYSTEMS, INC., AND ADVANCED PROMOTION TECHNOLOGIES, INC., APPELLEES

Fla. 3d DCA | 1994-07-12
No. 94-257
Before NESBITT, COPE and LEVY, JJ.
639 So. 2d 1060 Florida District Court of Appeal, Third District (1994) Positive Treatment
Cited by 4 cases

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Synopsis

MGA sued APT and MODCOMP in Dade County for breach of contract and other claims arising from an alleged brokerage agreement. APT moved to transfer venue to Broward County, and the trial court granted the motion. MGA appealed, arguing that since its principal place of business was in Dade County, venue should be proper there under the rule that payment is implied to be made where the contract creditor resides.


Holding

The trial court properly transferred venue to Broward County. Although the general rule from Davis v. Dempsey provides that payment is implied to be made where the contract creditor resides, this rule does not apply when the complaint itself affirmatively alleges that all material events, including the failure to pay, occurred in another county.


Headnotes

[1] A lawsuit may be brought in any county where the cause of action accrued, and if multiple causes of action exist, in any county where any of them arose.

[2] In a contract action for payment of money, the cause of action accrues in the county where payment was agreed to be made.

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Key Quotes

“If no place of payment has been expressly agreed upon, it will be implied that payment was to be made in the county where the contract creditor resides.”

Establishes the general Davis v. Dempsey rule for inferring place of payment in contract disputes.

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Facts & Procedural History

MGA, a company with its principal place of business in Dade County, initiated suit against APT and MODCOMP seeking damages for breach of a brokerage a…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Maurice Gelina & Associates, Inc. (MGA), whose principal place of business is in Dade County, initiated the underlying suit against Advanced Promotion Technologies, Inc. (APT) and Modular Computer Systems (MODCOMP) seeking damages arising out of an alleged brokerage agreement, asserting four causes of action against APT and MOD-COMP, including MODCOMP’s breach of an express and implied contract for a broker’s commission, APT and MODCOMP’s fraudulent deprivation of MGA’s broker’s commission, and APT’s tortious interference with the purported brokerage contract.

APT moved to transfer venue to Broward County. At the time of hearing, the only items of record were MGA’s complaint and APT’s motion to transfer. After the hearing, MGA submitted an affidavit in opposition to APT’s venue motion. The court granted APT’s motion to transfer venue. MGA then moved for rehearing, which the lower court denied. We affirm.

The principles of venue law are well settled. A lawsuit may be brought in any county where the cause of action accrued and, if several causes of action are involved, in any county where anyone of the causes of action arose. §§ 47.011, 47.041, Fla.Stat. (1993). In an action on a contract for the payment of money, where the contract debt-or has defaulted on payments thereunder, the action accrues in the county where payment was agreed to be made. Further, as stated in Davis v. Dempsey, 343 So. 2d 950, 952 (Fla. 3d DCA 1977) and relied upon by appellants, “If no place of payment has been expressly agreed upon, it will be implied that payment was to be made in the county where the contract creditor resides.” Id. See Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934).

Citing Davis v. Dempsey, MGA argues that having failed to allege where payment was to be made, it must be inferred that payment was to be made in Dade County, since the complaint clearly alleges that Dade County was the broker’s principal place of business. Appellant’s reliance in the instant case upon Davis v. Dempsey and cases cited therein, however, is misplaced because the instant complaint specifically provided all allegations occurred in Broward County and those allegations included the failure to pay. MGA’s complaint alleged in part:

31. MODCOMP’s failure to pay any of the commissions on the rental constitutes a breach of contract.

37. MODCOMP breached the aforesaid implied contract by refusing to pay any such commission.

Also, and significantly:

5. All material allegations alleged herein occurred in Broward County, Florida.

Thus, the general rule of Davis v. Dempsey could not be used to support the choice of venue in Dade County. Plaintiffs complaint affirmatively demonstrated that venue in Dade County was lacking. See Davis v. Dempsey, 343 So. 2d at 952; see also Borkson, Simon & Moskowitz, P.A. v. Troutman, 534 So. 2d 928 (Fla. 4th DCA 1988); Magee v. Liberty Mut. Ins. Co., 366 So. 2d 827 (Fla. 4th DCA 1979). MGA’s affidavit submitted subsequent to hearing could not change this result. Thus, we find no error in the change in venue ordered.

Accordingly, the order under review is affirmed.

NESBITT and LEVY, JJ., concur.

Concurrence
COPE, Judge

COPE, Judge

(specially concurring).

I agree that the basis for the venue objection appeared on the face of the complaint, and for that reason there was no occasion to consider affidavits. The plaintiff may have been able to amend to cure the problem, but leave to amend was not requested.


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Citator

Cited By

  • …l follows. It is well settled that where a complaint contains multiple causes of action, venue is proper where any one of the causes of action arose. § 47.041, Fla.Stat. (1993); Maurice Gelina and Associates, Inc. v. Modular Computer Systems, Inc., 639 So. 2d 1060 (Fla. 3d DCA 1994). In this case there are four counts. Count III is for breach of contract against Detzer individually. Sunshine Yacht alleges that it fully performed its obligations under a yacht brokerage contract, and that “Defendant, Detzer, b…
  • …ach of a pledge accrues where the pledge was agreed to be per [*953] formed. See Suzanne Walker & Assocs. v. Qualtec Quality Servs., Inc., 660 So. 2d 384 (Fla. 5th DCA 1995). See also Maurice Gelina & Assocs., Inc. v. Modular Computer Systems, Inc., 639 So. 2d 1060 (Fla. 3d DCA 1994). As the charity argues, because the instant pledge was made in Dade, $70,000 in payments were made in Dade, and the balance of the pledge was due to be paid in Dade, Lubavitch’s choice of venue in Dade was proper. The bank having…

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