CITY OF BRADENTON, APPELLANT,
v.
CHARLES O. FINLEY, INDIVIDUALLY, ETC., ET AL., APPELLEES
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The City of Bradenton appealed an interlocutory order denying its motion to dismiss for improper venue in a personal injury case where it was joined as a third-party defendant. The court held that municipalities have a common law right to be sued only in the county where located, even when joined as third-party defendants, and this right cannot be defeated by the third-party practice rule.
The court held that municipalities enjoy a common law right to be sued only in the county where located, whether as a defendant to a complaint or as a third-party defendant, and this right is not displaced by the third-party practice rule. The city's motion to dismiss for improper venue should have been granted.
“The municipality enjoys a right conferred by the common law, unchanged by statute (Williams v. City of Lake City, supra), to be sued only in the county where it is located, either as defendant to a complaint, or when made a defendant to a third party claim.”
Establishes the core holding that municipalities have an immutable common law right to be sued only in their home county
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Join FLexlaw to unlock all legal intelligenceJohn V. Middlesworth, a Dade County resident, sued Charles O. Finley and the Kansas City Athletic Division in Dade County circuit court for injuries s…
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This is an interlocutory appeal filed under Rule 4.2 F.A.R., 32 F.S.A., from an order relating to venue in an action for damages for personal injuries.
The plaintiff John V. Middlesworth, a resident of Dade County, filed this action in the circuit court in Dade County against Charles O. Finley, a non-resident of Florida, and the Kansas City Athletic Division of Charles O. Finley & Company, Inc., an Illinois corporation, allegedly doing business in the State of Florida. Thereafter the defendants filed a third party complaint *676against the City of Bradenton, a municipal corporation of Florida, situated in Manatee County.
In the complaint the plaintiff sought recovery against the named defendants for their negligence in failing to maintain certain premises in a reasonably safe condition, alleging that as a result thereof the plaintiff was injured when the floor on which he was standing in a baseball park gave way under him. The defendants, in their third party claim in which they joined the City of Bradenton as a defendant, alleged that by their agreement with the city the maintenance of the premises was the duty of the latter, for which they demanded damages against the city for any amount which should be assessed against the defendants on the plaintiff’s case.
The City of Bradenton, as a third party defendant, moved to be dismissed for improper venue, claiming the right to be sued only in the county in which the city was located. The subsequent order of the trial court denying that motion is the subject of this appeal.
We find error, and reverse on the authority of Williams v. City of Lake City, Fla.1953, 62 So.2d 732 and Amelia Island Mosquito Control District v. Tyson, Fla.App.1963, 150 So.2d 246. The municipality enjoys a right conferred by the common law, unchanged by statute (Williams v. City of Lake City, supra), to be sued only in the county where it is located, either as defendant to a complaint, or when made a defendant to a third party claim. The third party practice rule, 1.180(a) R.C.P., 30 F.S.A., does not operate to deprive a municipality, when made a third party defendant, from invoking its common law right to be sued only in the county where it is located. Such right reposed in the city can be waived. Its claim of improper venue here shows absence of waiver. The appellant city’s motion should have been granted.
Reversed.
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Metro. Dade Cnty. v. Kelly, 348 So. 2d 49 (Fla. 1st DCA 1977)…izing the split of authority as to whether the District's general venue privilege applied to a proceeding ancillary to the original action, this Court held that the District could claim its venue privilege. Similarly, in City of Bradenton v. Finley, 208 So. 2d 675 (Fla. 3d DCA 1968), the Court held that the City, a third party defendant, was entitled to invoke its common law right to be sued only in the county where it is located. Similarly, in the case sub judice, appellant Dade County’s motion to dismiss on…
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Ven-Fuel v. Jacksonville Elec. Auth., 332 So. 2d 81 (Fla. 3d DCA 1975)…ated in Williams v. City of Lake City, Fla.1953, 62 So. 2d 732; City of St. Petersburg v. Earle, Fla.App.1959, 109 So. 2d 388; Amelia Island Mosquito Control District v. Tyson, Fla.App.1963, 150 So. 2d 246; City of Bradenton v. Finley, Fla.App.1968, 208 So. 2d 675; Southern Gulf Utilities v. Mayo, Fla.App.1969, 239 So. 2d 146; Garland v. Railway Express Agency, Inc., Fla.App.1970, 237 So. 2d 787; Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, Fla.App.1974, 295 So. 2d 314, and cases cited therei…
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Stowers Equip. Rental Co. v. Donald L. Brown et ux., 370 So. 2d 1248 (Fla. 4th DCA 1979)…ange County. . Keller Building Products of Sarasota, Inc. v. Pan American Aluminum Corp., 347 So. 2d 728 (Fla. 2nd DCA 1977); Dorr-Oliver, Inc. v. Linder Industrial Machinery Company, 263 So. 2d 237 (Fla. 3rd DCA 1972); City of Bradenton v. Finley, 208 So. 2d 675 (Fla. 3rd DCA 1968). . For a compilation of many of the Federal cases see 6 Wright & Miller, Federal Practice & Procedure § 1445 at 240 et seq. (1971). . Trawick in his work on Florida Practice & Procedure § 5-13 (6th ed. 1978) criticises the Flor…
Authorities Cited
- Williams v. City OF Lake City, 62 So. 2d 732 (Fla. 1953)
- Amelia Island Mosquito Control Dist. v. Tyson, 150 So. 2d 246 (Fla. 1st DCA 1963)