Chase v. Jowdy Industries, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
JACK CHASE,
Appellant,
v.
JOWDY INDUSTRIES, INC.,
Appellee.
No. 4D04-648
[October 12, 2005]
FARMER, J.
We review an order dismissing an action because venue was deemed
improper in Broward County. The court found that venue was proper in
another county but that plaintiff was barred from refiling the case in that
county by the lapse of the statute of limitations. Plaintiff argues that a
dismissal on such grounds is error. We agree.
Plaintiff filed his complaint in the circuit court in Broward County,
alleging that defendant violated a duty under the Whistleblower Act to
pay him wages. He asserted that venue was proper in Broward County
because he resided there. Later at a deposition, he answered that he
lived in Broward County when he filed suit. Later still, he filed an
affidavit seeking to change his deposition testimony.
His affidavit
showed that after the deposition he realized that he actually relocated to
Palm Beach County ten days before he filed suit.
Much later in the proceedings, defendant filed a motion for summary
judgment arguing that the cause should be dismissed because venue
was improper in Broward County and the claim was now barred by the
statute of limitations. At the non-evidentiary hearing, plaintiff asked the
court to deny the motion or, alternatively, to transfer venue to the circuit
court in Palm Beach County. The trial court concluded that venue
should have been laid in Palm Beach County, yet declined to transfer the
case because plaintiff had first requested transfer orally at the hearing.
The court was concerned that a transfer under these circumstances
would violate defendant’s right to notice .
The Whistleblower Act’s venue provision says that ‘[a]ny civil action
authorized under this section may be brought in the county in which the
alleged retaliatory personnel action occurred, in which the complainant
resides, or in which the employer has its principal place of business.” §
448.103(1)(b), Fla. Stat. (2005). The statute gives a plaintiff the privilege
of selecting venue from any of the alternatives specified. See P.V. Holding
Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998) (it is well
established that where venue is proper in more than one county, the
choice of forum rests with the plaintiff).
We think the statutory venue provision based on plaintiff’s residence
is reasonably understood as including the time when the conduct
allegedly violating the Act is said to have occurred.1 If plaintiff resided in
Broward County when the employer allegedly violated the Whistleblower
obligation to pay him wages, that would certainly seem sufficient to
establish venue in that county. A plaintiff’s relocation around the time of
filing suit should not defeat venue that was proper when the cause of
action accrued.
Even if w agreed with the court’s reading of the venue provision,
e
dismissal would still not be the remedy when the correct venue is
elsewhere in this state. Rule 1.060(b) specifies that:
“When any action is filed laying venue in the wrong county,
the court may transfer the action in the manner provided in
rule 1.170(j) to the proper court in any county where it might
have been brought in accordance with the venue statutes.”
Fla. R. Civ. P. 1.060(b) (2005). In spite of the fact that this text is a grant
of authority, the word may in the foregoing rule functions like should.
“Although venue does not lie in Broward, the proper remedy
is to transfer the case to [the prope r county].
‘[T]he party contesting venue must demonstrate where
the proper venue is. In ruling on a motion to dismiss
for improper venue, if the movant successfully carries
This contrasts with provisions relating to a defendant’s residence, which
necessarily refer to the defendant’s residence when suit is filed. See Gates v.
Stucco Corp., 112 So.2d 36 (Fla. 3d DCA 1959) (rights of defendants under
venue statute authorizing suit in county where defendants reside, were to be
determined on basis of defendants’ residence at time of filing of suit).
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his burden, the trial court should make an affirmative
finding as to the proper ve nue and, unless there is a
compelling reason to the contrary, transfer the cause
to that venue in accordance with Rule 1.060(b),
F.R.C.P., rather than dismiss it.’
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of
Melbourne and Trust Co., 238 So.2d 665, 667 (Fla. 4th DCA
1970).
“While Florida Rule of Civil Procedure 1.420(b) implies that
dismissal may also be available in this situation, since it
states that a dismissal for improper venue is not a decision
on the merits, dismissal under these circumstances is
disfavored.”
Carr v. Stetson, 741 So.2d 567, 569 (Fla. 4th DCA 1999). Other courts
have reached the same conclusion. See McClain v. Crawford, 815 So.2d
777 (Fla. 2d DCA 2002) (even if venue were improper, transfer rather
than dismissal was the proper remedy); Kinetics Com. Inc. v. Sweeney,
789 So.2d 1221, 1222 (Fla. 1st DCA 2001) (in ruling on motion
challenging venue, the trial court should make finding as to proper venue
and, unless there is a compelling reason to the contrary, transfer rather
than dismiss the action); Fogarty Van Lines, Inc. v. Kelly, 443 So.2d
1070, 1072 (Fla. 2d DCA 1984) (reversing the denial of motion to dismiss
for improper venue, but directing that on remand the trial court transfer
the action to a proper county); Gross v. Franklin, 387 So.2d 1046 (Fla. 3d
DCA 1980) (rule 1.060 authorizes court to transfer upon timely motion
challenging improper venue; because transfer, not dismissal, is favored
remedy for improper venue, motion to dismiss under rule governing
defenses is, in effect, motion to transfer).
In this case the trial court denied transfer because p
laintiff orally
requested it at the hearing, rather than prior to the hearing by written
application. Defendant raised the venue issue in the first place but did
not argue at the hearing that it was prejudiced by the oral request. Its
procedural rights to notice would not have been implicated if the court
had transferred the cause to the proper venue. As Mr. Trawick has long
since pointed out, improper venue is a plea in abatement, not a plea in
bar, and should be raised by a motion to abate improper venue or to
transfer venue to the county claimed to be proper. Henry P. Trawick Jr.,
FLORIDA PRACTICE & PROCEDURE § 10-3 (1999). If defendant had simply
designated its motion correctly as a motion to abate or transfer, the
learned trial judge might not have been led down the path of dismissal.
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Reversed.
STEVENSON , C.J., and BROWN , LUCY CHERNOW, Associate Judge, concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Leroy H. Moe , Judge; L.T. Case No. CACE 01006503(13).
Scott W. Rothstein and Melissa B. Lewis of Rothstein, Rosenfeldt,
Dolin & Pancier, P.A., Fort Lauderdale, for appellant.
Lynne S. K. Ventry of Lynne S. K. Ventry, P.A., Delray Beach, for
appellee.
Not final until disposition of timely filed motion for rehearing.
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