Venue Explained
“Venue refers to the geographical area, that is, the county or district, wherein a cause may be heard or tried. It concerns the privilege of being accountable to a court in a particular location.” Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314, 315 (Fla. 1st DCA 1974). This article provides a brief overview of venue as applied in Florida.
It should be noted that “[v]enue is not the same as jurisdiction.” Ringling Bros., 295 So. 2d at 315. “The privilege of a defendant to be sued in a particular locality does not involve the question of jurisdiction.” Id. See also, State Dep’t of High. Saf. & Motor Vehs. v. Scott, 583 So. 2d 785, 787 (Fla. 2d DCA 1991) (“Jurisdiction is the power to act; the authority to adjudicate the subject matter. Venue is the privilege of being accountable to a court in a particular location.”).
Venue rules are prescribed by statutes, which provide for the appropriate county to file a lawsuit. Fla. Stat. § 47.011 provides that “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”
Fla. Stat. § 47.011 is the general venue statute, which is followed by several specific venue statutes applicable in certain situations. In the case that more than one venue statute is applicable, “[a] specific venue statute takes precedence over general venue law.” Skinner v. Skinner, 678 So. 2d 512, 513 (Fla. 4th DCA 1996).
Plaintiff’s Choice
“It is well settled that venue is the plaintiff’s prerogative.” Carlson-Southeast Corp. v. Geolithic, Inc., 530 So. 2d 1069, 1073 (Fla. 1st DCA 1988). As a result, where venue is proper in more than one county, “the choice of venue in the first instance lies with the plaintiff.” Suzanne Walker & Assocs. v. Qualtec Quality Servs., 660 So. 2d 384, 385 (Fla. 5th DCA 1995). “A plaintiff has ‘the option of venue selection, and as long as that selection is one of the statutory alternatives, it should not be disturbed.’” Intercapital Funding Corp. v. Gisclair, 683 So. 2d 530, 532 (Fla. 4th DCA 1996) (quotation omitted).
When an action is filed in an improper venue, Florida Rule of Civil Procedure 1.060(b) provides that the court may transfer the action to the proper court in any county where it might have been brought in accordance with the venue statutes. See also, McClain v. Crawford, 815 So. 2d 777, 778 (Fla. 2d DCA 2002) (“[T]he remedy for improper venue is a transfer to the proper venue, not dismissal.”).
Nevertheless, “the plaintiff must allege in the complaint a sufficient basis for the selected venue.” Nicholas v. Ross, 721 So. 2d 1241, 1242 (Fla. 4th DCA 1998). “The plaintiff’s decision regarding venue is presumptively correct, and the party challenging venue has the burden to demonstrate the impropriety of plaintiff’s choice of venue.” Carlson-Southeast Corp., 530 So. 2d at 1073.
Florida Rule of Civil Procedure 1.140(b)(3) requires a defendant to challenge improper venue timely, either by motion or, if no motion is filed, by a defense raised in the responsive pleading. Importantly, an objection to venue is waived if not timely raised. See State Dep’t of High. Saf. & Motor Vehs., 583 at 787 (Fla. 2d DCA 1991) (“[V]enue, when not objected to, is appropriate in a court having jurisdiction.”).
Resident v. Nonresident Defendants
Historically, venue statutes have preferred the convenience of resident defendants and have granted only limited choices to plaintiffs. Carroll v. Carroll, 322 So. 2d 53, 56 (Fla. 1st DCA 1975). This has been referred to as the defendant’s venue privilege. Id. The privilege is only extended to Florida residents.
“The Florida general venue statute, section 47.011, Florida Statutes, expressly provides that it is not applicable to actions against nonresidents.” Holton v. Prosperity Bank of St. Augustine, 602 So. 2d 659, 662 n.2 (Fla. 5th DCA 1992). “By removing nonresidents from the scope of the legislativley [sic] created venue privilege, a nonresident over whom personal jurisdiction can be obtained consistent with constitutional considerations can, at a plaintiff’s election, be sued in any county in this state, subject only to the doctrine of forum non conveniens as codified in section 47.122, Florida Statutes.” Id.
Corporations also enjoy this venue privilege under Fla. Stat. § 47.051, which allows a domestic corporation to be sued only in the county where it has an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.
However, the privilege only applies to Florida corporations. See Puerto v. Mid-Gulf Servs., Inc., 519 So. 2d 689 (Fla. 3d DCA 1988) (“[F]oreign corporations not authorized to do business in the State of Florida, are thus without the venue privilege afforded by [Fla. Stat. §] 47.051 … and may, accordingly, be called upon to defend this transitory action in any county where jurisdiction over them has been obtained.”).
“Local” and “Transitory” Actions
“Although the venue statute gives plaintiffs the right to sue in any of three specific forums, that right is subject to the limitations of the common law distinctions between local and transitory actions.” Goedmakers v. Goedmakers, 520 So. 2d 575, 578 (Fla. 1988). “In local actions, that is, proceedings against property having a fixed location, venue lies only in the county where the subject property is located because courts have no jurisdiction in actions relating to real property located outside their territorial boundaries.” Id.
“However, the presence of real property as an issue does not make it a local action. Whether or not the action is local or transitory depends upon the underlying major question in the case.” Goedmakers, 520 So. 2d at 579. Further, “[w]here the action is personal or transitory, such as an action on a debt, contract, or other matter relating to a person or to personal property, a defendant has the privilege of being sued either in the county of his residence or in the county where the cause of action accrued.” Id. at 578.
Other Venue Issues
Where is venue proper if there are multiple defendants residing in different counties? Fla. Stat. § 47.021 provides, “[a]ctions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.”
However, “[a] party may not be aligned as a defendant for the sole purpose of establishing venue.” Bone v. Bone, 677 So. 2d 82, 83-84 (Fla. 2d DCA 1996). The residence of the defendant is determined at the time the action is brought. See Gates v. Stucco Corp., 112 So. 2d 36, 38 (Fla. 3d DCA 1959) (“The statute as to venue applies as of the time of the filing of the suit, and not as of the time of the accrual of the cause of action.”).
Where is venue proper if there are multiple causes of action which arose in different counties? In suits involving several causes of action, Fla. Stat. § 47.041 allows the plaintiff the choice of bringing them in any county in which one of the causes of action arose.
Plaintiffs may also be restricted in their choice of venue if there is a contract between the parties, agreeing to a certain location as proper venue subject to some limitations. “Florida law recognizes the rights of contracting parties to agree on the forum in which a dispute may be heard and that a valid choice of law provision may not be thwarted by including causes of action that would attempt to defeat the intent of the provision.” Intercapital Funding Corp., 683 So. 2d at 532. This does “not apply unless a contract contains a choice-of-forum clause.” Id.