Sentry Indemnity Co. v. Angel Son

Full title: SENTRY INDEMNITY COMPANY, APPELLANT, v. ANGEL SON, INC., A FLORIDA…

Court: District Court of Appeal of Florida, Fourth District

Date published: May 7, 1976

332 So. 2d 83 (Fla. Dist. Ct. App. 1976)

Opinion

No. 75-1341.

May 7, 1976.

Appeal from the Circuit Court, Orange County, Parker Lee McDonald, J.

R. Edward Cooley, of Graham, Markel Scott, Winter Park, for appellant.

No appearance for appellees.

DOWNEY, Judge.

This interlocutory appeal involves the propriety of the trial court's order transferring this cause from Orange County to Broward County.

Appellee Angel Son, Inc., entered into a contract to construct a sidewalk for the City of Fort Lauderdale in Broward County, Florida. Pursuant to that contract Angel Son, Inc., furnished a performance bond with appellant as surety. As a condition precedent to the issuance of the bond the corporate appellee and the individual appellees executed an agreement to indemnify appellant for any loss accruing to appellant by virtue of its acting as surety.

One of the subcontractors recovered a judgment against both appellant and the corporate appellee for labor and materials furnished on the construction project, and in due course appellant satisfied the judgment. This suit for indemnity was then instituted by appellant in Orange County. Appellees moved to transfer the case to Broward County, asserting that the construction contract was entered into in Broward County, the construction project was in Broward County, and the defendant-appellees were all residents of said county. Plaintiff-appellant, a foreign corporation, countered the motion by affidavit stating that the regional office for the plaintiff is located in Orlando, Orange County, Florida. The trial court granted the motion and ordered the cause transferred to Broward County.

Essentially appellant is suing appellees for money owed as a result of the indemnity contract. The contract does not provide for the place of payment; therefore payment (if due) is to be made where the payee resides or has an established place of business. Baruch v. W.B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939); Saf-T-Clean, Inc. v. Martin-Marietta Corporation, Fla. 1967, 197 So.2d 8.

Under the rule set forth in the foregoing cases appellant's cause of action (if any) accrued in Orange County. Venue therefore lies in Orange County, and the court erred in transferring the cause to Broward County.

For the foregoing reasons, the order appealed from is reversed and the cause is remanded for further proceedings.

WALDEN, C.J., and CROSS, J., concur.