First Int'l Realty Invest. v. Cochran

8 Citing cases

  1. Sunshine Yacht Sales v. Anslow Yacht

    669 So. 2d 342 (Fla. Dist. Ct. App. 1996)   Cited 8 times

    Id. See Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934).Maurice Gelina and Associates, Inc. v. Modular Computer Systems, Inc., 639 So.2d at 1060-61 (emphasis added); see also Frankel Group, Inc. v. BA Mortgage and International Realty, Inc., 480 So.2d 230, 231 (Fla. 2d DCA 1985) (brokerage agreement); Carter Realty Company v. Roper Bros. Land Co., 461 So.2d 1029, 1030-31 (Fla. 5th DCA 1985) (brokerage agreement); First International Realty Investment Corporation, 314 So.2d 214, 215 (Fla. 3d DCA 1975) (brokerage agreement), cert. denied, 330 So.2d 15 (Fla. 1976). As explained by Judge Frank in Ryan v. Mobile Communications Enterprises, Inc., 594 So.2d 845 (Fla. 2d DCA 1992):

  2. Ryan v. Mobile Communications Enterprises, Inc.

    594 So. 2d 845 (Fla. Dist. Ct. App. 1992)   Cited 4 times

    The only provision in this contract that could arguably subsume the place where payment was to occur is that providing for notices and communications to be mailed to MCE in Lakewood, New Jersey. Otherwise, the rule is that when a written contract fails to specify the place where payments are to be made, a cause of action for failure to pay is properly brought in the county where the plaintiff has its principal place of business. See, e.g., First International Realty Investment Corp. v. Cochran, 314 So.2d 214 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla. 1976). Again, in this instance that place would be Lakewood, New Jersey.

  3. American Thermoplastic Extrusion Co. v. Tackett Plastics, Inc.

    527 So. 2d 953 (Fla. Dist. Ct. App. 1988)   Cited 3 times

    This is an appeal from a non-final order transferring the venue of an account stated action from Dade County to Polk County. Because (a) the plaintiff American Thermoplastic Extrusion Co. is, without dispute, located in Hialeah, Florida, which is located in Dade County, and (b) there is no showing in this record where the alleged debt was to be paid, it is presumed that the debt was to be paid in Dade County, where the plaintiff/creditor resides. It therefore follows that the venue of the instant action was properly laid in Dade County because it is here that "the cause of action accrued" under Section 47.051, Florida Statutes (1987), when the defendant Tackett Plastics, Inc. allegedly refused to pay the debt in Dade County. See Croker v. Powell, 115 Fla. 733, 747, 156 So. 146, 151 (1934); Itel-Pas, Inc. v. Jones, 389 So.2d 1085, 1086 (Fla. 3d DCA 1980); Davis v. Dempsey, 343 So.2d 950, 952 (Fla. 3d DCA 1977); First Int'l Realty Inv. Corp. v. Cochran, 314 So.2d 214, 215 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla. 1976); Florida Forms, Inc. v. Barkett Computer Servs., Inc., 311 So.2d 730, 731-32 (Fla. 4th DCA 1975). The fact that the contract involved in this case was negotiated in Polk County, and that delivery of the items sold was accomplished in Polk County cannot change this result.

  4. Earl Shomber Co. v. Fla. Casino

    469 So. 2d 936 (Fla. Dist. Ct. App. 1985)   Cited 8 times
    In Earl W. Shomber Company, the defendant wrongfully withheld and refused to transfer certain escrowed funds in violation of the escrow agreement.

    This being so, the special venue rules pertaining to suits to enforce payment on a debt are inapplicable here. See, e.g., Baruch v. W.B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939); Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Crescent Beach, Inc. v. Jarvis, 435 So.2d 396 (Fla. 5th DCA 1983); Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977); First International Realty Investment Corp. v. Cochran, 314 So.2d 214 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla. 1976). These rules are "only applicable when a debtor-creditor relationship exists between defendant and plaintiff and the promise sued on is for the payment of money."

  5. Crescent Beach, Inc. v. Jarvis

    435 So. 2d 396 (Fla. Dist. Ct. App. 1983)   Cited 10 times
    Holding that the party seeking the change in venue has the burden of establishing that the initial choice of venue was improper

    See also Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). Where the contract does not expressly provide a place of payment it is implied that the debtor must seek the creditor and that payment is to be made in the county where the payee resides. See Saf-T-Clean, Inc. v. Martin Marietta Corp., 197 So.2d 8 (Fla. 1967); Baruch v. W.B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939); Excel Ins. Co. v. Brown, 406 So.2d 534 (Fla. 5th DCA 1981); Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977); First International Realty Invest. Corp. v. Cochran, 314 So.2d 214 (Fla. 3d DCA 1975), review den. 330 So.2d 15 (Fla. 1976); Gorham Constr. Co. v. Superior Fertilizer and Chemical Co., 218 So.2d 516 (Fla. 4th DCA 1969).See Pearson v. Wallace Aviation, Inc., 400 So.2d 50, 51 n. 3 (Fla. 5th DCA 1981); Motsinger v. E.B. Malone Corp., 297 So.2d 839 (Fla. 2d DCA 1974); Costner v. Costner, 263 So.2d 852 (Fla. 1st DCA 1972); Steinhardt v. Palm Beach Whitehouse No. 3, Inc., 237 So.2d 590 (Fla. 3d DCA 1970); James V. Freeman, Inc. v. Chemical Packaging Corp., 189 So.2d 410 (Fla. 1st DCA 1966).

  6. Davis v. Dempsey

    343 So. 2d 950 (Fla. Dist. Ct. App. 1977)   Cited 38 times
    In Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975, the conveyance was to a married daughter of grantors "and her children, the natural, offspring of her body,...."

    The theory is that the debtor should seek the creditor to make payment under the contract unless otherwise provided or agreed. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Duggan v. Tomlinson, 167 So.2d 2 (Fla. 1st DCA 1964), aff'd 174 So.2d 393 (Fla. 1965); M.A. Kite Co. v. Samford, 130 So.2d 99 (Fla. 1st DCA 1961); Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966); B F of Clearwater, Inc. v. Wesley Construction Co., 237 So.2d 790 (Fla. 2d DCA 1970); First International Realty Investment Corp. v. Cochran, 314 So.2d 214 (Fla. 3d DCA 1975). The defendant has the burden of pleading and proving that the venue is improper in a lawsuit, assuming that the plaintiff's complaint does not affirmatively show that the venue is lacking.

  7. CENTRAL BK, N. DADE v. PRIME LAND DEV

    335 So. 2d 581 (Fla. Dist. Ct. App. 1976)

    Our review of the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law leads us to agree with appellant's contention that venue was properly in Dade County and that the trial court should not have transferred the cause to Broward County. See Mann v. Goodyear Tire and Rubber Company, Fla. 1974, 300 So.2d 666; First International Realty Investment Corporation v. Cochran, Fla.App. 1975, 314 So.2d 214; Equilease Corporation v. Clifford, Fla.App. 1971, 251 So.2d 40; and ยงยง 47.061, 47.122, and 47.163, Fla. Stat., 2 F.S.A. Therefore, for the reason stated and upon the authorities cited, the interlocutory order appealed is reversed. Reversed.

  8. Cochran v. 1st Int'l Realty Inv. Corp.

    322 So. 2d 624 (Fla. Dist. Ct. App. 1975)

    PER CURIAM. Affirmed on authority of First International Realty Investment Corporation v. Cochran, Fla.App. 1975, 314 So.2d 214.