Nelson v. Jason Miller Inv., Inc.

Full title: WILLIAM NELSON, Appellant, v. JASON MILLER INVESTMENTS, INC. d/b/a JAYMAR…

Court: Florida Court of Appeals, Second District

Date published: Jul 2, 2021

No. 2D20-3152 (Fla. Dist. Ct. App. Jul. 2, 2021)

Opinion

2D20-3152

07-02-2021

WILLIAM NELSON, Appellant, v. JASON MILLER INVESTMENTS, INC. d/b/a JAYMAR TRAVEL PARK and XYZ CO. 1-3, [1] Appellees.

Bethany L. Schneider of Schneider Injury Law, Atlanta, Georgia; and James A. Robson of Glass & Robson, LLC, Atlanta, Georgia, for Appellant. Dyana L. Sisti and Katherine V. Shadwick of Reynolds Parrino Spano & Shadwick P.A., St. Petersburg, for Appellee.

ROTHSTEIN-YOUAKIM, JUDGE.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Patricia A. Muscarella, Judge.

Bethany L. Schneider of Schneider Injury Law, Atlanta, Georgia; and James A. Robson of Glass & Robson, LLC, Atlanta, Georgia, for Appellant.

Dyana L. Sisti and Katherine V. Shadwick of Reynolds Parrino Spano & Shadwick P.A., St. Petersburg, for Appellee.

ROTHSTEIN-YOUAKIM, JUDGE.

The trial court granted Jason Miller Investments, Inc.'s motion to dismiss for improper venue without conducting an evidentiary hearing and notwithstanding William Nelson's request to conduct discovery on the issue. Although the complaint in this case does not show on its face that venue is proper in Pinellas County, as is alleged, it likewise does not show on its face that venue is improper there. Accordingly, we reverse. See Interactive Retail Mgmt., Inc. v. Microsoft Online, L.P., 988 So.2d 717, 720-21 (Fla. 2d DCA 2008) ("A motion by the defendant to dismiss or transfer on the ground of improper venue raises issues of fact which must be resolved by an evidentiary hearing, unless the complaint shows on its face that venue is improper." (citing Kinetiks.Com, Inc. v. Sweeney, 789 So.2d 1221, 1223 (Fla. 1st DCA 2001))); see also Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100, 102 (Fla. 1955) ("It is of the very nature of venue that the plaintiff selects it initially, but need not plead or prove that his selection has been proper, and the burden of pleading and proving that the venue is improper, if such is the fact, is upon the defendant."). On remand, the trial court shall permit discovery only on the venue issue until that issue is decided after the evidentiary hearing. See Mkt. Traders Inst., Inc. v. Kent, 300 So.3d 377, 377 (Fla. 4th DCA 2020).

Reversed; remanded with instructions.

Opinion subject to revision prior to official publication.

LUCAS and ATKINSON, JJ., Concur.