Bassett v. Talquin Elec. Coop., Inc.Bassett v. Talquin Elec. Coop., Inc.
Edgar C. Booth, of Hall & Booth; Marion D. Lamb, Jr.; Willie D. Lines, Tallahassee, for appellee.
BOYER, Judge.
The sole issue on this appeal relates to venue. Apрellee/Talquin Electric Cooperative, Inc. (Talquin), one of the defendants in the trial court, is a Florida corporation having a place of business in Leon County, Flоrida. Nationwide Insurance Company is a foreign corporation authorized to do business in the State of Florida and is one of the defendants in the trial court. It did not, however, participate in the pleadings nor proceedings giving rise to this controversy nor has it participated in this appeal.
Appellant/Bassett, plaintiff in the trial court, filed his complaint in Leon County seeking damages, both compensatory and punitive, for an alleged tort allegedly committed by Talquin. Although the complaint contains a total of nineteen paragraphs, numbered paragraph ten is representative of the tort alleged. For brevity we quote that paragraph only:
Notwithstanding the faсt that Defendant, Talquin Electric Cooperative, Inc., knew or should have known that the product, Amdon, contained a highly active chemical Compound or combinatiоn of chemical compounds that can remain in the soil for as many as five (5) growing seasons, and more, and that various small amounts can injure sensitive crops such as thosе which were grown by the Plaintiff, said Defendant, Talquin Electric Cooperative, Inc., during the fall of 1976 at such times and in such amounts as is known by the Defendant, Talquin Electric Cooperative, Inc., did distribute, broadcast and apply a chemical compound or combination of chemical compounds known as Amdon and/or other herbicide over, upоn, underneath and along its power lines, and across and around the Plaintiff‘s, Harry Bassett, farm along irrigation ditches, upon and in direct proximity to the crops which he was growing, and down, into and near irrigation ponds and along the area in which the natural flow of surface water would drain into irrigation ponds upon the Plaintiff‘s property and upon adjoining рroperty into irrigation ponds in complete disregard to the Plaintiff, his property, crops and the damage which said product would cause.
Talquin filed a motion to abate or transfer to Gadsden County, the location of the Bassett farm, which motion the trial court granted. It is the order granting that motion which is the subject of this appeal.
Talquin first urges that notwithstanding
Although the author of the City of St. Petersburg case recognized the often confused distinction between venue and jurisdiction (see Ringling Bros. etc. v. State of Florida, etc., 295 So. 2d 314 (Fla. 1st DCA 1974) cert. den. 303 So. 2d 644, and cases therein сited.) and spoke of the common law rule regarding local and transitory actions, the real issue in that case related to the propriety of maintaining an action against a municipality in a county (venue) other than that of its location. (See Ringling Bros. etc. v. State of Florida, etc., supra.) Talquin being a domestic corporation rather than a municipal corporatiоn, the holding in that case has no application sub judice.
Neither is the Lakeland Ideal Farm case here controlling. Without addressing the present viability of the rationale of that case in view of the сhanges in the applicable statutes over the past forty-nine years, the abolition of the distinction between law and equity and the extension of circuit court jurisdiction bеyond county lines, we find that a careful analysis of that case reveals that its reasoning is more supportive of that here urged by appellant than appellee. The author of that opinion rationalized that if the issue involved is necessarily and chiefly a question of title to land then it is a local action and may be maintained only in the jurisdiction wherein the land is situated. On the other hand, the author noted, that actions for removing logs from land or sand and gravel severed therefrom, though incidentally made to involvе the question of title, are transitory and need not be maintained in the county of the location of the land. Further, in the Lakeland Ideal Farm case, the plaintiff was complaining of past, prеsent and continuing trespass due to water being back up onto the complainant‘s lands and prayed for an injunction to have said water removed and to prevent such backing up of the water in the future. In contrast, in the action sub judice, the complainant is seeking money damages primarily for alleged damages to his crops. Title, if involved at all, is only an incidental issue. The complaint is primarily for payment of money. The judgment sought, if obtained, will not involve any interest in the land and will not operate directly upon it. This case is, therefore, more analogous to McMullen v. McMullen, 122 So. 2d 626 (Fla. 2nd DCA 1960) wherein our sister court of the Second District held that an action by vendors of real property for specific рerformance of the vendees agreement to purchase was not required to be maintained where the property was located.
Appellee‘s seсond basis for sustaining the order transferring venue from Leon County to Gasden County is the asserted applicability of
While recognizing the discretion reposed in a trial judge in matters involving venue (see McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937)) and the authоrity granted by the last cited statute to transfer a case to another venue in which it might have been brought “for the convenience of the parties or witnesses or in the interеst of justice” we nevertheless note that the only allegation in Talquin‘s motion to abate or
Finding, as we do, that no sound basis appears in the record, оr even in the briefs, for the application of
The order here appealed, transferring the subject action from the circuit court in and for Leon County, Florida to Gadsden County, Florida is
REVERSED.
McCORD, C.J., and MILLS, J., concur.