Brodesser v. Seven Joy Investments, Ltd., 606 So. 2d 1274

Brodesser v. Seven Joy Investments, Ltd.

606 So. 2d 1274 | Fla. Dist. Ct. App. | 1992

PER CURIAM.

This is an appeal by the defendants Joseph Brodesser, Gulf Air Boats, Inc., and Steve Gordon from a non-final order denying their motion to dismiss for improper venue. The plaintiff Seven Joy Investments, Ltd. brought the underlying action below for breach of contract, fraudulent misrepresentation, and breach of a fiduciary duty arising from the sale of an ocean yacht involving the defendants, as sellers, and the plaintiff, as buyer. We conclude that the venue of this action does not lie in Dade County and, accordingly, reverse.

*1275Based on the only sworn proof adduced below, the defendant Joseph Brodesser averred in a sworn affidavit that he, as the president of the defendant Gulf Air Boats, Inc., negotiated and entered into a contract in Palm Beach County to sell the subject yacht to the plaintiff, that said yacht was delivered to the plaintiff in Palm Beach County, and that no conversations concerning this transaction took place in Dade County, Florida. The contract attached to the complaint confirms the fact that the yacht in question was to be delivered in Palm Beach County; the plaintiff offered no contrary proofs and relies solely on the unsworn allegations of its amended complaint. This being so, it is clear that the action sued upon accrued in Palm Beach, not Dade, County, Florida. See B.C. Cook & Sons Enters. v. R. & W. Fruit Co., 512 So.2d 980 (Fla. 2d DCA 1987); Soowal v. Marden, 452 So.2d 625 (Fla. 3d DCA 1984); Stanfield v. Destefano, 300 So.2d 712 (Fla. 2d DCA 1974). Moreover, it is undisputed that none of the defendants reside in Dade County and that the yacht sued upon is located in Palm Beach County. It therefore follows that the venue of this cause does not lie in Dade County, Florida, under Section 47.011, Florida Statutes (1991), which requires that an action against a Florida resident, as here, “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.”

The non-fmal order under review is reversed and the cause is remanded to the trial court with directions to transfer the cause to Palm Beach County, Florida, or some other appropriate county, at the plaintiff’s option, where the instant action may be maintained under Section 47.011, Florida Statutes (1991).

Reversed and remanded.