Liberty Mutual Insurance v. Magee, 389 So. 2d 1090

Liberty Mutual Insurance v. Magee

389 So. 2d 1090 | Fla. Dist. Ct. App. | 1980

Dissenting Opinion

ANSTEAD, Judge,

dissenting:

Although I am sympathetic with the result reached by the majority, it is difficult to square that result with the provisions of Chapter 47, the venue statute, and specifically Section 47.071 thereof which provides:

Jurisdiction over navigable waters.When the territorial jurisdiction of a court extends to one bank of any navigable water, such court has jurisdiction across such navigable water from shore to shore. If the territorial jurisdiction of different courts, whether of the same county or not, extends to the opposite bank of any navigable water, such courts have concurrent jurisdiction across said navigable water from shore to shore.

The territorial jurisdiction of the Circuit Court of Palm Beach County extends to one bank of the navigable body of water involved herein. Accordingly, Section 47.071 clearly authorizes the action involved herein to be filed in Palm Beach County as well as Glades County. See Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So.2d 441 (1946). That being so, I believe the appéllants have *1092failed to demonstrate error by the trial court. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne and Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970).

Lead Opinion

PER CURIAM.

This is an appeal from the denial of a “motion to dismiss or to transfer” based upon improper venue. In a previous appeal of this same matter1 this Court held that appellants (defendants) had failed to establish proper venue by sworn proof and we reversed an order granting a change in venue. On remand, the trial court denied a further transfer of the cause after the appellants had attempted to show, by affidavit, that the cause of action accrued in Glades County, Florida.

Appellees alleged in their complaint that a boating accident occurred “on the Rim Canal approximately one mile east of Moore Haven, within the confines of the State of Florida. . . . ” Appellants’ motion to dismiss or transfer was accompanied by an affidavit of the individual defendant wherein he stated that he operated his vessel “on the Rim Canal one mile east of Moore Haven, Glades County, Florida.” We take judicial notice that one mile east of Moore Haven, Florida is wholly within the boundaries of Glades County, Florida, and the Rim Canal is bordered on both sides by lands within Glades County. Accordingly, this cause of action accrued in Glades County and appellants’ affidavit was sufficient to support the motion for transfer. See Section 47.011, Florida Statutes (1979).

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur. ANSTEAD, J., dissents with opinion.

. Magee v. Liberty Mut. Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979).