238 So. 2d 496 | Fla. Dist. Ct. App. | 1970
Appellee Fleishaker filed a complaint in the Circuit Court of Hillsborough County against three named defendants: Maloney, as an individual;
Defendants Maloney and Property Mortgage Services moved to dismiss the complaint on the ground of improper venue and to dismiss Maloney as a party defendant on the ground that the complaint failed to allege sufficient ultimate facts to show that Maloney was liable to plaintiff. The trial court granted the motion as to Maloney
The trial court’s refusal to dismiss on the venue issue appears to have been based upon its conclusion that the movants failed to negate the right of plaintiff to maintain the suit in Hillsborough County. Accompanying the motion to dismiss filed by appellants is an affidavit indicating that Ma-loney and Property Mortgage Services, Inc., are exclusively domiciled in Broward County; that all transactions relative to the suit occurred outside Hillsborough County; that all property on which the mortgage application was made is located outside Hillsborough County; and Financial Fire & Casualty Company, as shown on the face of a power of attorney annexed to the complaint, has its principal office in Broward County.
The power of attorney was executed in July of 1968, some sixteen months before the affidavit was filed in support of the motion to dismiss. Accordingly, the power of attorney actually reflects that Financial Fire & Casualty in July 1968 had its principal , office in Broward County. Nevertheless, we feel that the affidavit together with the power of attorney constituted a prima facie showing that Financial Fire & Casualty Company was operating in Broward County at all times relevant to this case and, absent any rebuttal by plaintiff, satisfies the burden imposed upon movants. L. B. McLeod Construction Company v. State, 106 Fla. 805, 143 So. 594 (1932); Hill v. Vetter, Fla.App.1970, 231 So.2d 286.
Although it appears that Financial Fire & Casualty Company’s failure to assert a venue privilege amounts to a tacit admission that venue as to it alone would have been proper in Hillsborough County, this waiver cannot be taken to deny its codefendants their venue privilege. Even if Financial Fire & Casualty Company were doing business in Hillsborough County, the unrebutted prima facie showing that it has its principal place of business in Broward County requires reversal of that portion of the lower court’s order appealed from under the rule announced by this court in Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla.App.1969).
Reversed.
. Maloney is tlie corporate president of Property Mortgage Services, Inc.