464 So. 2d 645 | Fla. Dist. Ct. App. | 1985
ON MOTION FOR REHEARING GRANTED
Upon review, the appellant The Murphy Construction Co.’s motion for rehearing is granted; the previous opinion of this court, filed January 8, 1985, is hereby withdrawn and the following revised opinion is substituted therefor.
The order under review, which denies the defendant The Murphy Construction Co.’s motion to dismiss for improper venue, is reversed upon a holding that the complaint and attached exhibit filed by plaintiff Avatar Properties, Inc., f/k/a GAC Properties, Inc. and the sworn affidavit attached to the motion to dismiss filed by the defendant The Murphy Construction Co. affirmatively show that (1) no property located in Dade County, Florida is involved in the litigation, (2) the defendant’s sole office for the transaction of business is located in Palm Beach County, Florida, and (3) the alleged cause of action for defective performance under a construction contract accrued in Lee County, Florida. Under Section 47.051, Florida Statutes (1983), venue of the action is therefore improper in Dade County, Florida. See Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979); American International Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978); Gates v. Stucco Corp., 112 So.2d 36 (Fla. 3d DCA 1959).
The order under review is reversed and the cause is remanded to the trial court with directions to treat the subject motion to dismiss as a motion to transfer venue and thereafter to enter an order transferring the venue of this cause, at the option of the plaintiff, to either the Circuit Court for the 15th Judicial Circuit in and for Palm Beach County, Florida, or the Circuit Court for the 20th Judicial Circuit in and for Lee County, Florida. In the event the plaintiff fails to exercise either option for transfer or fails to make an appearance on remand, the action shall be dismissed.
Reversed and remanded.
