King & Akca v. Raborg, Jr.

Third District Court of Appeal
State of Florida
Opinion filed May 20, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2880
Consolidated:3D14-2928
Lower Tribunal No. 14-22949
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Timothy C. King and AKCA, Inc,
Appellants,
vs.
Christopher Raborg, Jr.,
Appellee.
Appeals from a non-final orders from the Circuit Court for Miami-Dade
County, Sara I. Zabel, Judge.
Wicker, Smith, O'Hara, McCoy & Ford and Shelley H. Leinicke, (Ft.
Lauderdale), for appellants.
Friedman & Friedman and John S. Seligman, for appellee.
Before WELLS, LAGOA and LOGUE, JJ.
WELLS, Judge.
This matter is before us on consolidation of appeals from two separate
orders denying co-defendants’, King and AKCA’s, motions to change venue. We
reverse both orders and remand for an evidentiary hearing to determine whether
AKCA has an agent or representative in Miami-Dade County, and if not whether
venue properly lies in either a county in which AKCA has an agent or
representative, in Broward County where the cause of action accrued, or in Polk
County if it is determined that Polk County is where King resides.
The facts are as follows.
Appellee, Christopher Raborg, Jr. was injured in an automobile accident on
I-95 in Broward County when his motorcycle collided with a vehicle driven by
Timothy King, an employee of AKCA. On September 4, 2014, Raborg filed an
unverified complaint alleging that King negligently operated a vehicle owned by
AKCA while performing construction work on I-95. With respect to AKCA, that
complaint alleged: (1) that AKCA “was a foreign corporation authorized to do, and
doing business in the State of Florida and doing business in Miami-Dade County,
Florida and/or had an agent or other representative in Miami-Dade County,
Florida”; and, (2) that AKCA “had entered into a contract with the State of Florida
– DOT for the removal and placement of retro reflective pavement markers and
delineators on Interstate and primary roads in the State of Florida.” The complaint
did not allege where King resided.
2
On September 9, 2014, Raborg filed a First Amended Complaint in which he
re-alleged that AKCA “was a foreign corporation authorized to do, and doing
business in the State of Florida and doing business in Miami-Dade County, Florida
and/or had an agent or other representative in Miami-Dade County, Florida,” and
that AKCA “had entered into a contract with the State of Florida – DOT for the
removal and placement of retro reflective pavement markers and delineators on
Interstate and primary roads in the State of Florida.” This time he alleged that
King was a resident of Broward County, Florida.1
King was served on September 12, 2014. On October 1st, he moved to
dismiss for improper venue claiming that he was a resident of Polk County, where
he had been served with the complaint, and thus, that the action could only be
brought in either Polk County (where he lived) or in Broward County (where the
accident occurred).2 King made no arguments in his motion as to where venue
would be appropriate with regard to AKCA which had not yet been served with the
complaint; nor did he file any supporting affidavits.
1 Neither the parties nor the docket indicate which of these two complaints was
served on either King or AKCA.
2 Because the First Amended Complaint alleged that King resided in Broward
County, and because there is no dispute that this negligence action accrued in
Broward County, that county would be an appropriate venue selection as to him.
See § 47.011, Fla. Stat. (2014) (“Actions 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.”).
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On October 29, 2014, King’s motion was heard even though AKCA had not
yet been served with the complaint. The trial court, noting that the complaint
alleged that “the corporate defendant [AKCA] allegedly does business in Miami-
Dade County,” denied King’s motion without prejudice.
That same day, October 29, 2014, AKCA was served with Raborg’s
complaint. AKCA quickly joined in a motion filed by King for reconsideration of
the order denying his venue motion and for the first time asserted its own venue
motion. AKCA’s motion first reasserted King’s claim that he was a resident of
Polk County where he was served by substitute service on his father at his
residence. It also claimed that: (1) it (AKCA) is an Ohio corporation, authorized to
do business in Florida with its principal place of business and registered agent in
Hillsborough County, Florida; (2) it has no agents, representatives, or offices in
Miami-Dade County; (3) it maintains it books, records and bank accounts in
Hillsborough County, Florida; and (4) it has no contracts, agreements or
relationships with any businesses or independent contractors in Miami-Dade
County. AKCA supported these allegations in their entirety by the affidavit of
Scott Walls, AKCA’s vice president and general manager.
Although the record before the trial court at the time these motions were
considered was that King resided in either Broward or Polk Counties and that
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AKCA had no agents or representatives in Miami-Dade County, AKCA’s venue
motion was denied.
For the following reasons, we reverse the orders on appeal and remand (1) to
provide Raborg with an opportunity to present evidence to rebut AKCA’s evidence
that it has no agents or representatives in Miami-Dade County so as to subject it
being sued here; (2) to allow the trial court to determine whether King resides in
either Broward or Polk County; and, (3) to allow the trial court, based on these
determinations, to decide where venue properly lies.
A “plaintiff has the prerogative ‘to select the venue and as long as that
selection is one of the alternatives provided by statute, the plaintiff’s selection will
not be disturbed.’” Padin v. Travis, 990 So. 2d 1255, 1256 (Fla. 4th DCA 2008)
(quoting Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659, 660 (Fla. 3d DCA
1990)). However, an action must be brought “only in the county where the
defendant resides, where the cause of action accrued, or where the property in
litigation is located.” § 47.011, Fla. Stat. (2014). Where, as here, multiple
defendants are involved, venue is proper in any county in which one of the
defendants resides. See § 47.021, Fla. Stat. (2014) (“Actions against two or more
defendants residing in different counties may be brought in any county in which
any defendant resides.”). By virtue of the complaint’s allegations that King is a
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resident of Broward County, and because the cause of action accrued in Broward
County, venue is proper in Miami-Dade County only if AKCA “resides” here.
AKCA, as Raborg alleges in his complaint, is a foreign corporation. Thus,
for venue purposes AKCA in effect “resides” in any county where it “has an agent
or other representative” and may be sued in any such county or where the cause of
action accrued or where the property at issue is located. § 47.051, Fla. Stat. (2014)
(providing that actions against foreign corporations must be “brought in a county
where such corporation has an agent or other representative, where the cause of
action accrued, or where the property in litigation is located.”). No property is
involved in this litigation, and the complaint confirms that Raborg’s cause of
action accrued in Broward County. See Drucker v. Duvall, 61 So. 3d 468, 471
(Fla. 4th DCA 2011) (“‘For purposes of venue, a tort claim is deemed to have
accrued ‘where the last event necessary to make the defendant liable for the tort
took place.’ Stated another way, a tort accrues in the county where the plaintiff
first suffers injury.’ McDaniel [Reserve Realty Holdings, LLC v. B.S.E.
Consultants, Inc., 39 So. 3d 504, 509 (Fla. 4th DCA 2010) (quoting Tucker v.
Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986)]. A tort does not accrue until
both the wrongful act and the injury have occurred. Id.”). While Raborg alleges in
his unverified complaint that AKCA “had an agent or other representative in
Miami-Dade County, Florida,” AKCA has controverted these allegations with a
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sworn statement that it has no agents or representatives in, and indeed no
connection to, Miami-Dade County. The burden has now shifted to Raborg to
adduce evidence to overcome these sworn factual representations. See Residential
Sav. Mortg., Inc. v. Keesling, 73 So. 3d 280, 283 (Fla. 2d DCA 2011) (“[W]hen a
defendant challenges venue by filing an affidavit controverting the plaintiff’s
venue allegations, the burden shifts to the plaintiff to establish the propriety of the
venue selection.” (quoting Am. Vehicle Ins. Co. v. Goheagan, 35 So. 3d 1001,
1003 (Fla. 4th DCA 2010))).
Raborg argues, and we agree, that at the time the venue motions were heard
below, the parties had not yet had sufficient time to finalize discovery relating to
venue. We therefore reverse the order denying AKCA’s venue motion and remand
to the court below to allow Raborg an opportunity to adduce evidence to show that
its venue selection is appropriate. See Kinetiks.Com, Inc. v. Sweeney, 789 So. 2d
1221, 1223 (Fla. 1st DCA 2001) (“A motion by the defendant to dismiss or transfer
venue on the ground of improper venue raises issues of fact which must be
resolved by an evidentiary hearing, unless the complaint shows on its face that
venue is improper.”).
In doing so, we note that considerations inherent in a motion to transfer
venue on convenience grounds are not at issue here. See § 47.122, Fla. Stat.
(2014) (“For the convenience of the parties or witnesses or in the interest of justice,
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any court of record may transfer any civil action to any other court of record in
which it might have been brought.”); Eggers v. Eggers, 776 So. 2d 1096, 1098
(Fla. 5th DCA 2001) (“A motion to dismiss/transfer venue due to the impropriety
of the plaintiff’s venue selection is significantly different than a motion to transfer
on forum non conveniens grounds.”). We also note that “doing business” is not the
applicable standard for determining whether venue as to AKCA is proper in
Miami-Dade County. See § 47.051, Fla. Stat. (2014) (“Actions against foreign
corporations doing business in this state shall be brought in a county where such
corporation has an agent or representative, where the cause of action accrued, or
where the property in litigation is located.”); Magical Cruise Co. Ltd. v. Lohinski,
829 So. 2d 925, 928 (Fla. 3d DCA 2002) (recognizing that “doing business” is not
the test for obtaining venue in actions against a foreign corporation, explaining that
“[i]f ‘doing business’ was sufficient to establish venue, any agent or representative
of a foreign corporation passing through a county on routine business could be
deemed to have subjected such corporation to suit in that county, even though the
foreign corporation has no other connections”); Piper Aircraft Corp. v.
Schwendemann, 564 So. 2d 546, 547 (Fla. 3d DCA 2008) (recognizing that
“agent” and “representative” are not synonymous for purposes of section 47.051);
Vellanti v. Piper Aircraft Corp., 394 So. 2d 1063, 1063 (Fla. 3d DCA 1981)
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(stating that venue is appropriate in the county where the corporation has an agent
designated to accept service of process on its behalf).
Should the trial court determine that venue as to AKCA is not proper in
Miami-Dade County, then absent an agreement of the parties, it must determine
whether King is a resident of Polk County as he claims, and if so, as between Polk
County (where King is resides), Hillsborough County (where venue purportedly is
proper as to AKCA), and Broward County (where the cause of action accrued),
which county is the proper place for this action to be tried.
Reversed and remanded.
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