Valjean Corp., Inc. v. Heininger

559 So.2d 677 (1990)

VALJEAN CORPORATION, INC., Appellant,
v.
Stephanie HEININGER and Wecare Distributors, Inc. D/B/a the Oil of Mink Collection by Rose Marie, Appellees.

No. 89-2500.

District Court of Appeal of Florida, Third District.

April 3, 1990.

Boroughs, Grimm & Bennett and Robert J. Stovash and Jacqueline R. Griffin, Orlando, for appellant.

Rassner, Malove, Rassner, Kramer & Gold and Alexander Kapetanakis and Stephen Malove, South Miami, for appellees.

Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.

PER CURIAM.

The order denying the motion to change venue filed by the defendant Valjean Corporation, Inc. [Valjean] is reversed and the cause is remanded to the trial court with directions to transfer the venue of this cause to either Brevard or Hillsborough County at the plaintiff's option. We reach this result for two reasons.

First, the action below is improperly laid in Dade County and may only be brought, at the plaintiff's option, either (a) where the cause of action accrued, namely, Hillsborough County, or (b) where the defendant Valjean and a co-defendant mutually reside, namely, Brevard County. Commercial Carrier Corp. v. Mercer, 226 So.2d 270, 271 (Fla. 2d DCA 1969); §§ 47.021, 47.051, Fla. Stat. (1987).

Second, the defendant Valjean did not, as urged, waive its defense of improper venue by filing a motion to dismiss and answer (neither of which raised improper venue) as the subject motion to change venue was filed before the motion to dismiss was heard and denied by the trial court, and before the answer was filed. Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980).

Reversed and remanded.