Green v. Ivey

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ERIN GREEN,
Appellant,
v. Case No. 5D16-3907
WAYNE IVEY, IN HIS OFFICIAL
CAPACITY AS SHERIFF OF BREVARD
COUNTY, FLORIDA,
Appellee.
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Opinion filed March 31, 2017
Non-Final Appeal from the Circuit Court
for Seminole County,
Jessica J. Recksiedler, Judge.
Patricia R. Sigman, of Sigman & Sigman,
P.A., Altamonte Springs, for Appellant.
Mark E. Levitt and Marc A. Sugerman,
of Allen, Norton & Blue, P.A., Winter Park,
for Appellee.
LAMBERT, J.
Appellant, Erin Green, the plaintiff below, appeals the trial court’s nonfinal order
granting the motion filed by Appellee, Wayne Ivey, in his capacity as the Sheriff of Brevard
County, to transfer venue of the underlying action from Seminole County to Brevard
County. 1 Because Appellee waived his venue objection by not timely asserting it, we
reverse.
Appellant filed her complaint in Seminole County against Appellee, seeking
damages pursuant to Florida’s “Whistle-Blower Act.” 2 Appellee answered the complaint
but did not contest venue. Seven weeks later, Appellee filed an unsworn motion to
transfer venue to Brevard County, asserting that venue in Seminole County is
inappropriate because Appellant’s cause of action accrued in Brevard County, that
Appellant and most, if not all, of the witnesses are located there, and that pursuant to the
“home venue privilege,” Appellee, as the Sheriff of Brevard County, is entitled to have the
instant suit litigated in Brevard County where he maintains his headquarters. 3 Appellant
responded that by failing to raise the defense of improper venue in his answer or by a
pre-answer motion, Appellee waived his objections to venue. Following a hearing at
which no evidence was presented, the trial court transferred venue “[b]ecause [the]
parties are located in Brevard County, Florida, [and Appellee] is a government agency
with all headquarters, including [the] main headquarters, in Brevard County.”
Other than actions against nonresidents, “[a]ctions 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.” § 47.011, Fla. Stat. (2015). To contest an alleged
1 This court has jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A).
2 §§ 112.3187–.31895, Fla. Stat. (2015).
3 “The home venue privilege provides that, absent waiver or exception, venue in a
suit against the State, or an agency or subdivision of the State, is proper only in the county
in which the State, or the agency or subdivision of the State, maintains its principal
headquarters.” Fla. Dep’t of Child. & Fams. v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1286
(Fla. 2004) (citations omitted).
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improper choice of venue, Florida Rule of Civil Procedure 1.140(b) requires that a party
object to venue either in its first responsive pleading or in a motion filed before the first
responsive pleading. Moreover, both subdivisions (b) and (h) of rule 1.140 provide that
the failure to raise improper venue in either the answer or the pre-answer motion
constitutes a waiver of the defense.
Here, Appellee, by failing to object to venue in his answer or pre-answer motion,
waived his objection. See Tip Top Enters., Inc. v. Summit Consulting, Inc., 905 So. 2d
201, 201-02 (Fla. 3d DCA 2005) (reversing order granting appellee’s motion to change
venue, reasoning that appellee waived its venue objection “by failing to affirmatively plead
it in either the answer or in a pre-answer motion”). Additionally, an agency waives the
home venue privilege by failing to object to an improper venue. State, Dep’t of Transp.
v. Gulf-Atl. Constructors, Inc., 727 So. 2d 305, 306 (Fla. 1st DCA 1999) (“Failure to raise
improper venue,” including improper venue based on the home venue privilege, “prior to
or contemporaneous with a party’s answer constitutes waiver.” (citing Fla. R. Civ. P.
1.140(h)(1) (additional citation omitted))).
Finally, any argument by Appellee that the order on appeal should be affirmed
under the doctrine of forum non conveniens4 based on his allegation that Appellant and
the witnesses are located in Brevard County is presently without merit as Appellee
provided no evidence to support this basis for a transfer. See Resor v. Welling, 44 So.
3d 656, 657 (Fla. 5th DCA 2010) (reversing order transferring venue based on forum non
conveniens because Appellant did not file affidavits or evidence to meet his “burden of
4 See § 47.122, Fla. Stat. (2015) (“For the convenience of the parties or witnesses
or in the interest of justice, any court of record may transfer any civil action to any other
court of record in which it might have been brought.”).
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showing substantial inconvenience or undue expense to establish a basis for the transfer”
(citing Vero v. Vero, 659 So. 2d 1348, 1349 (Fla. 5th DCA 1995))).
Accordingly, we reverse the order transferring venue to Brevard County and
remand with directions that the trial court enter an order transferring venue back to
Seminole County.
REVERSED and REMANDED, with directions.
BERGER and EDWARDS, JJ., concur.
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