24 Fla. L. Weekly Supp. 436a
Online Reference: FLWSUPP 2406PROCInsurance — Venue — Venue of breach of contract action against insurer that is domestic corporation is not proper in county where insurer does not maintain office and payment was not due — Motion to transfer venue is granted
JENNIFER SMITH, D.C., D/B/A HEALTH AND WELLNESS CHIROPRACTIC CENTER, P.A., a/a/o Richada Elycia Proctor, Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015 SC 012493-O. July 25, 2016. Tina Caraballo, Judge. Counsel: John Mollaghan, Windhaven Managers, Inc., Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR DEFAULT,AND DEFENDANT’S MOTION TO DISMISS ORIN THE ALTERNATIVE TO TRANSFER VENUE.
THIS CAUSE, having come before the Court, and the Court having heard arguments of both parties’ counsel, and the Court being advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Default is hereby withdrawn.
2. Defendant’s Motion to Dismiss or in the Alternative to Transfer Venue be granted.
3. Windhaven is a domestic corporation, therefore Venue is proper under Fla. Stat. 47.051 only where the cause of action arose, where the property in litigation is located, or where the corporation has an office to transact business.
4. The Court was persuaded by the Third DCA case of Sunshine State v. Munoz, that a domestic corporation must maintain the office, merely issuing policies or appointing agents is insufficient to support an allegation of venue. “(“Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic corporation.”). The appropriate test is whether venue has been lodged in the county where the domestic corporation has an office for transaction of its customary business, here, Duval County.” Sunshine State Ins. Co. v. Munoz-Upton, 127 So.3d 822, District Court of Appeal of Florida, Third District. November 27, 2013 [38 Fla. L. Weekly D2514a].
5. Furthermore, Plaintiff never pled that the services at issue were billed in Orange County.
6. Therefore, per the Magic Wok International, Inc. v. Li, 706 So. 2d 372 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D462a], as Plaintiff alleges breach of contract, that is Defendant failed to pay the sums alleged due under the contract, then “in a suit based on breach of contract, if the nature of the performance is the performance of the act of payment of money due or earned under the contract, then venue properly lies where payment was to occur.” Plaintiff never billed the Defendant in Orange County.
7. Therefore the alleged cause of action, failure to pay the amount demanded, never occurred in Orange County.
8. Consequently, Defendant properly rebutted the presumption of correctness of Plaintiff’s venue when Defendant filed an affidavit attesting that Windhaven was a domestic corporation, without an office in Orange County, and Plaintiff failed to prove the cause of action, the payment, was due in Orange County. Therefore, venue was not proper in Orange County.
9. Consequently, the Court ruled that this matter be transferred to Hillsborough County. Furthermore, per Fla. Stat. 47.091, Plaintiff will pay the filing fee required to file the new action in Hillsborough County.
