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Carter v. Fleming
Citations: 567 So. 2d 535; 1990 Fla. App. LEXIS 7392; 1990 WL 141898Docket: No. 90-752
Court: District Court of Appeal of Florida; September 27, 1990; Florida; State Appellate Court
John Carter appeals a non-final order that denied his motion to abate a lawsuit for improper venue in Escambia County. The appellate court, having jurisdiction under Rule 9.130(a)(3)(A) of the Florida Rules of Appellate Procedure, reversed the trial court's decision. David Fleming initiated the lawsuit with a three-count complaint against Carter in Escambia County, which was amended twice. Count one alleges that Fleming, as the holder of a promissory note purchased from First Trust Savings Bank, can hold Carter, the guarantor, liable for payment. Count two asserts Carter's obligation to Fleming due to Fleming's payment to First Trust as the note's guarantor. Count three claims that Carter breached his fiduciary duty as a receiver in a foreclosure action, causing Fleming damages. The trial court determined that counts one and three were improperly venued in Escambia County, as they accrued in Duval County. However, it found that count two could remain in Escambia County. Both parties agreed that the venue is proper in Escambia County under section 47.011, Florida Statutes, only if count two accrued there. The cause of action in count two relates to non-payment under a contract, which generally accrues where payment was to be made. Carter contended that the obligation accrued in Duval County, where the payment was specified in the note, while Fleming argued that he designated Escambia County as the place of payment after acquiring the note. The court analyzed the complaint and the promissory note. Count two states that the debt Carter owed Fleming was "due and payable in Escambia County," while the note indicated that payment was to be made in Duval County, unless otherwise designated by the note holder. The complaint lacked any factual allegation that the payment location had been changed from Duval County to Escambia County prior to Carter's default. Thus, the court concluded that the cause of action for count two could only have accrued in Duval County, leading to the determination that the trial court abused its discretion by allowing venue in Escambia County. The order was reversed, and the case was remanded with directions to treat the motion to abate as a motion to transfer, directing a transfer of the action to Duval County per Rule 1.060 of the Florida Rules of Civil Procedure. The opinion was concurred by Chief Judge Shivers and Judge Joanos.