Wednesday, June 24, 2009

Trial Court Decision Not to Transfer Venue Affirmed by Fourth District

In Tomac of Florida, Inc. v. Gunn’s Quality Glass & Mirror, Inc. (4D09-104), the Fourth District issued an opinion denying a petition for rehearing. The original decision was a PCA opinion.

"We start with the cardinal principle that we review orders denying motions to transfer venue for an abuse of discretion...This translates to an affirmance where reasonable minds could differ."

The Court continued:

"When a contract is silent on where payment is to be made, a presumption arises that payment is to be made where the creditor is located...While that presumption can be overcome, to do so the debtor must present sufficient evidence establishing a clear, lengthy, and uninterrupted course of conduct...In this case, the trial court found the debtor had failed to overcome the presumption. Because reasonable minds could differ on this question, we cannot say the trial court abused its discretion when it denied the motion to transfer...The defendant moved to transfer venue and filed an affidavit, which attested that the contract did not provide for the location of the payments, but that there was a “regular and systematic methodology for making payments” at the physical job site in St. Lucie County, the construction trailer in St. Lucie County, or the defendant’s principal place of business in Indian River County. As the trial court noted, the affidavit did not indicate the length of time or how many payments were made at those locations. The defendant therefore failed to overcome the presumption “that a cause of action for non-payment is properly brought in the county where the plaintiff has its principal place of business.” Sanford Auto, 988 So. 2d at 1145. Limited by the standard of review, we find no abuse of discretion in the trial court’s denial of the motion."

The Court also distinguished its decision in Treasure Coast Tractor Service, Inc. v. JAC General Construction, Inc., 34 Fla. L. Weekly D777, 2009 WL 996412 (Fla. 4th DCA Apr. 15, 2009).


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