502 So.2d 484 (Fla.App. 5 Dist. 1987), 85-1865, Publix Super Markets, Inc. v. Cheesbro Roofing, Inc.

Docket Nº:85-1865.
Citation:502 So.2d 484, 12 Fla. L. Weekly 516
Party Name:PUBLIX SUPER MARKETS, INC., Appellant, v. CHEESBRO ROOFING, INC., Appellee.
Case Date:February 09, 1987
Court:Florida Court of Appeals, Fifth District

Page 484

502 So.2d 484 (Fla.App. 5 Dist. 1987)

12 Fla. L. Weekly 516




No. 85-1865.

Florida Court of Appeals, Fifth District.

February 9, 1987

Page 485

[Copyrighted Material Omitted]

Page 486

James P. Hahn of Hahn, Breathitt & Watson, Lakeland, for appellant.

Peter B. Heebner of Van Wert, Heebner, Baggett, Bohner and Prechtl, Daytona Beach, for appellee.


This case involves venue and jurisdiction in a mechanic's lien foreclosure action.

A land owner, appellant, entered into a contract with a general contractor for the construction of a building to improve land located in Volusia County, Florida. The general contractor entered into a subcontract with a subcontractor, appellee, to construct the roof on the building. The subcontract contained the following provision:

(n) Venue: The parties agree that any action brought pursuant to this Subcontract shall be in Polk County, Florida.

The subcontractor filed, in Volusia County, Florida, a complaint against the land owner to foreclose a mechanic's lien 1 on the improved premises. The land owner moved to transfer the action to Polk County pursuant to the venue provision in appellee's subcontract with the general contractor. The trial court denied the transfer of venue and the land owner appeals. We affirm.

Every action which involves property in the litigation is not an in rem action; but every cause of action the object of which requires the court to act directly on property, or on the title to the property (the res), is an in rem action. 2 An action to foreclose a mechanic's lien, like an action to foreclose a mortgage on land, is an action seeking to judicially convert a lien interest (an equitable interest) against a land title to a legal title to the land and in such an action the result sought by the action requires the trial court to act directly on the title to the real property. It is therefore an in rem action. Condemnation actions, partition actions, ejectment actions, and quiet title actions 3 are other examples of in rem actions where the res is real property. 4 All such in rem actions, where the res is real

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property, must be brought in the county in which the land lies because the court must have direct control (geographical jurisdiction) over the res in order to exercise its jurisdiction and grant the relief sought. 5

The concept that certain actions which seek a decision operating directly on real property, or on the title thereto, are necessarily local in character and must be brought in the county where the real property lies has sometimes been labeled the "local action rule." 6 The scope and continuing viability of the local action rule has been questioned. See Davidson v. Green, 367 So.2d 1032 (Fla. 1st DCA 1979) (Smith, J., dissenting). It has been suggested that the rule be abolished. See Trawick, Fla. Prac. and Proc., § 5-5 at 49 (1985). What cannot be abolished, at least by this court, is the principle that a court does not have subject matter jurisdiction of an in rem, or quasi in rem, action involving land unless that court has geographical jurisdiction over the county where the land is located. This rule was discussed by the Florida Supreme Court in Georgia Casualty Co. v. O'Donnell, 109 Fla. 290, 147 So. 267 (1933). The court stated that:

This court is committed to the doctrine that the venue statute allowing suits to be brought in the county where the defendants reside does not confer extraterritorial jurisdiction on the courts or alter the local action rule. The...

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