Algernon Blair Contractors v. Hughes Supply, inc.
| Decision Date | 22 November 1996 |
| Docket Number | No. 96-144,96-144 |
| Citation | 684 So.2d 223 |
| Parties | 21 Fla. L. Weekly D2496 ALGERNON BLAIR CONTRACTORS, Appellant, v. HUGHES SUPPLY, INC., Appellee. Fifth District |
| Court | Florida District Court of Appeals |
R. Daniel Douglass, of Varner, Stephens, Humphries & White, Atlanta, and Edith G. Osman, of Edith G. Osman, P.A., Miami, for Appellant.
Kimberly A. Ashby, of Maguire, Voorhis & Wells, P.A., Orlando, for Appellee.
This is an appeal of a summary final judgment entered in an action on an account stated. We reverse.
On July 3, 1995, Hughes Supply, Inc. ["Hughes"] brought suit against Algernon Blair Contractors, Inc. ["Algernon"] in Orange County, Florida. The complaint sought recovery of $48,183.62, as shown on a statement attached to the complaint, plus interest, costs and attorney's fees. The statement was addressed to Algernon in Montgomery, Alabama and stated that payments were to be mailed to Hughes in Atlanta, Georgia. The statement listed 32 invoices which Hughes had apparently submitted to Algernon for materials supplied by Hughes for the construction and/or renovation of the Doral Golf Resort and Spa in Miami, Florida. The reverse of each invoice contained the following provisions concerning venue:
FLORIDA RESIDENTS. If Buyer is a resident of or located in the State of Florida, the following terms and conditions apply:
* * * * * *
Buyer waives any overall privileges and rights which it may have under Chapter 47, Florida Statutes, relating to venue, as it now exists or may hereafter be amended or construed and under any other applicable statute. Buyer and Seller agree that any legal action brought by either to ensure payment or compliance with terms and conditions of sale, shall be brought in the appropriate court in Orange County, Florida.
GEORGIA RESIDENTS. If Buyer is a resident of or is located in the State of Georgia, the following additional terms and conditions apply:
* * * * * *
In addition to the place of venue of actions as provided for in Article VI, Section XIV, of the Constitution of Georgia, Buyer and Seller agree that any action may be brought by either party in an appropriate court in Cobb County, Georgia. Buyer and Seller consent to suit in Cobb County, Georgia and waive any objections to lack of venue.
The complaint alleged that venue was proper in Orange County based on the following:
3. At all times material Defendant was a foreign corporation located in Montgomery, Alabama but doing business in Florida.
4. Venue in Orange County, Florida is proper in this cause by reason of the Terms and Conditions and statement found on the reverse of each and every invoice rendered to Defendant which states that this legal action shall be brought in Orange County.
Algernon answered the complaint on August 21, 1995. Concerning the allegations that venue lay in Orange County, Algernon's answer stated:
3. Algernon admits that it is a Georgia corporation authorized to do business and doing business in the State of Florida, and denies the remaining allegations of paragraph 3 of the Complaint.
4. Algernon denies that venue is proper in Orange County, Florida and therefore denies the allegations of paragraph 4 of the Complaint.
Hughes filed a motion for summary judgment on October 4, 1995. The motion and supporting affidavits addressed Hughes' right to recover on the account, and its right to recover attorneys fees and costs, but did not address the issue of venue.
Algernon apparently did not serve or file any affidavits in opposition to Hughes' motion until November 21, 1995, the day of the hearing on the motion. On the day of the hearing, Algernon's counsel submitted his own affidavit in which he averred:
6. The claims in this action arise out of the performance of work and supply of materials to the Doral Golf Resort & Spa construction project, located in Miami, Dade County, Florida, as established by documents attached hereto as Exhibit 2. Algernon has no office, agent or other representative in Orange County, Florida. The cause of action in this case accrued, and the property involved in this litigation, is located in Dade County, Florida.
7. Hughes served Requests for Admissions contemporaneously with its Complaint in this action, in which Hughes requested that Algernon admit that venue was proper in Orange County, Florida for this action. Algernon served its response to the Requests for Admissions contemporaneously with its Answer in this case, in which Algernon denied that venue was proper in Orange County, Florida. The issue of improper venue has been raised in this case, as confirmed by the Requests for Admission and responses, copies of which are attached hereto as Exhibit 3.
Attached to counsel's affidavit was a service of process transmittal form involving a separate case which showed that Algernon was a Georgia corporation which had a registered agent in Florida for service of process. The lower court entered a summary final judgment in favor of Hughes, stating in its order simply that "[d]efendant's objection based on improper venue and improper notice of hearing are denied."
Algernon contends that it is entitled to reversal of the summary final judgment because lack of venue was shown on the face of Hughes' complaint and Algernon's answer, although unsworn, raised material issues of fact concerning proper venue which were not dispelled by Hughes. The success of these arguments depends primarily 1 on the meaning of the following venue provision shown on the reverse of each invoice submitted to Algernon:
FLORIDA RESIDENTS. If Buyer is a resident of or located in the State of Florida, the following terms and conditions apply:
* * * * * *
Buyer waives any overall privileges and rights which it may have under Chapter 47, Florida Statutes, relating to venue, as it now exists or may hereafter be amended or construed and under any other applicable statute. Buyer and Seller agree that any legal action brought by either to ensure payment or compliance with terms and conditions of sale, shall be brought in the appropriate court in Orange County, Florida.
Since Hughes alleged in its complaint that Algernon was a foreign corporation located in Alabama, Hughes' venue allegation had to be predicated on the notion that Algernon was a Florida "resident." Hughes argues without citation...
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Legal Environmental Assistance Foundation v. Department of Environmental Protection
...to varying analysis depending on context. The same is true of the concept of corporate residence. See Algernon Blair Contractors v. Hughes Supply, Inc., 684 So.2d 223 (Fla. 5th DCA 1996). Compare Continental Ins. Co. v. Kinney Sys., Inc., 641 So.2d 195 (Fla. 4th DCA 1994)(holding that forei......
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Three Seas Corp. v. Ffe Transp. Services, 3D05-463.
...The defendant must follow the terms of the Rule. The defendant urges that its position is supported by Algernon Blair Contractors v. Hughes Supply, Inc., 684 So.2d 223 (Fla. 5th DCA 1996). We disagree, for that case is distinguishable from the present one. In Algernon Blair, the defendant's......