Forms and Surfaces, Inc. v. Welbro Constructors, Inc.

• Decision Date: 03 December 1993
• Docket Number: No. 93-877,93-877
• Citation: 627 So.2d 594
• Parties: 18 Fla. L. Weekly D2542 FORMS AND SURFACES, INC., Appellant, v. WELBRO CONSTRUCTORS, INC., etc., Appellee.
• Court: Florida District Court of Appeals

Page 594

627 So.2d 594

18 Fla. L. Weekly D2542

FORMS AND SURFACES, INC., Appellant, v. WELBRO CONSTRUCTORS, INC., etc., Appellee.

No. 93-877.

District Court of Appeal of Florida Fifth District.

Dec. 3, 1993.

Brian L. Fink and Stephen J. Kolski, Jr., of Catlin, Saxon, Tuttle and Evans, P.A., Miami, for appellant.

David K. Wittek and Donald F. Wright, of Wright, Fulford, Moorhead & Wittek, P.A., Orlando, for appellee.

GRIFFIN, Judge.

Forms and Surfaces, Inc., the defendant below ("Forms and Surfaces"), appeals a non-final order denying its motion to dismiss or to transfer for improper venue. The action is pending in Orange County.

Forms and Surfaces is a tile supplier with its principal place of business in Dade County, Florida. Welbro Constructors, Inc. ("Welbro"), the plaintiff below, is a general contractor with its principal place of business in Seminole County, Florida.

On October 1, 1990, pursuant to a purchase order, Forms and Surfaces agreed to sell Welbro 12,000 square feet of Saturnia Stone for use in the Clarion Plaza Hotel in Orlando, Orange County, Florida. The purchase order called for delivery of the stone F.O.B. Miami, at Forms and Surface's own warehouse on March 1, 1991. Welbro took delivery of the stone and installed it. On October 1, 1991, Welbro notified Forms and Surfaces that "the Saturnia Stone is not performing as an acceptable floor tile or performing as represented by Forms and Surfaces" and demanded that the stone be replaced. Forms and Surfaces refused.

Welbro filed suit against Forms and Surfaces in Orange County. The stated basis for venue was that the defendant had contracted to supply materials "for incorporation into improvements to the Clarion Hotel, located in Orlando, Orange County, Florida." The complaint sought damages for (1) breach of contract, (2) breach of an implied warranty of fitness for a particular purpose, (3) breach of the express warranty and (4) common law indemnity. ¹

On appeal, Welbro asserts that the trial judge properly denied the motion to transfer venue because the action for breach of contract accrued in Orange County ² where the "actual failure of the product occurred". Forms and Surfaces maintains that venue in Orange County is not proper because the place of the breach had to be Dade County, where the allegedly defective goods were delivered.

The general rule is that a cause of action for breach of contract "accrues," for venue purposes, where the alleged breach occurred. Jacobs & Goodman, P.A. v. McLin, Burnsed, Morrison, Johnson & Robuck, P.A., 582 So.2d 98 (Fla. 5th DCA 1991); Carter Realty Co. v. Roper Bros. Land Co., 461 So.2d 1029 (Fla. 5th DCA 1985); Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). The breach of contract alleged in this case was that Forms and Surfaces supplied Welbro with defective or nonconforming stone. An action for such a breach accrues, for venue purposes, where the allegedly defective or nonconforming goods were delivered. ³ Whittington v. Laney, 566 So.2d 599 (Fla. 5th DCA 1990); Stanfield v. DeStefano, 300 So.2d 712 ...