Hendry Corp. v. State Bd. of Trustees of Internal Improvement Trust Fund, 74--1039
| Decision Date | 28 May 1975 |
| Docket Number | No. 74--1039,74--1039 |
| Citation | 313 So.2d 453 |
| Parties | HENDRY CORPORATION, a Florida Corporation, Appellant, v. STATE of Florida BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, a component state agency, and Manatee County Port Authority, Appellees. |
| Court | Florida District Court of Appeals |
Dewey A. Dye, Jr., and David K. Deitrich of Dye, Cleary, Scott & Deitrich, Bradenton, for appellant.
Ross A. McVoy, Gen. Counsel, and William P. White, Jr., Tallahassee, for appellee, State of Fla. Bd. of Trustees of the Internal Improvement Fund.
Warren M. Goodrich of Goodrich & Hampton, Bradenton, for appellee, Manatee County Port Authority.
By interlocutory appeal the appellant/defendant challenges an order denying its motion for change of venue.
The appellee/plaintiff (Trustees) brought suit in Hillsborough County against the appellant whose principal place of business is in that county. Appellee sought damages and injunctive relief for trespass to land in connection with appellant's dredge and fill activities in Manatee County performed by appellant pursuant to a contract with the Manatee County Port Authority. The appellant's motion for a change of venue was denied, the trial court noting:
'. . . the abandonment by plaintiff of any claim for injunctive relief in this cause and its representation through counsel that it will not assert title to land under any creek or tidewater area in Section 12, Township 33 South, Range 17 East, Manatee County, Florida, but instead will try the suit on the basis of a transitory action for damages, including damages to any public rights in the creeks and tidewater areas regardless of ownership.'
Thereafter appellee filed its second amended complaint and in Count I alleges that appellant has filled 23.4 acres of sovereignty lands in Manatee County; appellee seeks damages for alleged destruction of the public's rights of navigation and fishing. See Fla.Stat. § 253.124. By its answer and counterclaim appellant contends said lands are swamp and overflowed lands, not sovereign in character, and seeks to quiet title to said lands. The appellee denies such allegations and claims said lands to be navigable and therefore sovereign in character. At this stage appellant filed another motion for change of venue, contending that appellee, by its allegations in Count I and its response to appellant's counterclaim, has again injected the issue of title in the case. Moreover, appellant argues that numerous witnesses from Manatee County, many of whom are local government officials, will be called to testify in the controversy and that to conduct the proceedings in Hillsborough County will be manifestly inconvenient to these witnesses and also to the court and the jury, since undoubtedly a view of the property will be involved. In opposition, the appellee contends that appellant's counterclaim is permissive only and by asserting it the appellant has acknowledged that the proper venue is Hillsborough County. Further, appellee argues that a change of venue at this stage would only result in delay, since the court in Hillsborough County has become knowledgeable of the facts and issues involved in this complex case.
Since the appellee has alleged the lands in question to be sovereignty in character, there is an issue of navigability and potentially an issue of ownership, therefore, the venue of this action is determined by the 'local action rule.' Accordingly, we reverse.
In Lakeland Ideal Farm and Drainage District v. Mitchell, Fla. 1929, 97 Fla. 890, 122 So. 516, Mitchell brought suit in Polk County, alleging his lands in Hillsborough County had been damaged by the District. The District...
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