Mercedes Homes, Inc. v. Osborne

• Decision Date: 20 December 1996
• Docket Number: No. 95-05002,95-05002
• Citation: 687 So.2d 840
• Parties: 22 Fla. L. Weekly D57 MERCEDES HOMES, INC., a Florida corporation, Appellant, v. Joe M. OSBORNE and Doris H. Osborne, Husband and Wife, Appellees.
• Court: Florida District Court of Appeals

Page 840

687 So.2d 840

22 Fla. L. Weekly D57

MERCEDES HOMES, INC., a Florida corporation, Appellant, v. Joe M. OSBORNE and Doris H. Osborne, Husband and Wife, Appellees.

No. 95-05002.

District Court of Appeal of Florida,

Second District.

Dec. 20, 1996.

Patrick F. Roche of Frese, Nash & Torpy, P.A., Melbourne, for Appellant.

Herb Fiss, Tampa, for Appellees.

SCHOONOVER, Acting Chief Judge.

The appellant, Mercedes Homes, Inc., a Florida corporation, challenges a nonfinal order which denied its motion to have the action brought against it by the appellees, Joe M. Osborne and his wife Doris H. Osborne, decided in Brevard County, Florida. We reverse.

Mr. and Mrs. Osborne and Mercedes Homes, Inc., entered into a written contract (the construction contract) whereby Mercedes Homes, Inc., agreed to construct a home for the Osbornes in Hillsborough County, Florida. The contract provided, among other things, that: "Venue for any action arising herein or related hereto shall be in Brevard County, Florida."

After a dispute arose between the parties, the Osbornes filed a three count complaint against the appellant in Hillsborough County, Florida. The first count alleged that the appellant breached its one year express warranty by failing to correct a problem caused by defectively installed ceramic tile. The second count alleged that the appellant had breached a presettlement agreement whereby the appellant was required to reinstall the ceramic tile in the Osbornes' home. The last count was based upon negligence. The Osbornes alleged that they had purchased an extended warranty on their home from Preferred Builders Warranty Corporation but the appellant negligently failed to either forward the warranty application to the company or to inform the company of the Osbornes' address. The construction contract which was in writing was not attached to the complaint.

The appellant filed a motion entitled "Motion to Abate." This motion alleged that the action arose out of and related to the construction contract and that its venue provision provided the exclusive venue for determination of the controversy. The trial court denied the appellant's motion, and this timely interlocutory appeal followed.

The appellant contends that the construction contract provides that any action arising out of, or related to, the contract be brought in Brevard County, Florida, and since all causes of action set forth in the Osbornes' complaint arose out of or were related to the contract, the case must be transferred to Brevard County.

The Osbornes do not contest the validity of the venue provision in the construction contract, but contend that they are not proceeding on that contract. They contend that even if one of their causes of action arose from or related to the construction contract, the action should proceed in Hillsborough County, pursuant to section 47.041, Florida Statutes (1993), because at least one of the causes of actions did not arise out of or relate to the...