Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., 69--770

• Decision Date: 31 August 1970
• Docket Number: No. 69--770,69--770
• Citation: 238 So.2d 665
• Parties: MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. NATIONAL BANK OF MELBOURNE AND TRUST COMPANY, as Executor of the Estate of Bess D. Balch and Ralph E. Balch, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 665

238 So.2d 665

MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. NATIONAL BANK OF MELBOURNE AND TRUST COMPANY, as Executor of the Estate of Bess D. Balch and Ralph E. Balch, Deceased, Appellee.

No. 69--770.

District Court of Appeal of Florida, Fourth District.

Aug. 31, 1970.

Harlan Tuck, of Giles, Hedrick & Robinson, Orlando, for appellant.

Ralph Geilich, of Williams, Geilich & Potter, Melbourne, for appellee.

REED, Judge.

This is an interlocutory appeal from an order of the Circuit Court for Brevard County, Florida, dismissing a complaint for improper venue, but with leave to amend. The issue is whether or not the trial court erred in allowing the plaintiff leave to amend once the court had determined the venue was improperly laid.

The plaintiff, National Bank of Melbourne And Trust Company, filed its complaint in two counts. The first alleged that the defendant, Merrill Lynch, Pierce, Fenner & Smith, Inc., converted certain negotiable instruments which were the property of the plaintiff. The second count alleged that the defendant was negligent in handling certain negotiable instruments belonging to the plaintiff as a result of which the plaintiff allegedly sustained damages.

The defendant moved to dismiss the complaint or in the alternative to transfer the cause to Orange County, Florida, on the ground that Orange County--not Brevard County--was the proper venue under the pertinent venue statute, F.S. Section 47.051, F.S.A. The defendant supported the motion to dismiss by an affidavit of one of its officers which indicated that the defendant did not have an agent or representative in Brevard County during the time when the plaintiff's alleged cause of action accrued and that the various transactions which formed its basis occurred in Orange County. After a hearing on the motion, the trial court found that no allegations in the complaint or other evidence indicated the cause of action arose in Brevard County, Florida, and, on the basis of that finding, granted the motion to dismiss for improper venue. The order granting the motion to dismiss, however, allowed the plaintiff leave to amend its complaint.

Leave to amend a complaint is freely granted where the complaint is dismissed for failure to state a cause of action. Rule 1.190(a), F.R.C.P., 30 F.S.A. However, when a motion to dismiss for improper venue is before the court, other procedural considerations are involved.

The plaintiff is not required to plead facts in support of his selection of the venue for his suit. Inverness Coca-Cola Bottling Company v. McDaniel, Fla.1955, 78 So.2d 100. If the defendant desires to contest the propriety of the venue selected by the plaintiff, he may do so by filing a motion to dismiss on the ground of improper venue. Rule 1.140(b)(3), F.R.C.P.; Inverness Coca-Cola Bottling Company v. McDaniel, supra. A motion by the defendant to dismiss on the ground of improper venue raises issues of fact which must be resolved by an evidentiary hearing, unless the complaint shows on its face that venue is improper. A party contesting the venue selected by the plaintiff has the burden of clearly proving that the venue selected by the plaintiff is improper. Permenter v. Bank of Green...