Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State

• Decision Date: 14 May 1974
• Docket Number: No. U--340,U--340
• Citation: 295 So.2d 314
• Court: Florida District Court of Appeals
• Parties: RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., a foreign corporation authorized to do business in Florida, Appellant, v. STATE of Florida et al., Appellees.

Page 314

295 So.2d 314

RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., a foreign corporation authorized to do business in Florida, Appellant, v. STATE of Florida et al., Appellees.

No. U--340.

District Court of Appeal of Florida, First District.

May 14, 1974.

Rehearing Denied June 25, 1974.

Thomas G. Pelham, of Brown & Smith, Tallahassee, for appellant.

Wilfred C. Varn, and Charles A. Francis, of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellees.

BOYER, Judge.

We have for resolution a problem involving venue. The many reported cases on the subject reveal that venue has been a vexatious source of controversy for many years. We have no thought that might, by this opinion, resolve all venue issues for posterity. However, we do hope that we might forever lay to rest some of the issues relating to permissible venue for cases in which the State, its agencies, boards and other related entities are involved.

It is imperative that we first draw a clear line of demarcation between venue and jurisdiction. Courts as well as text writers have from time to time used the terms interchangeably, thereby adding to an already existing state of confusion. (See State v. Knott, 1941, 148 Fla. 43, 3 So.2d 522; Smith v. Williams, 1948, 160 Fla. 580, 35 So.2d 844; 34 Fla.Jur., Venue, § 29)

Venue refers to the geographical area, that is, the county or district, wherein a cause may be heard or tried. It concerns the privilege of being accountable to a court in a particular location. (Deeb, Incorporated v. Board of Public Instruction, Fla.App.2nd 1967, 196 So.2d 22; Bambrick v. Bambrick, Fla.App.2nd 1964, 165 So.2d 449; Stewart v. Carr, Fla.App.2nd 1969, 218 So.2d 525) Venue is not the same as jurisdiction. (Copeland v. Copeland, S.C.Fla.1951, 53 So.2d 637; Bambrick v. Bambrick, supra, Stewart v. Carr, supra; Gay v. Ogilvie, S.C.Fla.1950, 47 So.2d 525; Henderson v. Gay, S.C.Fla.1950, 49 So.2d 325; Star Employment Service v. Florida Industrial Com'n., S.C.Fla.1960, 122 So.2d 174) The privilege of a defendant to be sued in a particular locality does not involve the question of jurisdiction. (Evans v. Evans, 141 Fla. 860, 194 So. 215) The question as to whether the State, its agencies, boards and other subentities may be sued at the seat of government or at the place of its official headquarters is a question of venue and is not one of jurisdiction over the subject matter of the litigation. (Gay v. Ogilvie, supra; Henderson v. Gay, supra; Star Employment Service v. Florida Industrial Com'n., supra)

In Gay v. Ogilvie, supra, the Supreme Court of Florida stated:

'It is settled in this jurisdiction that the question whether a state agency must be sued in the county where the seat of government is located or may be sued in another county is a question of venue and not of jurisdiction over the subject matter of the litigation. See Smith v. Williams, 160 Fla. 580, 35 So.2d 844. As is made plain by the foregoing case, there are two types or classes of cases where rules and regulations promulgated by state agencies--and let us now add, where official action taken by state agencies under existing statutes--may be brought into question in suits properly instituted for such purposes. The first is the type or class in which the primary purpose of the litigation is to obtain a judicial interpretation or declaration of a party's rights, duties or status under such rules and regulations or official action taken, where no unlawful invasion of a lawful right secured to the plaintiff by the Constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. The second is the type or class in which the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved.' (47 So.2d at page 526)

Again, in Henderson v. Gay, supra, the Supreme Court said:

'We cannot agree with the chancellor that the place where actions are to be brought against the comptroller is a matter of jurisdiction; it is one of venue, as was positively held in Gay Comptroller, v. Ogilvie, Judge, Fla., 47 So.2d 525. So our comment will be restricted to the privilege of the comptroller in this particular litigation to defend the suit at the seat of government.

'In two recent opinions of this court the line of demarkation (sic) between those cases which must be brought in Leon County, if the comptroller insists upon it, and those which may be brought elsewhere has been defined. In Smith v. Williams, Circuit Judge, 160 Fla. 580, 35 So.2d 844, Mr. Justice Sebring, speaking for the court, pointed out that when the legislature has fixed the residence of a government agency, in that case the Florida Industrial Commission, a suit primarily affecting the construction of the rules or regulations of the agency must be brought in the county of its headquarters if the defendant claims that privilege, while suits for protection against the invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, the validity of such rules and regulations being only secondary, may be entertained in the county where the invasion is threatened or has occurred.

'This pronouncement was repeated and somewhat enlarged in Gay, Comptroller, v. Ogilvie, Judge, supra. Parenthetically, it should be noted that both this case and Smith v. Williams, supra, were original proceedings for prohibition, and the court concluded that prohibition would not lie, obviously Because only venue was involved and not jurisdiction.

'Still later, in Gaulden v. Gay, Fla., 47 So.2d 580, 581, we approved a ruling of the chancellor that suits against the comptroller to test the legality of taxes could be maintained against him only in Leon County unless he waived the privilege or "unless some attempt to seize and sell property * * * has been actually initiated in the county where the suit is brought."' (49 So.2d at pages 326 and 327) (Emphasis added)

Jurisdiction is basically an expression of sovereign power; and a judgment or decree rendered without power and jurisdiction of the parties and subject matter is void. Florida's venue statutes do not confer territorial jurisdiction, but presupposes that the court has jurisdiction of the subject matter of the action as well as of the parties. Neither consent, acquiescence nor waiver can confer jurisdiction as the subject matter which is not within the power of the court to adjudicate. On the other hand venue may be changed by consent, acquiescence or waiver. Incorrect venue may be waived by the failure of a defendant to make a timely objection or by stipulation, agreement or consent. (See 34 Fla.Jur., Venue, § 3, and the many cases there cited.) A party having a venue privilege may waive same by commencing action in another locality. (Star Employment Service v. Florida Industrial Com'n, supra)

In the case sub judice, appellant, who was plaintiff below, filed a complaint seeking a declaration of the rights and responsibilities of the respective parties under a certain 'indefinite loan' agreement whereby the appellant had lent to the John and Mable Ringling Museum of Art various items of appellant's circus equipment. The appellee, State of Florida, Department of State, is a department of the executive branch of the state government, which department is headed by the Secretary of State and which had its official residence at the seat of government in Tallahassee in Leon County. Appellee, Board of Trustees of the John and Mable Ringling Museum of Art, is a board within the Department of State and its official residence is also at the seat of government. The John and Mable Ringling Museum of Art, which has possession of the circus equipment in question, is located in Sarasota County, Florida. The agreement involved in the controversy was concluded in Sarasota County and the Chairman of the Board of Trustees of the John and Mable Ringling Museum of Art has his office in Sarasota County. Demand for the return of the subject property which is involved in the above mentioned agreement was made upon said chairman in Sarasota County. The above recited facts are not in dispute, having been agreed upon by the parties in their briefs.

Based upon the foregoing state of facts the appellee filed in the Circuit Court of Leon County, where the case was pending, a motion for change of venue pursuant to Florida Statutes § 47.122, F.S.A. seeking to have the case transferred to Sarasota County, a more convenient forum; alleging that Sarasota County was a county in which the cause 'might have been brought.' That motion was granted, the Circuit Judge having found that Sarasota County was a more convenient forum and one in which the cause 'might have been brought.' Appellant took an interlocutory appeal to this Court alleging that the Circuit Court in and for Sarasota County is not a court in which the cause 'might have been brought.'

There is no question before us as to whether or not Sarasota County is in fact a more convenient forum. That issue was resolved by the trial judge after consideration of the evidence before him and has not been assigned as error nor raised as a point in this appeal.

Florida Statutes § 47.011, F.S.A., provides as follows:

'Where actions may be begun.--Actions shall be brought only in the county or justice of the peace district, called 'district' in this chapter, if the court does not have jurisdiction throughout the county, where defendant resides, or where the cause of action accrued, or where the property in litigation is located. This section shall...