Sundor Brands, Inc. v. Groves Co., Inc.

• Decision Date: 04 September 1992
• Docket Number: No. 91-2192,91-2192
• Citation: 604 So.2d 901
• Parties: 17 Fla. L. Weekly D2085 SUNDOR BRANDS, INC., a Florida corporation, Appellant, v. GROVES COMPANY, INC., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 901

604 So.2d 901

17 Fla. L. Weekly D2085

SUNDOR BRANDS, INC., a Florida corporation, Appellant, v. GROVES COMPANY, INC., etc., et al., Appellees.

No. 91-2192.

District Court of Appeal of Florida,

Fifth District.

Sept. 4, 1992.

John G. Delancett of Giles, Hedrick & Robinson, P.A., Orlando, and Peter T. Shapiro of Siller, Wilk & Mencher, New York City, for appellant.

Daniel S. Pearson, Thomas G. Schultz and Christopher N. Bellows of Holland & Knight, Miami, for appellees.

GRIFFIN, Judge.

Sundor Brands, Inc. ("Sundor"), the plaintiff below, appeals a non-final order ¹ transferring venue from Lake County, Florida to Dade County, Florida. We reverse.

Sundor is a Florida corporation with its principal place of business in Mt. Dora, Florida. The dispute in this case arises out of Sundor's purchase of the assets of Texsun Corporation ("Texsun"), a Delaware corporation whose principal place of business is in Weslaco, Texas. The transaction took place pursuant to an "Asset Purchase Agreement" (the "Agreement") dated January 27, 1987. The "seller" under the Agreement was New Texsun, Inc., a newly formed, wholly-owned subsidiary of Texas Acquisition Corporation ("New Texsun"), which itself was a wholly-owned subsidiary of DWG Corporation ("DWG"). It appears that all of these defendant corporations are related, all but one are foreign corporations and all are located in Dade County.

Part Three of the Agreement (sections 3.01-3.32), entitled "Representations and Warranties of the Seller", consisted of nineteen pages of representations and warranties which New Texsun covenanted were "true, complete and accurate in all material respects" as of the date when made and as of the date of closing. Part nine of the Agreement was entitled "Survival of Representations and Warranties; Indemnification". Section 9.01 stipulated that the seller's representations and warranties would survive the closing for a period of eighteen months. Section 9.04 of the Agreement, entitled "Seller's Indemnity", further provided:

(a) The Seller agrees to defend, indemnify and hold harmless the Buyer from, against and in respect of any and all demands, claims, actions or causes of action, losses, liabilities, damages, assessments, deficiencies, taxes, costs and expenses, including without limitation, interest, penalties and reasonable attorneys' fees and expenses, asserted against, imposed upon or paid, incurred or suffered by the Buyer:

(i) as a result of, arising from, in connection with or incident to (A) any breach or inaccuracy of any representation or warranty of the Seller in this Agreement and (B) any breach of any covenant or agreement of the Seller contained in this Agreement....

The agreement also contained a guarantee by DWG of Seller's indemnity:

The undersigned, DWG Corporation, a Delaware corporation which owns all of the outstanding and issued stock of Texas Acquisition Corporation, a Florida corporation which owns all of the outstanding and issued stock of Seller, does hereby unconditionally and irrevocably guarantee the performance of the Seller's indemnification obligations arising pursuant to Section 9 of the Asset Purchase Agreement to which this Guarantee is affixed.

In November 1990, Sundor filed an action in Lake County against the various corporate defendants and the former president of Texsun. Eleven counts of the amended, nineteen count complaint alleged that various representations and warranties contained in the Agreement had been breached, giving rise to Sundor's right to indemnification under the Agreement. ²

Defendants responded to the complaint by filing a motion to transfer venue to Dade County, asserting that venue did not lie in Lake County because the cause of action did not accrue there. In the alternative, defendants sought a transfer of venue based on the doctrine of forum non conveniens. The court ordered the transfer of venue to Dade County on the basis that Sundor's causes of action accrued in Dade County. The order was silent concerning the issue of forum non conveniens. ³

The principal issue on appeal is a narrow one. Defendants argued below and on appeal that the "gravamen" of Sundor's complaint is defendants' breach of the warranties, covenants and representations contained in the Agreement. They rely on cases holding that venue in actions for breach of warranty lies where the items warranted were delivered. See Stanfield v. Destefano, 300 So.2d 712 (Fla. 2d DCA 1974); Richard Bertram & Co. v. Barrett, 155 So.2d 409 (Fla. 1st DCA 1963). See also Whittington v. Laney, 566 So.2d 599 (Fla. 5th DCA 1990). Defendants similarly contend that a cause of action for breach of a guarantee accrues where the guarantee was made. Lamar v. Martin, 576 So.2d 920 (Fla. 2d DCA 1991). According to defendants, because the closing took place in Dade County, the cause of action accrued there.

Although we question the applicability of Sundor's case authorities to many, if not all, of the claims contained in the amended complaint, we will not address this issue because we conclude it does not control the issue of venue in this case. We agree with Sundor that its claims are for contractual indemnification and that this case falls within the rule that...