TIP TOP ENTERPRISES v. SUMMIT CONSULTING, 3D04-1576.
| Decision Date | 06 April 2005 |
| Docket Number | No. 3D04-1576.,3D04-1576. |
| Citation | 905 So.2d 201 |
| Parties | TIP TOP ENTERPRISES, INC., a Florida corporation d/b/a Tip Top Tree and Landscaping Service, Appellant, v. SUMMIT CONSULTING, INC., as Administrator for Florida Retail Federation Self Insurers Fund, jointly and severally, Appellee. |
| Court | Florida District Court of Appeals |
Richard F. O'Brien, III, Miami, for appellant.
Knecht & Knecht and Harold C. Knecht, Jr., Miami, for appellee.
Before GREEN, RAMIREZ, and WELLS, JJ.
Rehearing and Rehearing En Banc Denied July 13, 2005.
Tip Top Enterprises, Inc., the plaintiff below, appeals a non-final order granting Summit Consulting, Inc.'s motion to change venue, claiming that Summit waived its venue objection by failing to affirmatively plead it in either the answer or in a pre-answer motion. We agree and reverse.
Summit is the fund administrator for Florida Retail Federation Self Insurers Fund, Tip Top's worker's compensation insurer. On December 10, 2002, Tip Top, a Miami-Dade County landscaper, notified Summit that one of its employees had sustained an on-the-job injury. Summit denied the claim on the ground that the policy had lapsed for failure to pay the premium. Tip Top, alleging that venue was proper in Miami-Dade County, brought suit in the Eleventh Judicial Circuit seeking declaratory and injunctive relief and damages for breach of contract. Summit answered, generally denying a number of paragraphs, including the paragraph alleging venue in Miami-Dade County, and moved to dismiss the breach of contract count. Summit alleged only a single affirmative defense regarding cancellation of Tip Top's policy for non-payment.
Almost four months after it filed its answer and motion to dismiss, Summit filed its motion to change venue, attaching a copy of Tip Top's policy which stated that "[i]n the event litigation becomes necessary in regard to collection or any other dispute that may arise as a result of this Agreement, the member agrees that Polk County, Florida, will be the proper venue for the legal action." The motion was granted. We reverse.
Rule 1.140 provides that improper venue may be raised by motion, and if no motion is made, as a defense in a responsive pleading. Subsection (b) of the rule also provides that failure to raise a venue defense in a motion, if made, waives the defense, and if raised in a responsive pleading where no motion is made, must be alleged specifically and with particularity:
Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: ... (3) improper...
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