Soowal v. Marden 452_So._2d_625,_1984_Fla._App._LEXIS_13935,

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JERRYSOOWALand EAST MARSH NURSERY, INC., Appellants, v. JAY W.

MARDENand THE GLASSWORKS, INC., Appellees

No. 84-368

Court of Appeal of Florida, Third District

452 So. 2d 625; 1984 Fla. App. LEXIS 13935

June 5, 1984

SUBSEQUENT HISTORY: [**1] Rehearing Denied July 23, 1984.

PRIOR HISTORY: An Appeal from a non-final order from the Circuit Court for Dade County, Frederick N. Barad,Judge.

CASE SUMMARY:

PROCEDURAL POSTURE:Appellants, individual and corporation, challenged the non-final order of the Circuit

Court for Dade County (Florida) that denied their motion to dismiss the complaint of appellee trademark owners for

improper venue.

OVERVIEW: Appellee trademark owners filed an action in Dade County against appellants, individual and

corporation, for infringement of a trademark. Appellees alleged breach of a settlement agreement, fraud, and requested a

declaratory judgment. Appellants filed their motion to dismiss and alleged that venue was proper only in Broward

County and not in Dade County because neither appellant resided in or owned property in Dade County. Appellant

corporation had no place of business in Dade County, and the alleged prohibited use of the trademark took place in

Broward County. Appellees alleged that proper venue was in Dade County because they requested that appellants

deliver trademark materials to Dade County and appellants failed to do so. The court reversed and remanded and held

that violation of a settlement agreement did not constitute a cause of action for purposes of venue because appellees

sustained no injury or damage until the prohibited materials were allegedly used. The court held that all the statutory

requirements for setting venue were met in Broward County and appellants' motion should have been granted.

OUTCOME: The court reversed and remanded the decision of the trial court and held that all the statutory

requirements for venue occurred in Broward County and not in Dade County. Accordingly, appellants' motion should

have been granted because proper venue for the action was Broward County.

CORE TERMS:venue, cause of action, action accrued, settlement agreement, trademark, declaratory, domestic,resides, accrue

LexisNexis(R) Headnotes

Civil Procedure > Venue > Corporations

[HN1] See Fla. Stat. ch. 47.011 (1983).


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[HN2] See Fla. Stat. ch. 47.051 (1983).


Civil Procedure > Declaratory Judgment Actions > State Judgments > General Overview

Torts > Procedure > Commencement & Prosecution > Venue

[HN3] Since a suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the

venue statute, it is the underlying relief sought which determines venue. For venue purposes in a contract action, a cause

of action accrues where the contract is breached. For venue purposes in a tort action, a cause of action is deemed to

accrue where the act creating the right to bring an action occurred.

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

Contracts Law > Types of Contracts > Settlement Agreements

[HN4] A cause of action is some particular legal right of plaintiff against defendant, together with some definite

violation thereof which occasions loss or damage.

COUNSEL: Ruden, Barnett, McClosky, Schuster & Russell (Ft. Lauderdale) and Kevin J. O'Grady, for Appellants.

Leslie J. Lott, for Appellees.

JUDGES:Hubbart and Ferguson, JJ., and Pearson, Tillman (Ret.), Associate Judge.

OPINION BY:PEARSON

OPINION

[*626] Jerry Soowal and East Marsh Nursery, Inc., a domestic corporation, appeal a non-final order of the trial court

denying their motion to dismiss the complaint for improper venue. For reasons more fully developed herein, we reverse.

The underlying cause of action concerns an alleged breach of a settlement agreement which was entered into by the

parties on May 13, 1983 to stop appellants' alleged violation of appellees' trademark. The complaint was filed after

appellants allegedly used the disputed mark at a trade show in Hallandale, Florida on September 12, 1983. Thecomplaint, filed in Dade County, was brought in three counts: breach of the settlement agreement, fraud and declaratory

judgment. The complaint prayed for monetary damages and injunctive relief. Appellants filed their motion to dismiss,

[**2] asserting that the requisites for laying venue in Dade County were not met and that venue was more properly laid

in Broward County.

[HN1] Section 47.011, Florida Statutes (1983), states:

"Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property

in litigation is located. This section shall not apply to actions against nonresidents."

[HN2] Section 47.051, Florida Statutes (1983), states in relevant part:

"Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office

for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located . . ."

It is uncontroverted that neither defendant resides in Dade County, the corporate defendant does not maintain an office

in Dade County, and there is no property in litigation in Dade County. To be sure, the location of defendants' residence

and office is in Broward County. Therefore, venue can only be proper in Dade County if the cause of action accrued

here.

[HN3] Since a suit for declaratory relief does not of itself constitute [**3] a cause of action for the purpose of

Page 2452 So. 2d 625, *; 1984 Fla. App. LEXIS 13935, **1


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activating the venue statute, it is the underlying relief sought which determines venue. The Florida Companies v. BFA

Corp., 424 So.2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). For venue

purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises,

Inc. v. Brumlik, 430 So.2d 13 (Fla. 5th DCA 1983);Vital Industries, Inc. v. Burch, 423 So.2d 1023 (Fla. 4th DCA

1982);Windsor v. Migliaccio, supra, 399 So.2d at 66. For venue purposes in a tort action, a cause of action is deemed to

accrue where the act creating the right to bring an action occurred. E.J. Sales & Service, Inc. v. Southeast First National

Bank of Miami, 415 So.2d 906 (Fla. 3d DCA 1982); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA

1975).

Appellants assert that the cause of action, if any, accrued in Broward County where the alleged prohibited use of the

trademark took place. Appellees argue that the cause of action accrued in Dade County because the defendants' failure

to turn over all printed and other materials bearing the trademark to them [**4] in Dade County constituted a breach of

the settlement agreement. We believe, however, that the simple failure to send materials to Dade County, without more,

is not sufficient to state a cause of action. " [HN4] A cause of action is some particular legal right of plaintiff against

defendant, together with some definite violation thereof which occasions loss or damage." Luckie v. McCall

Manufacturing Co., 153 So.2d 311, 314 (Fla. 1st DCA),cert. denied, 157 So.2d 817 (Fla. 1963). Thus, while the failure

to send the materials may have been a violation of the settlement agreement, appellees sustained no injury or damage

until the prohibited materials were allegedly used. That action occurred in Broward County. Therefore, all the statutoryrequirements [*627] for setting venue were met in Broward County and appellants' motion should have been granted.

The decision of the trial court is reversed and remanded for further proceedings not inconsistent with this opinion.

Page 3452 So. 2d 625, *626; 1984 Fla. App. LEXIS 13935, **3

Documents

Soowal v. Marden 452_So._2d_625,_1984_Fla._App._LEXIS_13935,