Opinion
No. 75-79.
October 10, 1975. Rehearing Denied November 4, 1975.
Appeal from the Circuit Court, Broward County, Stephen R. Booher, J.
Robert N. Fryer, Jr., of Saunders, Curtis, Ginestra Gore, Fort Lauderdale, for appellant.
Robert J. O'Toole, Fort Lauderdale, for appellee.
Appellant, whose principal and only place of business is in Escambia County, Florida, was sued by appellee in Broward County, Florida. This interlocutory appeal seeks review of an order denying appellant's motion attacking the venue as improper.
It appears from the pleadings, affidavits and exhibits before the trial court that the subject matter of this suit was $7,535.65 paid by appellee to appellant pursuant to a security agreement dated October 4, 1972, wherein appellant was to fabricate some fixtures for appellee for use in a restaurant in St. Lucie County. The agreement of October 4, 1972, which was signed by appellee, expressly provided that all payments thereunder were to be made in Escambia County. This provision controlling venue cannot be thwarted by appellee's suing for recovery upon the common count for money had and received.
The mere fact that in September 1973, the parties sought to negotiate a larger contract and failed does not detract from the fact that the money appellee seeks to have returned was paid pursuant to the agreement of October 4, 1972. Nor can appellee set the venue in Broward County by vague allegations in its complaint indicating the parties were at all times simply negotiating in hopes of reaching a meeting of the minds and an eventual contract.
Accordingly, since appellant's principal and only place of business is Escambia County, and since the agreement provided that payments were to be made there, the proper venue of this cause is Escambia County.
Reversed and remanded with directions to transfer the case to Escambia County for further proceedings.
OWEN, J., concurs.
CROSS, J., dissents without opinion.