         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


KENNETH MATHEW DYAL,

             Appellant,

 v.                                                     Case No. 5D17-848

LISA FLEUR DYAL,

             Appellee.

________________________________/

Opinion filed July 28, 2017

Non-Final Appeal from the
Circuit Court for Orange
County,
Janet C. Thorpe, Judge.

Michael M. Kest, of Kest Law, PLLC, Winter
Park, for Appellant.

Eugene B. Nichols and Kyle Bedran, of
Nichols & Pina, LLLP, Jacksonville, for
Appellee.


EDWARDS, J.

      Kenneth Mathew Dyal (“Plaintiff”) appeals the trial court’s order granting Lisa Fleur

Dyal’s (“Defendant”) oral motion to transfer venue. Plaintiff argues that the trial court

erred in granting Defendant’s oral motion. We agree, reverse the order transferring venue

to St. Johns County, and remand for further proceedings consistent with this opinion.
       Plaintiff and Defendant divorced in October 2014. Plaintiff alleged in his complaint

that before, during, and after the marriage, he was employed by Walt Disney World and

received a limited number of free park-hopper admissions to Disney World parks as an

employee benefit.

       During the marriage, Plaintiff provided Defendant with a spouse pass that she

could use while they were married to utilize the limited number of free admissions

allocated to Plaintiff. Plaintiff alleged in his complaint that when they divorced, he told

Defendant not to use the spouse pass and requested that she return it to him. However,

according to the complaint, Defendant repeatedly continued to use her spouse pass, and

exhausted the limited number of free admissions, depriving Plaintiff of that valuable

employee benefit.

       Plaintiff sued Defendant for conversion and civil theft. In his complaint, he alleged

that venue was proper in Orange County and that Defendant resided in Duval County;

Defendant admitted both of these allegations in her answer. However, Defendant also

asserted that Duval County was the more appropriate venue. Defendant filed a motion

to transfer venue to Duval County to serve the convenience of the parties and the interest

of justice. Plaintiff responded to that motion, asserting, among other things, that Duval

County was an inconvenient venue.

       A hearing was held during which Defendant apparently abandoned her motion to

transfer venue to Duval County and orally moved to transfer venue to St. Johns County.

The trial court denied the written motion to transfer venue to Duval County, but granted

the oral motion, finding that venue was proper in St. Johns County. Plaintiff thereafter

filed a motion for reconsideration regarding Defendant’s oral motion. Plaintiff asserted




                                             2
that Defendant’s oral motion had not been properly noticed for hearing, thus denying

Plaintiff due process by granting relief not requested in the pleadings. Plaintiff also

asserted that Defendant waived any claim of improper venue. The court denied the

motion for reconsideration. Although there was no court reporter present, and thus no

transcript of the hearing, the trial court’s order, the appendices, and the parties’ briefs

confirm these events.

       The trial court’s order cannot be sustained as a transfer based upon an initially

improper choice of venue as the case could not properly have been commenced in St.

Johns County. Section 47.011, Florida Statutes (2016), explains where an action may be

brought: “Actions shall be brought only in the county where [1] the defendant resides, [2]

where the cause of action accrued, or [3] where the property in litigation is located.” First,

Defendant admittedly resided in Jacksonville, located in Duval County, at the inception of

the case. Second, as Plaintiff argued in his motion for reconsideration, the cause of action

accrued in Orange County because that is where he first suffered injury when Defendant

allegedly wrongfully used the spouse pass. See McDaniel Reserve Realty Holdings, LLC

v. B.S.E. Consultants, Inc., 39 So. 3d 504, 509 (Fla. 4th DCA 2010) (“[A] tort accrues in

the county where the plaintiff first suffers injury.” (citations omitted)). Third, the “location

of the property in litigation” provision does not apply here because the free admissions to

Disney and the spouse pass are personal property, not real property. See Zur v. Air

Orlando Sales, Inc., 751 So. 2d 726, 727 (Fla. 5th DCA 2000) (“The statutory provision

allowing venue where ‘the property in litigation is located,’ generally pertains to immobile

real property, as opposed to mobile, personal property.”).           Furthermore, Defendant

waived the defense of improper venue because she did not contest, but in fact agreed, in




                                               3
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


KENNETH MATHEW DYAL,

             Appellant,

 v.                                                     Case No. 5D17-848

LISA FLEUR DYAL,

             Appellee.

________________________________/

Opinion filed July 28, 2017

Non-Final Appeal from the
Circuit Court for Orange
County,
Janet C. Thorpe, Judge.

Michael M. Kest, of Kest Law, PLLC, Winter
Park, for Appellant.

Eugene B. Nichols and Kyle Bedran, of
Nichols & Pina, LLLP, Jacksonville, for
Appellee.


EDWARDS, J.

      Kenneth Mathew Dyal (“Plaintiff”) appeals the trial court’s order granting Lisa Fleur

Dyal’s (“Defendant”) oral motion to transfer venue. Plaintiff argues that the trial court

erred in granting Defendant’s oral motion. We agree, reverse the order transferring venue

to St. Johns County, and remand for further proceedings consistent with this opinion.
