       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 20, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2880
                           Consolidated:3D14-2928
                         Lower Tribunal No. 14-22949
                             ________________


                    Timothy C. King and AKCA, Inc,
                                   Appellants,

                                        vs.

                         Christopher Raborg, Jr.,
                                    Appellee.



     Appeals from a non-final orders from the Circuit Court for Miami-Dade
County, Sara I. Zabel, Judge.

     Wicker, Smith, O'Hara, McCoy & Ford and Shelley H. Leinicke, (Ft.
Lauderdale), for appellants.

     Friedman & Friedman and John S. Seligman, for appellee.


Before WELLS, LAGOA and LOGUE, JJ.

     WELLS, Judge.
      This matter is before us on consolidation of appeals from two separate

orders denying co-defendants’, King and AKCA’s, motions to change venue. We

reverse both orders and remand for an evidentiary hearing to determine whether

AKCA has an agent or representative in Miami-Dade County, and if not whether

venue properly lies in either a county in which AKCA has an agent or

representative, in Broward County where the cause of action accrued, or in Polk

County if it is determined that Polk County is where King resides.

      The facts are as follows.

      Appellee, Christopher Raborg, Jr. was injured in an automobile accident on

I-95 in Broward County when his motorcycle collided with a vehicle driven by

Timothy King, an employee of AKCA. On September 4, 2014, Raborg filed an

unverified complaint alleging that King negligently operated a vehicle owned by

AKCA while performing construction work on I-95. With respect to AKCA, that

complaint alleged: (1) that AKCA “was a foreign corporation authorized to do, and

doing business in the State of Florida and doing business in Miami-Dade County,

Florida and/or had an agent or other representative in Miami-Dade County,

Florida”; and, (2) that AKCA “had entered into a contract with the State of Florida

– DOT for the removal and placement of retro reflective pavement markers and

delineators on Interstate and primary roads in the State of Florida.” The complaint

did not allege where King resided.



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      On September 9, 2014, Raborg filed a First Amended Complaint in which he

re-alleged that AKCA “was a foreign corporation authorized to do, and doing

business in the State of Florida and doing business in Miami-Dade County, Florida

and/or had an agent or other representative in Miami-Dade County, Florida,” and

that AKCA “had entered into a contract with the State of Florida – DOT for the

removal and placement of retro reflective pavement markers and delineators on

Interstate and primary roads in the State of Florida.” This time he alleged that

King was a resident of Broward County, Florida.1

      King was served on September 12, 2014. On October 1st, he moved to

dismiss for improper venue claiming that he was a resident of Polk County, where

he had been served with the complaint, and thus, that the action could only be

brought in either Polk County (where he lived) or in Broward County (where the

accident occurred).2 King made no arguments in his motion as to where venue

would be appropriate with regard to AKCA which had not yet been served with the

complaint; nor did he file any supporting affidavits.


1 Neither the parties nor the docket indicate which of these two complaints was
served on either King or AKCA.
2  Because the First Amended Complaint alleged that King resided in Broward
County, and because there is no dispute that this negligence action accrued in
Broward County, that county would be an appropriate venue selection as to him.
See § 47.011, Fla. Stat. (2014) (“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.”).

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      On October 29, 2014, King’s motion was heard even though AKCA had not

yet been served with the complaint. The trial court, noting that the complaint

alleged that “the corporate defendant [AKCA] allegedly does business in Miami-

Dade County,” denied King’s motion without prejudice.

      That same day, October 29, 2014, AKCA was served with Raborg’s

complaint. AKCA quickly joined in a motion filed by King for reconsideration of

the order denying his venue motion and for the first time asserted its own venue

motion. AKCA’s motion first reasserted King’s claim that he was a resident of

Polk County where he was served by substitute service on his father at his

residence. It also claimed that: (1) it (AKCA) is an Ohio corporation, authorized to

do business in Florida with its principal place of business and registered agent in

Hillsborough County, Florida; (2) it has no agents, representatives, or offices in

Miami-Dade County; (3) it maintains it books, records and bank accounts in

Hillsborough County, Florida; and (4) it has no contracts, agreements or

relationships with any businesses or independent contractors in Miami-Dade

County. AKCA supported these allegations in their entirety by the affidavit of

Scott Walls, AKCA’s vice president and general manager.

      Although the record before the trial court at the time these motions were

considered was that King resided in either Broward or Polk Counties and that




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AKCA had no agents or representatives in Miami-Dade County, AKCA’s venue

motion was denied.

      For the following reasons, we reverse the orders on appeal and remand (1) to

provide Raborg with an opportunity to present evidence to rebut AKCA’s evidence

that it has no agents or representatives in Miami-Dade County so as to subject it

being sued here; (2) to allow the trial court to determine whether King resides in

either Broward or Polk County; and, (3) to allow the trial court, based on these

determinations, to decide where venue properly lies.

      A “plaintiff has the prerogative ‘to select the venue and as long as that

selection is one of the alternatives provided by statute, the plaintiff’s selection will

not be disturbed.’” Padin v. Travis, 990 So. 2d 1255, 1256 (Fla. 4th DCA 2008)

(quoting Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659, 660 (Fla. 3d DCA

1990)).   However, an action must be brought “only in the county where the

defendant resides, where the cause of action accrued, or where the property in

litigation is located.” § 47.011, Fla. Stat. (2014).       Where, as here, multiple

defendants are involved, venue is proper in any county in which one of the

defendants resides. See § 47.021, Fla. Stat. (2014) (“Actions against two or more

defendants residing in different counties may be brought in any county in which

any defendant resides.”). By virtue of the complaint’s allegations that King is a




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resident of Broward County, and because the cause of action accrued in Broward

County, venue is proper in Miami-Dade County only if AKCA “resides” here.

      AKCA, as Raborg alleges in his complaint, is a foreign corporation. Thus,

for venue purposes AKCA in effect “resides” in any county where it “has an agent

or other representative” and may be sued in any such county or where the cause of

action accrued or where the property at issue is located. § 47.051, Fla. Stat. (2014)

(providing that actions against foreign corporations must be “brought in a county

where such corporation has an agent or other representative, where the cause of

action accrued, or where the property in litigation is located.”). No property is

involved in this litigation, and the complaint confirms that Raborg’s cause of

action accrued in Broward County. See Drucker v. Duvall, 61 So. 3d 468, 471

(Fla. 4th DCA 2011) (“‘For purposes of venue, a tort claim is deemed to have

accrued ‘where the last event necessary to make the defendant liable for the tort

took place.’ Stated another way, a tort accrues in the county where the plaintiff

first suffers injury.’   McDaniel [Reserve Realty Holdings, LLC v. B.S.E.

Consultants, Inc., 39 So. 3d 504, 509 (Fla. 4th DCA 2010) (quoting Tucker v.

Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986)]. A tort does not accrue until

both the wrongful act and the injury have occurred. Id.”). While Raborg alleges in

his unverified complaint that AKCA “had an agent or other representative in

Miami-Dade County, Florida,” AKCA has controverted these allegations with a



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sworn statement that it has no agents or representatives in, and indeed no

connection to, Miami-Dade County. The burden has now shifted to Raborg to

adduce evidence to overcome these sworn factual representations. See Residential

Sav. Mortg., Inc. v. Keesling, 73 So. 3d 280, 283 (Fla. 2d DCA 2011) (“[W]hen a

defendant challenges venue by filing an affidavit controverting the plaintiff’s

venue allegations, the burden shifts to the plaintiff to establish the propriety of the

venue selection.” (quoting Am. Vehicle Ins. Co. v. Goheagan, 35 So. 3d 1001,

1003 (Fla. 4th DCA 2010))).

      Raborg argues, and we agree, that at the time the venue motions were heard

below, the parties had not yet had sufficient time to finalize discovery relating to

venue. We therefore reverse the order denying AKCA’s venue motion and remand

to the court below to allow Raborg an opportunity to adduce evidence to show that

its venue selection is appropriate. See Kinetiks.Com, Inc. v. Sweeney, 789 So. 2d

1221, 1223 (Fla. 1st DCA 2001) (“A motion by the defendant to dismiss or transfer

venue on the ground of improper venue raises issues of fact which must be

resolved by an evidentiary hearing, unless the complaint shows on its face that

venue is improper.”).

      In doing so, we note that considerations inherent in a motion to transfer

venue on convenience grounds are not at issue here. See § 47.122, Fla. Stat.

(2014) (“For the convenience of the parties or witnesses or in the interest of justice,



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any court of record may transfer any civil action to any other court of record in

which it might have been brought.”); Eggers v. Eggers, 776 So. 2d 1096, 1098

(Fla. 5th DCA 2001) (“A motion to dismiss/transfer venue due to the impropriety

of the plaintiff’s venue selection is significantly different than a motion to transfer

on forum non conveniens grounds.”). We also note that “doing business” is not the

applicable standard for determining whether venue as to AKCA is proper in

Miami-Dade County. See § 47.051, Fla. Stat. (2014) (“Actions against foreign

corporations doing business in this state shall be brought in a county where such

corporation has an agent or representative, where the cause of action accrued, or

where the property in litigation is located.”); Magical Cruise Co. Ltd. v. Lohinski,

829 So. 2d 925, 928 (Fla. 3d DCA 2002) (recognizing that “doing business” is not

the test for obtaining venue in actions against a foreign corporation, explaining that

“[i]f ‘doing business’ was sufficient to establish venue, any agent or representative

of a foreign corporation passing through a county on routine business could be

deemed to have subjected such corporation to suit in that county, even though the

foreign corporation has no other connections”); Piper Aircraft Corp. v.

Schwendemann, 564 So. 2d 546, 547 (Fla. 3d DCA 2008) (recognizing that

“agent” and “representative” are not synonymous for purposes of section 47.051);

Vellanti v. Piper Aircraft Corp., 394 So. 2d 1063, 1063 (Fla. 3d DCA 1981)




                                          8
(stating that venue is appropriate in the county where the corporation has an agent

designated to accept service of process on its behalf).

      Should the trial court determine that venue as to AKCA is not proper in

Miami-Dade County, then absent an agreement of the parties, it must determine

whether King is a resident of Polk County as he claims, and if so, as between Polk

County (where King is resides), Hillsborough County (where venue purportedly is

proper as to AKCA), and Broward County (where the cause of action accrued),

which county is the proper place for this action to be tried.

      Reversed and remanded.




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