FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Seminole County, Jessica J.
Patricia R. Sigman, of Sigman & Sigman, P.A., Altamonte
Springs, for Appellant.
E. Levitt and Marc A. Sugerman, of Allen, Norton & Blue,
P.A., Winter Park, for Appellee.
Erin Green, the plaintiff below, appeals the trial
court's nonfinal order granting the motion filed by
Appellee, Wayne Ivey, in his capacity as the Sheriff of
Brevard County, to transfer venue of the underlying action
from Seminole County to Brevard County. Because Appellee waived his venue
objection by not timely asserting it, we reverse.
filed her complaint in Seminole County against Appellee,
seeking damages pursuant to Florida's
"Whistle-Blower Act." Appellee answered the complaint but did
not contest venue. Seven weeks later, Appellee filed an
unsworn motion to transfer venue to Brevard County, asserting
that venue in Seminole County is inappropriate because
Appellant's cause of action accrued in Brevard County,
that Appellant and most, if not all, of the witnesses are
located there, and that pursuant to the "home venue
privilege, " Appellee, as the Sheriff of Brevard County,
is entitled to have the instant suit litigated in Brevard
County where he maintains his headquarters. Appellant responded that by failing to
raise the defense of improper venue in his answer or by a
pre-answer motion, Appellee waived his objections to venue.
Following a hearing at which no evidence was presented, the
trial court transferred venue "[b]ecause [the] parties
are located in Brevard County, Florida, [and Appellee] is a
government agency with all headquarters, including [the] main
headquarters, in Brevard County."
than actions against nonresidents, "[a]ctions 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." § 47.011, Fla. Stat.
(2015). To contest an alleged improper choice of venue,
Florida Rule of Civil Procedure 1.140(b) requires that a
party object to venue either in its first responsive pleading
or in a motion filed before the first responsive pleading.
Moreover, both subdivisions (b) and (h) of rule 1.140 provide
that the failure to raise improper venue in either the answer
or the pre-answer motion constitutes a waiver of the defense.
Appellee, by failing to object to venue in his answer or
pre-answer motion, waived his objection. See Tip Top
Enters., Inc. v. Summit Consulting, Inc., 905 So.2d 201,
201-02 (Fla. 3d DCA 2005) (reversing order granting
appellee's motion to change venue, reasoning that
appellee waived its venue objection "by failing to
affirmatively plead it in either the answer or in a
pre-answer motion"). Additionally, an agency waives the
home venue privilege by failing to object to an improper
venue. State, Dep't of Transp. v. Gulf-Atl.
Constructors, Inc., 727 So.2d 305, 306 (Fla. 1st DCA
1999) ("Failure to raise improper venue, "
including improper venue based on the home venue privilege,
"prior to or contemporaneous with a party's answer
constitutes waiver." (citing Fla. R. Civ. P. 1.140(h)(1)
(additional citation omitted))).
any argument by Appellee that the order on appeal should be
affirmed under the doctrine of forum non
conveniens based on his
allegation that Appellant and the witnesses are located in
Brevard County is presently without merit as Appellee
provided no evidence to support this basis for a transfer.
See Resor v. Welling, 44 So.3d 656, 657 (Fla. 5th
DCA 2010) (reversing order transferring venue based on
forum non conveniens because Appellant did not file
affidavits or evidence to meet his "burden of showing
substantial inconvenience or undue expense to establish a
basis for the transfer" (citing Vero v. Vero,
659 So.2d 1348, 1349 (Fla. 5th DCA 1995))).
we reverse the order transferring venue to Brevard County and
remand with directions that the trial court enter an order
transferring venue back to Seminole County.
and REMANDED, with directions.