County Civil Court:CIVIL PROCEDURE Ė venue Ė prior course of dealings - trial court erred in transferring venue without considering the partiesí prior course of dealings Ė record showed that parties had entered into more than seventy rental agreements establishing that venue would be in Pinellas County for any action arising out of the agreements - order reversed.Rental Service Corporation, USA, Inc. v. Guettler & Sons Construction, Inc., Appeal No. 05-0101AP-88B (Fla. 6th Cir. App. Ct. Nov. 29, 2006).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

RENTAL SERVICE CORPORATION, USA,

INC., a foreign corporation,

††††††††††† ††††††††††† Appellant,

 

 

vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††Appeal No.05-0101AP-88B

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††† UCN522005AP000101XXXXCV

 

 

GUETTLER & SONS CONSTRUCTION,

INC., a Florida corporation,

††††††††††††††††††††††† Appellee.

____________________________________/

 

Appeal from Order Transferring Venue

Pinellas County Court

Judge Myra Scott McNary

 

Robert S. Jones, II, Esquire

Daniel L. Moody, Esquire

Attorneys for Appellant

 

James T. Walker, Esquire

Robert V. Schwerer, Esquire

Attorneys for Appellee

 

 

 

ORDER AND OPINION

 

††††††††††† THIS CAUSE came before the Court on appeal, filed by Rental Service Corporation, USA., Inc. (Rental Service), from the Order on Defendantís Motion to Dismiss or Transfer Venue, entered December 5, 2005, in which the trial court transferred venue from Pinellas County to St. Lucie County, as moved for by Guettler & Sons Construction, Inc. (Guettler).Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial courtís ruling as set forth below.

††††††††††† The record shows that Rental Service Corporation filed and served a three-count Complaint against Guettler & Sons Construction for breach of oral contract, open account, and account stated.Rental Service alleged that Guettler owed it the principal sum of $ 5,251.67, for the rental of heavy construction equipment, identified as an articulating wheel loader, and for necessary repairs to the wheel loader upon its return.The face of the unsigned contract shows that Rental Service operates its business out of Kissimmee, Florida, and that Guettler was billed at an office in Fort Pierce, Florida.

After service of the Complaint, Guettler filed a Motion to Abate, Transfer or Dismiss, Due to Improper Venue arguing that St. Lucie County was the proper venue for the litigation.Guettler submitted an affidavit supporting its motion stating that it maintains its principal place of business in Fort Pierce, St. Lucie County, and that it never agreed, pursuant to contract or otherwise, that venue for disputes under the rental agreement would be litigated in Pinellas County.Guettler also stated that most of its witnesses, including the equipment operators, are located in St. Lucie County.In response, Rental Service submitted its own affidavit stating that it had leased equipment to Guettler on over 70 occasions and that each rental agreement contained the identical venue waiver provision providing that disputes would be litigated in Pinellas County.

The matter came before the trial court on November 28, 2005.After considering the affidavits and argument of counsel, the trial court entered its Order on Defendantís Motion to Dismiss or Transfer Venue, which denied Guettlerís motion to dismiss, but granted Guettlerís motion to transfer venue to St. Lucie County.[1]Before this Court, Rental Service argues that the trial court erred in transferring venue to St. Lucie County when the partiesí oral agreement and prior course of dealings established that venue was proper in Pinellas County.The trial courtís decision to transfer a case based on forum non conveniens is reviewed for an abuse of discretion.See Weg Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 253 (Fla. 3d DCA 2006).However, when reviewing the issue of whether the partiesí prior course of dealings supplemented the contract for the wheel loader, the de novo standard of review applies.See Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001).

††††††††††† In this case, the Court finds that the trial court erred in failing to consider the partiesí prior course of dealings.See e.g. Dependable Component Supply, Inc. v. Pace Electronics, Inc., 772 So.2d 582, 584-85 (Fla. 4th DCA 2000)(finding that buyerís use of the same purchase order evinced his renewed unwillingness to become bound by sellerís previous unilateral writings); Neuman v. Ferris, 432 So.2d 641, 643 (Fla. 4th DCA 1983)(finding that the partiesí prior course of dealings was evidence of fact that payment by personal check constituted approved mode of payment).Guettler does not dispute that the partiesí prior course of dealings includes more than seventy rental agreements for equipment, each identical and containing a venue provision stating that any action arising out of the rental agreement would be exclusively in Pinellas County.Under these facts, the Court finds that this cause must be remanded so that the trial court can consider whether the partiesí prior course of dealings should prevent the transfer of venue to St. Lucie County.

††††††††††† Therefore, it is,

†††††††††††

 

ORDERED AND ADJUDGED that the Order on Defendantís Motion to Dismiss or Transfer Venue is reversed and this cause is remanded for action consistent with this Order and Opinion.

††††††††††† DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of November 2006.

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† DAVID A. DEMERS

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

 

 

 

 

 

_____________________________††††††††††††††††††††††††† _____________________________

PETER RAMSBERGER††††††††††††††††††††††††††††††††††††††††† ANTHONY RONDOLINO

Circuit Judge, Appellate Division†††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Judge Myra Scott McNary

 

Robert S. Jones, II, Esquire

Daniel L. Moody, Esquire

14501 Walsingham Road

Largo, Fl33774

 

James T. Walker, Esquire

Robert V. Schwerer, Esquire

Post Office Box 3779

Ft. Pierce, FL34948-3779

 

 



 

[1] For all practical purposes, the trial courtís decision had the affect of a dismissal.The only perceivable benefit to Rental Service in the trial courtís ruling is that the costs associated with transferring the case may be less than the filing fees associated with filing a new case in St. Lucie County.