County Civil Court: CIVIL PROCEDURE Venue Section 47.051, Fla. Stat. (2010), governs actions against corporations. In interlocutory appeal, Defendant domestic corporation challenged non-final order denying motion to transfer venue. Plaintiff chose to sue corporation in county where cause of action accrued for failure to pay wages. However, breach of employment contract by failure to issue paycheck occurred in Palm Beach County where corporate office is located, not in Pinellas County where employee was to receive paycheck. Order reversed and remanded with direction to transfer the case. Atlantic Legal Group, P.A., v. Feher, Appeal No. 10-000051AP-88A (Fla. 6th Cir. App. Ct. February 22, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

ATLANTIC LEGAL GROUP, P.A.;

WILLIAM RIDINGS, JR.; AND

KENT GROSS,

Appellants, Case No. 10-000051AP-88A

UCN522010AP000051XXXXCV

v.

 

 

KRISTINA E. FEHER,

Appellee.

______________________________________/

 

Opinion Filed February 22, 2011

 

Interlocutory Appeal from

Non-Final Order

Pinellas County Court

Judge Dorothy L. Vaccaro

 

Jason Dvoracek, Esq.

Attorney for Appellants

 

David Blum, Esq.

Attorney for Appellees

 

PER CURIAM.

Appellants Atlantic Legal Group, P.A.; William Ridings, Jr.; and Kent Gross appeal a non-final order denying their motion to transfer venue. We reverse with directions.

Atlantic Legal maintains its main office in Palm Beach County. A branch office was maintained in Pinellas County and Kristina Feher was employed in the Pinellas office as the managing attorney. On April 19, 2010, Ms. Feher submitted her resignation with two weeks' notice. On April 21, 2010, she was notified by Managing Partner Kent Gross that the St. Petersburg office would be closing and her employment would terminate on April 23, 2010. Ms. Feher worked through April 23, 2010. She did not receive a paycheck for the time period of April 16, 2010, through April 23, 2010. She made a demand for payment of her wages for which there was no response.

On June 15, 2010, a "Statement of Claim" was filed in Pinellas County Small Claims Court for unpaid wages. Defendants filed a motion to dismiss or transfer venue. The affidavit of Attorney Gross was submitted to the trial court for its consideration. The motion was denied on October 1, 2010. The trial court order merely states that the motion to transfer venue is denied based on Precision Software, Inc, v. Gauthier, 605 So. 2d 592 (Fla. 2d DCA 1992). This appeal by Atlantic Legal; William Ridings, Jr., Esq.; and Attorney Gross followed.

Proper Venue of the Action

Appellants argue that the cause of action in the present case accrued in Palm Beach County where the law firm's main office is located and where payroll checks for the law firm are issued. It relies upon Software Techniques, Inc. v. Kent, 959 So. 2d 347 (Fla. 2d DCA 2007), to support its argument and asserts this action should be transferred to the Palm Beach County Court.

Citing to Precision Software, Ms. Feher agrees that venue is proper in the county in which the breach of contract occurred. However, she claims that the cause of action accrued in Pinellas County because paychecks were received and payment of her wages were always made in Pinellas County.

Analysis

Section 47.051, Florida Statutes (2010), governs actions against corporations and states, "Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. . . ." In the present case, Ms. Feher chose to bring the law suit in the county in which she believed the cause of action accrued.

The failure to issue Ms. Feher's paycheck for her work as an attorney with the law firm was a breach of an employment contract. See Precision Software, 605 So. 2d at 594; Software Techniques, 959 So. 2d at 347-48. "A cause of action for breach of contract is said to have accrued in the county where the breach occurred. A breach is said to have occurred where failure of performance occurred." Precision Software, 605 So. 2d at 594 (citations omitted); see Software Techniques, 959 So. 2d at 348.

Ms. Feher's reliance on Precision Software to support her position that the breach of contract occurred in Pinellas County is misplaced. In that case, the Second District Court of Appeal stated:

Since the severance provision itself indicates that Gauthier is simply to continue receiving his salary for a period of one year following termination, we can conclude that if Precision has indeed failed to perform in this instance, it has done so by refusing to issue further payment to Gauthier from its place of business in Pinellas County.

 

Precision Software, 605 So. 2d at 594. The breach occurred when and where the employer failed to issue payment to the former employee. In Software Techniques, 959 So. 2d at 347-48, the Second District Court of Appeal reaffirmed its holding that a cause of action for breach of an employment contract by an employer accrues in the county in which there has been a failure to perform by not issuing a check for work completed:

Similarly, in this case, if STI has failed to perform, it has done so by failing to issue commission payments to Kent from its office in Orange County. Accordingly, we reverse and remand with instructions for the trial court to transfer the action to Orange County.

 

In the present case, the Appellants failed to perform when they did not issue Ms. Feher's paycheck in the corporate office in Palm Beach County. Therefore, venue is proper in Palm Beach County. The trial court's order denying the motion to transfer venue is reversed. The trial court is directed to enter an order transferring this action to the Palm Beach County Court.

Reversed and remanded with directions.

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 22nd day of February, 2011.

Original order entered on February 22, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

Copies furnished to:

 

Jason Dvoracek, Esq.

4095 Plum Tree Dr.

Lantana, FL 33462

 

David Blum, Esq.

P.O. Box 7624

Seminole, FL 33775

 

Hon. Dorothy Vaccaro