Venue Considerations when Challenging Venue
In a recent construction dispute, Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC, 48 Fla.L.Weekly D1381b (Fla. 2d DCA 2023), a general contractor hired a subcontractor. The subcontract contained NO venue provision or specified where payments were to be due. This was important because the general contractor and subcontractor were located in different counties and the general contractor was located in the county where the project at-issue was located. A payment dispute arose, and the subcontractor sued the general contractor in the county where it was located. The general contractor moved to transfer venue to the county where it and the project were located. The trial court denied the general contractor’s motion to transfer venue.
On appeal, two relevant issues are worth discussing.
First, the subcontractor asserted six claims against the general contractor. The general contractor challenged venue only with respect to two of the claims. As a result, “[the general contractor] has waived any improper venue challenge to the remaining four counts.” Schultz Builders & Pools, supra. “When a complaint alleges multiple counts, proper venue for any count is proper venue for all counts.” Id. For this reason alone, venue was appropriate in the county where the subcontractor initiated the lawsuit.
Second, regardless of the first issue, and as it pertained to the subcontractor’s breach of contract claim, the subcontractor claimed venue was appropriate where it was located because that is where the payment was due. Hence, the subcontractor was relying on “the place of payment” rule for venue purposes.
A “place of payment” venue rule applies for the breach of contract to pay money.
If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed.
Additionally, where (as here), a contract involves the payment of money and the contract fails to specify the place of payment, payment is due where the creditor resides.
However, the place of payment venue rule only applies “when a debtor-creditor relationship exists between the plaintiff and defendant and the promise sued on is for the payment of a specified amount of money.” When the damages are unliquidated, the debtor-creditor rule does not apply. We have recognized that damages are not necessarily liquidated just because the complaint seeks a sum certain.
[The subcontractor] alleged that it had completed several stages of its work for which [the general contractor] made several installment payments of $125,000. [The subcontractor] alleged that [the general contractor] failed to remit the final payment of $100,480, with interest. These allegations present the quintessential definition of “liquidated damages.” [The subcontractor] supported its allegations with the parties’ contract and invoice records.
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Because [the subcontractor] sought liquidated damages, the place of payment rule applies; venue is proper in Sarasota County, where payment was due
Shultz Builders & Pools, supra (internal citations omitted).
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