Soowal v. Marden 452 - So. - 2d - 625, - 1984 - Fla. - App. - LEXIS - 13935

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JERRY SOOWAL and EAST MARSH NURSERY, INC., Appellants, v. JAY W.
MARDEN and THE GLASSWORKS, INC., Appellees
No. 84-368
Court of Appeal of Florida, Third District
452 So. 2d 625; 1984 Fla. App. LEXIS 13935
June 5, 1984
SUBSEQUENT HISTORY: [**1] Rehearing Denied July 23, 1984.
PRIOR HISTORY: An Appeal from a non-final order from the Circuit Court for Dade County, Frederick N. Barad,
Judge.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellants, individual and corporation, challenged the non-final order of the Circuit
Court for Dade County (Florida) that denied their motion to dismiss the complaint of appellee trademark owners for
improper venue.
OVERVIEW: Appellee trademark owners filed an action in Dade County against appellants, individual and
corporation, for infringement of a trademark. Appellees alleged breach of a settlement agreement, fraud, and requested a
declaratory judgment. Appellants filed their motion to dismiss and alleged that venue was proper only in Broward
County and not in Dade County because neither appellant resided in or owned property in Dade County. Appellant
corporation had no place of business in Dade County, and the alleged prohibited use of the trademark took place in
Broward County. Appellees alleged that proper venue was in Dade County because they requested that appellants
deliver trademark materials to Dade County and appellants failed to do so. The court reversed and remanded and held
that violation of a settlement agreement did not constitute a cause of action for purposes of venue because appellees
sustained no injury or damage until the prohibited materials were allegedly used. The court held that all the statutory
requirements for setting venue were met in Broward County and appellants' motion should have been granted.
OUTCOME: The court reversed and remanded the decision of the trial court and held that all the statutory
requirements for venue occurred in Broward County and not in Dade County. Accordingly, appellants' motion should
have been granted because proper venue for the action was Broward County.
CORE TERMS: venue, cause of action, action accrued, settlement agreement, trademark, declaratory, domestic,
resides, accrue
LexisNexis(R) Headnotes
Civil Procedure > Venue > Corporations
[HN1] See Fla. Stat. ch. 47.011 (1983).
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452 So. 2d 625, *; 1984 Fla. App. LEXIS 13935, **1
[HN2] See Fla. Stat. ch. 47.051 (1983).

Civil Procedure > Declaratory Judgment Actions > State Judgments > General Overview
Torts > Procedure > Commencement & Prosecution > Venue
[HN3] Since a suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the
venue statute, it is the underlying relief sought which determines venue. For venue purposes in a contract action, a cause
of action accrues where the contract is breached. For venue purposes in a tort action, a cause of action is deemed to
accrue where the act creating the right to bring an action occurred.
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview
Contracts Law > Types of Contracts > Settlement Agreements
[HN4] A cause of action is some particular legal right of plaintiff against defendant, together with some definite
violation thereof which occasions loss or damage.
COUNSEL: Ruden, Barnett, McClosky, Schuster & Russell (Ft. Lauderdale) and Kevin J. O'Grady, for Appellants.
Leslie J. Lott, for Appellees.
JUDGES: Hubbart and Ferguson, JJ., and Pearson, Tillman (Ret.), Associate Judge.
OPINION BY: PEARSON
OPINION
[*626] Jerry Soowal and East Marsh Nursery, Inc., a domestic corporation, appeal a non-final order of the trial court
denying their motion to dismiss the complaint for improper venue. For reasons more fully developed herein, we reverse.
The underlying cause of action concerns an alleged breach of a settlement agreement which was entered into by the
parties on May 13, 1983 to stop appellants' alleged violation of appellees' trademark. The complaint was filed after
appellants allegedly used the disputed mark at a trade show in Hallandale, Florida on September 12, 1983. The
complaint, filed in Dade County, was brought in three counts: breach of the settlement agreement, fraud and declaratory
judgment. The complaint prayed for monetary damages and injunctive relief. Appellants filed their motion to dismiss,
[**2] asserting that the requisites for laying venue in Dade County were not met and that venue was more properly laid
in Broward County.
[HN1] Section 47.011, Florida Statutes (1983), states:
"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. This section shall not apply to actions against nonresidents."
[HN2] Section 47.051, Florida Statutes (1983), states in relevant part:

"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 . . ."
It is uncontroverted that neither defendant resides in Dade County, the corporate defendant does not maintain an office
in Dade County, and there is no property in litigation in Dade County. To be sure, the location of defendants' residence
and office is in Broward County. Therefore, venue can only be proper in Dade County if the cause of action accrued
here.
[HN3] Since a suit for declaratory relief does not of itself constitute [**3] a cause of action for the purpose of
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452 So. 2d 625, *626; 1984 Fla. App. LEXIS 13935, **3
activating the venue statute, it is the underlying relief sought which determines venue. The Florida Companies v. BFA
Corp., 424 So.2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). For venue
purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises,
Inc. v. Brumlik, 430 So.2d 13 (Fla. 5th DCA 1983); Vital Industries, Inc. v. Burch, 423 So.2d 1023 (Fla. 4th DCA
1982); Windsor v. Migliaccio, supra, 399 So.2d at 66. For venue purposes in a tort action, a cause of action is deemed to
accrue where the act creating the right to bring an action occurred. E.J. Sales & Service, Inc. v. Southeast First National
Bank of Miami, 415 So.2d 906 (Fla. 3d DCA 1982); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA
1975).
Appellants assert that the cause of action, if any, accrued in Broward County where the alleged prohibited use of the
trademark took place. Appellees argue that the cause of action accrued in Dade County because the defendants' failure
to turn over all printed and other materials bearing the trademark to them [**4] in Dade County constituted a breach of
the settlement agreement. We believe, however, that the simple failure to send materials to Dade County, without more,
is not sufficient to state a cause of action. " [HN4] A cause of action is some particular legal right of plaintiff against
defendant, together with some definite violation thereof which occasions loss or damage." Luckie v. McCall
Manufacturing Co., 153 So.2d 311, 314 (Fla. 1st DCA), cert. denied, 157 So.2d 817 (Fla. 1963). Thus, while the failure
to send the materials may have been a violation of the settlement agreement, appellees sustained no injury or damage
until the prohibited materials were allegedly used. That action occurred in Broward County. Therefore, all the statutory
requirements [*627] for setting venue were met in Broward County and appellants' motion should have been granted.
The decision of the trial court is reversed and remanded for further proceedings not inconsistent with this opinion.

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[HN2] See Fla. Stat. ch. 47.051 (1983).

[HN2] Section 47.051, Florida Statutes (1983), states in relevant part:

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