Summary
In Tropicana the contract provided that "any claim either under this contract or under the warranty hereinabove set forth, shall be brought only in the appropriate Court in Orange County, Florida."
Summary of this case from Carbone v. Value Added VacationsOpinion
No. 72-581.
December 13, 1972.
Appeal from the Circuit Court for Collier County, Harold Smith, J.
Lawrence J. Phalin, of Mateer Harbert, Orlando, for appellant.
Thomas K. Boardman, of Sapp Boardman, Immokalee, for appellees.
Appellees brought suit against Tropicana Pools, Inc., a Florida corporation, asking for damages in the amount of $569.60, which represented a deposit in payment for the construction of a swimming pool. This action was brought as result of a contract entered into between the pool company and the appellees. The contract contained the following provision:
"It is agreed by the owner that any claim either under this contract or under the warranty hereinabove set forth, shall be brought only in the appropriate Court in Orange County, Fla."
Appellant filed a motion to dismiss for lack of venue which motion was denied. The trial judge, in his order denying the motion to dismiss, said among other things:
"[D]efendant's motion to dismiss was denied based on the fact that the parties cannot contract away the court [sic] jurisdiction."
It therefore appears that the trial judge mistook venue for jurisdiction. This being a question of venue it is governed by Deeb v. Board of Public Instruction, Fla.App. 1967, 196 So.2d 22, and the court erred in denying the motion to dismiss for lack of venue.
Reversed and remanded with directions consistent with this opinion.
PIERCE, C.J., and McNULTY, J., concur.