Facts
- Patti Becker sued Ann Podd in Florida circuit court, asserting tort claims for defamation, intentional infliction of emotional distress, and invasion of privacy.
- Podd’s counsel filed a notice of appearance.
- Podd then filed a motion seeking additional time to respond to the complaint, styled as a motion to abate the action until counsel completed participation in an out-of-state trial; the trial court granted the requested additional time.
- After receiving the extension, Podd filed a motion to dismiss that included an objection to venue (a motion to dismiss for improper venue).
- Becker conceded that, on the merits, venue in the chosen county was improper.
- Becker argued, however, that Podd waived any venue objection by not raising venue in either (a) the notice of appearance or (b) the earlier extension/abatement motion.
- The trial court accepted Becker’s waiver argument and denied Podd’s venue-based motion to dismiss.
- Podd filed a nonfinal appeal to the Florida Third District Court of Appeal challenging the order denying relief for improper venue.
Issues
- Does a defendant waive an objection to improper venue by filing a notice of appearance and a motion to extend time (or abate) without mentioning venue, when the defendant later raises improper venue in the first motion to dismiss?
Decision
- The Third District reversed the order denying Podd’s motion to dismiss for improper venue.
- The court held that Podd did not waive the venue objection by filing a notice of appearance or by seeking additional time to respond.
- The case was remanded with directions to grant relief based on improper venue, including transfer to a proper venue.
Legal Principles
- A notice of appearance, by itself, does not waive an objection to improper venue, just as it does not waive objections such as lack of personal jurisdiction; a “special appearance” or an express reservation is not required.
- A motion seeking an enlargement of time (including a motion to abate that functions as an extension request) does not require the defendant to raise or “reserve” a venue objection at that stage.
- Florida procedure permits extensions of time to respond to pleadings under Fla. R. Civ. P. 1.090(b).
- Under Fla. R. Civ. P. 1.140(h)(1), improper venue is waived only if it is not raised in the defendant’s first Rule 1.140 motion (such as a motion to dismiss) or in the responsive pleading; raising the venue objection in the first motion to dismiss preserves it.
- When venue is improper on the merits and the defense has not been waived, the trial court must grant relief from improper venue, typically by transferring the action to a county where venue is proper.
Conclusion
Podd v. Becker holds that a defendant does not waive an improper-venue objection merely by filing a notice of appearance or by seeking additional time to respond; waiver is controlled by Rule 1.140(h)(1), and because Podd asserted improper venue in her first motion to dismiss (and Becker conceded venue was improper), the Third District reversed and remanded for transfer to a proper venue.