Eclectic Source Network, Inc. v. Value Rent-a-Car, Inc.

PER CURIAM. The defendants, Value Rent-a-Car and Environetics, Inc., filed a motion to abate for improper venue. The trial court treated the motion to abate as a motion to change venue. The trial court entered an order changing venue from Dade County to Palm Beach County. The plaintiff appeals from this non-final order. We reverse without prejudice. Initially, the plaintiff has the right to choose venue and the burden of pleading and proving that venue is improper is on the defendant. Flick Mortgage Co. v. Microtel, Inc., 486 So.2d 697 (Fla. 4th DCA1986); Velez v. Mell D. Leonard & Assocs., Inc., 338 So.2d 896 (Fla. 2d DCA1976). The defendants filed a motion 586 to abate venue which merely recited Section 47.051, Florida Statutes (1991). Additionally, there were no affidavits presented in support of the motion. Thus, the allegations contained in the defendants’ motion were not established by sworn proof before the trial court. See Magee v. Liberty Mut. Ins. Co., 366 So.2d 827 (Fla. 4th DCA1979); Velez, 338 So.2d at 897. Accordingly, we reverse without prejudice to allow the defendants to renew the motion and present evidence as to the issues of forum non conveniens and where the cause of action accrued.