IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ERIN GREEN , Appellant ,
v. Case No. 5D 16

- 3907 WAYNE IVEY, IN HIS OFFICIAL CAPACITY AS SHERIFF OF BREVARD COUNTY, FLORIDA , Appellee

. ________________________________/ Opinion filed March 31, 2017
Non

- F inal Appeal from the Circuit Co urt f or Seminole County , Jessica J. Recksiedler , Judge. Patricia R. Sigman, of Sigman & Sigman, P.A., Altamonte Springs, for Appellant.
Mark E. Levitt and Marc A. Sugerman, of Allen, Norton & Blue, P.A., Winter Park, for Appellee.

LAMBERT, J. Appellant, Erin Green, the plaintiff below, appeals the trial court’s nonfinal order granting the motion filed by Appellee, Wayne Ivey, in his capacity as the Sheriff of Brevard County , to transfer venue of the underlying action from Seminole County to Brevard2 County. 1 Because Appellee waived his venue objection by not timely asserting it, we

reverse. Appellant filed her complaint in Seminole County against Appellee, seeking damages pursuant to Florida’s “Whistle

- Blower Act.” 2 Appellee answered the complaint but did not contest venue . Seven weeks later, Appell ee filed an unsworn motion to transfer venue to Brevard County , asserting that venue in Seminole County is
in appropriate because Appellant’s cause of action accrued in Brevard County, that Ap p ellant and most, if not all, of the witnesses are located there , and that pursuant to the “home venue privilege, ” Appellee, as the Sheriff of Brevard County, is entitled to have the
in stant suit litigated in Brevar d County where he maintains his headquarters. 3 Appellant responded that by failing to raise the defense of improper ven ue in his answer or by a
pre - answer motion, Appellee waived his objections to venue. Following a hearing at which no evidence was presented, the trial court transferred venue “ [ b ] ecause [the] parties are located in Brevard County, Florida, [and Appellee] is a government agency with all headquarters, including [the] main headquarters, in Brevard Cou nty.” Other than actions against nonresidents, “[a]ctions 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.” § 47.011, Fla. Stat. (2015). To contest an alle ged

1 This court has jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A).

2 §§ 1 1 2.3187

– .31895 , Fla. Stat. (2015)

.
3 “ The home venue privilege provides that, absent waiver or exception, venue in a suit against the State , or an agency or subdivision of the State, is proper only i n the county in which the State , or the age ncy or subdivision of the State, maintains its principal headquarters. ” Fla. Dep’t of Child. & Fams. v. Sun

- Sentinel, Inc. , 865 So. 2d 1278, 1286 (Fla. 2004) ( citations omitted).3 improper choice of venue, Florida Rule of Civil Procedure 1.140(b) r equires that a party object to venue either in i ts first respons iv e ple ading or in a motion filed before the first responsive pleading . Mo reover, both subdivisions (b) and (h) of ru le 1.1 40 provide that the failure to raise improper venue in either the answer or the pre

- answer motion constitutes a waiver of the defense. Here, Appellee , by failing to object to venue in his answer or pre

- answer motion, waived his objection. See Tip T op Enters., Inc. v. Summit Consulting, Inc. , 905 So. 2d 201, 2 01

- 02 (Fla. 3d DCA 2005) (reversing order granting a ppellee’s motion to change

venue , reasoning that appellee waived its venue objection “by failing to affirmatively plead it in either the answer or in a pre

- ans wer motion”) . Additionally, an agency waive s the home venue privilege by failing to object to an improper venue

. State, Dep’t of Transp.

v

. Gulf

- Atl

. Constructo rs , Inc. , 727 So. 2d 305, 306 (Fla. 1st DCA 1999) (“ F ailure to raise improper venue,” including improper venue based on the home venue privilege, “ p rior to or contemporaneous with a party’s answer constitutes waiver.” (citing Fla. R. Civ. P. 1.140(h)( 1) (additional citation omitted )))

. Finally, any argument by Appellee that the order on appeal should be affirmed under the doctrine of forum non conveniens 4 based on his allegation that Appellant and
the witnesses are located in Br evard County is presently without merit as Appellee
pr ovided no evidence to support this basis for a transfer. See Resor v. Welling , 44 So

. 3d 6 5 6, 6 5 7 (Fla. 5th DCA 2010) (reversing order transferring venue based o n forum non
conveniens because Appellant did not file affidavits or evidence to meet his “burden of

4 See § 47.122, Fla. Stat. (2015) (“For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it m ight have been brought.”).4 showing substantial inconvenience or undue expense to estab lish a basis for the transfer” (citing Vero v. Vero , 659 So. 2d 1348, 1349 (Fla. 5th DCA 1995)) )

. Accordingly, we rever se the order transfer ring venue to Brevard Count y and remand with directi o ns that the trial court enter an order transferring venue back to Seminole County. REVERSED and REMANDED, with directions. BERGER and EDWARDS , JJ., concur.