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. 5D16-3907

WAYNE IVEY, IN HIS OFFICIAL 

CAPACITY AS SHERIFF OF BREVARD 

COUNTY, FLORIDA,

Appellee.

________________________________/

Opinion filed March 31, 2017

Non-Final Appeal from the Circuit Court 

for 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 Brevard 
2

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, Appellee filed an unsworn motion to 

transfer venue to Brevard County, asserting that venue in Seminole County is 

inappropriate because Appellant’s cause of action accrued in Brevard County, that 

Appellant 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 

instant suit litigated in Brevard County where he maintains his headquarters.3 Appellant 

responded that by failing to raise the defense of improper venue 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 County.”

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 alleged 

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

2 §§ 112.3187–.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 in the county 

in which the State, or the agency 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) requires that a party 

object to venue either in its first responsive pleading or in a motion filed before the first 

responsive pleading. Moreover, both subdivisions (b) and (h) of rule 1.140 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 Top Enters., Inc. v. Summit Consulting, Inc., 905 So. 2d 

201, 201-02 (Fla. 3d DCA 2005) (reversing order granting appellee’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-answer motion”). Additionally, an agency waives the 

home venue privilege by failing to object to an improper venue. State, Dep’t of Transp. 

v. Gulf-Atl. Constructors, Inc., 727 So. 2d 305, 306 (Fla. 1st DCA 1999) (“Failure to raise 

improper venue,” including improper venue based on the home venue privilege, “prior 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 conveniens4 based on his allegation that Appellant and 

the witnesses are located in Brevard County is presently without merit as Appellee 

provided no evidence to support this basis for a transfer. See Resor v. Welling, 44 So.

3d 656, 657 (Fla. 5th DCA 2010) (reversing order transferring venue based on 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 might have been brought.”).
4

showing substantial inconvenience or undue expense to establish a basis for the transfer” 

(citing Vero v. Vero, 659 So. 2d 1348, 1349 (Fla. 5th DCA 1995))).

Accordingly, we reverse the order transferring venue to Brevard County and 

remand with directions that the trial court enter an order transferring venue back to 

Seminole County.

REVERSED and REMANDED, with directions.

BERGER and EDWARDS, JJ., concur.