Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SCHULTZ BUILDERS & POOLS, INC., Appellant, v. ICON WELDING & FABRICATION, LLC, Appellee. No. 2D22-4138 July 12, 2023 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Sarasota County; Stephen M. Walker, Judge. Robert S. Jones, II and Heath C. Murphy of Jones Law Group, St. Petersburg, for Appellant. Benjamin A. Christian of mctlaw (withdrew after briefing), Sarasota, for Appellee. LaROSE, Judge. Schultz Builders & Pools, Inc., appeals the trial court's "Order Denying Defendant's Motion to Dismiss or to Transfer Venue for Failure to Join an Indispensable Party." We dismiss the appeal as to that portion of the order concerning the alleged failure to join an indispensable party; that portion is nonfinal and nonappealable. As to the part of the order denying Schultz's motion to transfer venue, we have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(A), and affirm. Background Schultz was the general contractor for a project to fabricate and install exterior stairs at a Pinellas County apartment complex. Schultz is located in Pinellas County. Schultz subcontracted Icon Welding & Fabrication, LLC, to do the work. Icon is based in Sarasota County. The parties' agreement was silent as to venue or, for that matter, where payments were due. The parties' relationship started off well enough. Icon did the work and Schultz submitted quarterly payments to Icon's Sarasota office. However, before the project's completion, a building inspector declared the stairs not up to code. Not surprisingly, the parties' rapport soured. Schultz refused to make the final payment. Icon sued Schultz in Sarasota County.1 Schultz filed a motion to dismiss or, in the alternative, to transfer venue. Schultz contended that Icon failed to join an indispensable party. Schultz noted that Icon sought a declaratory judgment that Icon could record a lien against real property located in Pinellas County. Yet, Icon did not sue the party directly affected by such a lien, the owner of the apartment complex. Schultz also sought to change venue to Pinellas County, arguing that venue was more suitable there because that is where Schultz is located and also where "the real property in litigation" is located. Further, Schultz maintained that the debtor-creditor venue rule did not apply; venue was proper in Pinellas County because Icon sought unliquidated damages. 1 Icon alleged counts for breach of contract, declaratory judgment, unjust enrichment, account stated, open account, and a violation of section 713.346, Florida Statutes (2021) ("Payment on construction contracts."). 2 Schultz also asserted that the local action rule required transfer because Icon sought a declaratory judgment concerning Icon's ability to record a lien on Pinellas County property. Schultz fretted about possible "inconsistent judgments or rulings," and that action by the Sarasota County trial court would "cloud title" to the property. After a hearing, the trial court entered an unelaborated order denying the motion to dismiss and to transfer venue. Analysis We arrange our analysis according to the two parts of the order on appeal. We start with the low-hanging fruit, the order denying Schultz's motion to dismiss for failure to join an indispensable party. After that, we evaluate the venue issue. I. The Nonfinal Nonappealable Order Denying Schultz's Motion to Dismiss for Failure to Join an Indispensable Party The portion of the order denying Schultz's motion to dismiss for failure to join an indispensable party is not an appealable nonfinal order. See Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So. 2d 820, 821 (Fla. 2d DCA 2005) ("[T]he denial of a motion to dismiss for failure to name indispensable parties . . . is not listed as an appealable nonfinal order in rule 9.130(a)."). We are mindful that "the list of appealable nonfinal orders in [rule 9.130] is intended to be exhaustive." Hitt v. Homes & Land Brokers, Inc., 993 So. 2d 1162, 1165 (Fla. 2d DCA 2008). Consequently, we dismiss the appeal as to that portion of the trial court's order. See Well v. Well, 909 So. 2d 951, 951 (Fla. 3d DCA 2005) ("An order denying a motion to dismiss is not an appealable order unless it falls within one of the exceptions enumerated in the appellate rules."). II. Venue Is Proper in Sarasota Generally, when a trial court is presented with a motion to transfer venue, the defendant argues that, as a matter of law, the plaintiff filed 3 suit in the wrong forum. To rule on such a motion, the trial court must resolve any relevant factual disputes and then decide whether the plaintiff's venue choice is legally supportable. PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So. 2d 1131, 1133 (Fla. 2d DCA 1999). We review factual findings to determine whether they are supported by competent, substantial evidence or are clearly erroneous. Residential Sav. Mortg., Inc. v. Keesling, 73 So. 3d 280, 282 (Fla. 2d DCA 2011). Review of legal conclusions is de novo. Id. (a) Schultz's Math Problem The complaint contains six counts. However, Schultz challenged venue only as to the breach of contract and the declaratory judgment counts. Schultz has waived any improper venue challenge to the remaining four counts. See Fla. R. Civ. P. 1.140(b) ("Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: . . . improper venue . . . ."); Hendel v. Internet Escrow Servs., Inc., 317 So. 3d 1175, 1178 (Fla. 3d DCA 2021) ("Rule 1.140(b) requires the defendant to plead 'specifically and with particularity' the defense of improper venue, failing which the point will be waived."). When a complaint alleges multiple counts, proper venue for any count is proper venue for all counts. See § 47.041, Fla. Stat. (2021) ("Actions on several causes of action may be brought in any county where any of the causes of action arose."). We cannot grant Schultz the relief it seeks because the case is properly in Sarasota County. (b) Icon Sought Liquidated Damages Upon de novo review, we are not persuaded that Icon sought unliquidated damages. See Talbot v. Rosenbaum, 142 So. 3d 965, 967 (Fla. 4th DCA 2014) ("Whether damages alleged are liquidated or 4 unliquidated is a question of law subject to de novo review."). Consequently, contrary to Schultz's argument, the place of payment rule applies. A cause of action for breach of contract accrues, for venue purposes, where the breach occurred. Dep't of Transp. v. Cone & Graham, Inc., 884 So. 2d 224, 226 (Fla. 2d DCA 2004). A "place of payment" venue rule applies for the breach of contract to pay money. See id. If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed. Id. (quoting Thomas v. David Kilcoyne Real Est. Grp., Inc., 791 So. 2d 550, 551-52 (Fla. 2d DCA 2001)). Additionally, where (as here), a contract involves the payment of money and the contract fails to specify the place of payment, payment is due where the creditor resides. Patterson v. Teague Fin. Grp., Inc., 135 So. 3d 573, 574 (Fla. 2d DCA 2014). However, the place of payment venue rule only applies "when a debtor-creditor relationship exists between the plaintiff and defendant and the promise sued on is for the payment of a specified amount of money."2 Koslow v. Sanders, 4 So. 3d 37, 38 (Fla. 2d DCA 2009). When the damages are unliquidated, the debtor-creditor rule does not apply. RJG Env't, Inc. v. State Farm Fla. Ins. Co., 62 So. 3d 678, 679 (Fla. 2d 2 "Since every negotiable instrument must be 'an unconditional promise or order to pay a sum certain in money' . . ., actions for the sums directly due on negotiable instruments are, by definition, actions for liquidated damages." Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)). 5 DCA 2011). We have recognized that damages are not necessarily liquidated just because the complaint seeks a sum certain. See id. Icon alleged that it had completed several stages of its work for which Schultz made several installment payments of $125,000. Icon alleged that Schultz failed to remit the final payment of $100,480, with interest. These allegations present the quintessential definition of "liquidated damages." See Robinson v. Peterson, 375 So. 2d 294, 296 (Fla. 2d DCA 1979) ("When an amount due is fixed by contract, the claim is liquidated."); Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA 1983) ("Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law."); compare liquidated damages, Black's Law Dictionary 391 (6th ed. 1990) (defining "liquidated damages" as "those damages which are reasonably ascertainable at time of breach, measurable by fixed or established external standard, or by standard apparent from documents upon which plaintiffs based their claim"), with unliquidated damages, id. at 1537 (defining "unliquidated damages" as "[d]amages which have not been determined or calculated. Those which are not yet reduced to a certainty in respect to amount, nothing more being established than the plaintiff's right to recover, or such as cannot be fixed by a mere mathematical calculation from ascertainable data in the case."). Icon supported its allegations with the parties' contract and invoice records. See Suncoast Home Improvements, Inc. v. Robichaud, 106 So. 3d 969, 972 (Fla. 2d DCA 2013) ("Suncoast sought a sum certain that the owners allegedly failed to pay and attached an invoice to the complaint reflecting that amount. It is clear that payment is based on the insurance estimates referenced in 6 the contract. The allegations with the attached contract and invoice are sufficient to show a liquidated debt . . . ."). Schultz counters that Icon sought unliquidated damages based upon an affidavit it submitted in opposition to Schultz's motion to transfer venue. Specifically, Schultz points to the assertion that "Schultz owes Icon $100,480.00 for work completed at the Project site and Icon's lost profits." Schultz contends "that lost profits are an unliquidated damage claim." We cannot agree that an errant reference to lost profits transformed Icon's damage claim. We are skeptical that Icon's affidavit somehow pleaded a new or different form of relief from that alleged in Icon's operative pleading. See Hart Props., Inc. v. Slack, 159 So. 2d 236, 239 (Fla. 1963) ("[I]ssues in a cause are made solely by the pleadings . . . . [The purpose of pleadings] is to . . . 'present , define and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial.' " (quoting 71 C.J.S. Pleading § 1)). Claims for relief must be raised in pleadings; certainly they cannot be raised by way of an affidavit filed in response to a motion to change venue. See Fla. R. Civ. P. 1.100 (enumerating as "pleadings" either a complaint, petition, answer, cross-claim, answer to cross-claim, third-party complaint, and third-party answer); Fla. R. Civ. P. 1.110(b) (setting forth the contents of a claim for relief). Moreover, Icon's affidavit did not contradict its operative pleading, which sought to recoup "the remaining balance due from Shultz on the Contract." Rather, the amount of the claim remains readily ascertainable. Icon's use of the language "lost profits" simply referred to "[l]ost profits . . . recoverable as general damages . . . flow[ing] directly and immediately from the breach of a contract." Bird Lakes Dev. Corp. v. Meruelo, 626 So. 2d 234, 238 (Fla. 3d DCA 1993). 7 Because Icon sought liquidated damages, the place of payment rule applies; venue is proper in Sarasota County, where payment was due. (c) The Local Action Rule Has No Place Here We are unmoved by Schultz's arguments that: (a) transfer to Pinellas County is required under the "local action rule" because Icon sought declaratory relief concerning Pinellas County property, and (b) transfer is necessary to avoid conflicting rulings. Schultz suggests that the Sarasota County trial court "does not have in rem jurisdiction for the enforcement or foreclosure of a claim of lien." However, Icon sought neither "enforcement or foreclosure of a claim of lien." Rather, Icon requested the trial court "render its declaratory judgment on the interpretation of [section] 713.06 as regards Icon's right to a lien against the project." Icon alleged that it was uncertain as to its duty to serve a notice on the apartment complex owner, and when such notice need be served, as Schultz had failed to remit its final payment to Icon and the project was not yet completed. See § 713.06(2)(a), Fla. Stat. (2021) ("The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner’s disbursement of the final payment after the contractor has furnished the affidavit under subparagraph (3)(d)1."). In other words, Icon only sought clarification as to its "ability to file a lien against the 'Project.' " A request for a declaratory judgment is not a claim against real property. The "local action rule," although often discussed in the context of "venue," is not a venue concept. Rather, it pertains to a court's jurisdiction to resolve disputes related to real property outside the court's territorial boundary. Goedmakers v. Goedmakers, 520 So. 2d 575, 578 (Fla. 1988). Under the rule, a court may not exercise in rem jurisdiction 8 over property located outside its geographical territory. Publix Super Mkts, Inc. v. Cheesbro Roofing, Inc., 502 So. 2d 484, 487 (Fla. 5th DCA 1987), superseded by statute on other grounds. Although an action directly related to the legal status of real property, such as an action to quiet title or to foreclose a mortgage or lien, must be brought in the circuit where the property is located, id. at 486, the rule does not limit a court's in personam jurisdiction, even if the relief sought may incidentally affect real property located outside of the court's territory, Lallouz v. Lallouz, 695 So. 2d 466, 468 (Fla. 3d DCA 1997). Payment of money is the underlying dispute between the parties: [M]any in personam actions involve real property. However, the presence of real property as an issue does not make it a local action. Whether or not the action is local or transitory depends upon the underlying major question in the case. . . . [W]hen the suit is merely for payment of money, such as the purchase price of the property, there is no "property in litigation" . . . . Goedmakers, 520 So. 2d at 579 (citations omitted). Although Icon's request for a declaratory judgment may incidentally involve real property in Pinellas County, such a declaration is not directly related to the property. See Bauman v. Rayburn, 878 So. 2d 1273, 1274 (Fla. 5th DCA 2004) ("[A]n action directly related to the legal status of real property, such as an action to quiet title or to foreclose a mortgage or lien, must be brought in the circuit wherein the property is located."). As we have said, "[a] suit for declaratory relief does not itself constitute a cause of action for venue purposes, it is the underlying relief sought which determines venue." Royal Jones & Assocs., Inc. v. Cigna Ins. Co., 575 So. 2d 309, 310 (Fla. 2d DCA 1991) ("It was proper to transfer venue to Polk County since that is where the underlying cause of action occurred."). 9 (d) The Specter of Conflicting Rulings Schultz insists that because "the lien enforcement action must be brought in Pinellas County and the owner of the real property is not a party to this lawsuit, there is a real possibility of conflicting rulings." Schultz suggests that the property owner must be a defendant in a lien enforcement lawsuit. Recall, Icon did not ask the Sarasota County trial court to impose a lien on Pinellas County property. Nor did it seek enforcement or foreclosure of a lien in Pinellas County. To do that, Icon must proceed in Pinellas County, where the property is located. Goedmakers, 520 So. 2d at 578 ("In local actions, that is, proceedings against property having a fixed location, venue lies only in the county where the subject property is located because courts have no jurisdiction in actions relating to real property located outside their territorial boundaries."); Penton v. Intercredit Bank, N.A., 943 So. 2d 863, 864 (Fla. 3d DCA 2006) ("Section 47.011, Florida Statutes, provides that actions shall be brought only in the county where the property in litigation is located."). Schultz at once mischaracterizes the relief Icon seeks, while simultaneously managing to get ahead of itself. See, e.g., SAAD Homes, Inc. v. Rivero, 23 So. 3d 862, 863 (Fla. 3d DCA 2009) ("We agree that Broward County is the appropriate venue [for the mechanic's lien foreclosure suit] since the property is located in Broward County."); Mason v. Homes by Whitaker, Inc., 971 So. 2d 1029, 1030 (Fla. 5th DCA 2008) (finding error in trial court's denial of contractor's motion to transfer venue to Clay County where construction lien was filed on property located in Clay County); Tietig v. Riccio, 451 So. 2d 1016, 1016 (Fla. 3d DCA 1984) (holding that mechanic's lien action shall be brought where property is located). Should any lien foreclosure action come to pass, the property owner can vindicate its rights in Pinellas County. 10 Conclusion We dismiss the appeal as to the nonfinal nonappealable portion of the trial court's order denying Schultz's motion to dismiss for failure to join an indispensable party. We affirm the part of the order denying Schultz's motion to transfer venue. Dismissed in part; affirmed in part. KELLY and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 11