VOINEAG v. KLINE (2002)

District Court of Appeal of Florida,Fourth District.

Aurel Gavrila VOINEAG and Schneider National Carriers, Inc., a foreign corporation, Appellants, v. Nancy KLINE, Appellee.

No. 4D02-2170.

Decided: December 04, 2002

Victor M. Halbach, Jr.,L. Johnson Sarber, III, and Sonya H. Hoener of Marks Gray, P.A., Jacksonville, for appellants. Gregg M. Paley of Paley & Goldwyn, P.L., Deerfield Beach, (withdrawn as counsel after filing brief), for appellee.

Appellee plaintiff filed this personal injury suit in Palm Beach County alleging that an auto accident occurred in Jupiter, Florida. About six months later a witness established, for the first time to the knowledge of the defendant, that the accident had occurred in Martin County, not Palm Beach County. There was no other venue basis for bringing the action in Palm Beach County.

Defendants promptly moved to change venue to Martin County. Although plaintiff recognized that venue was not proper in Palm Beach County, she persuaded the trial court that venue had been waived. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955).

A waiver is the intentional or voluntary relinquishment of a known right. Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136 (Fla. 1st DCA 1999). We conclude that under the facts of this case, where defendants moved to change venue as soon as they discovered venue was improper, defendants did not waive their right to have venue changed. Reversed.

KLEIN, J.

STEVENSON and TAYLOR, JJ., concur.

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