
    Donald GOODWIN, Appellant, v. Gilberto FIGUEROA and Roberta Figueroa, Appellees.
    No. 81-928.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    
      Donald Goodwin, in pro. per.
    No appearance for appellees.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from an order denying a motion to abate for improper venue. We reverse.

The parties contracted for the sale of a boat owned by Goodwin. The Figueroas, as prospective purchasers, were required to deposit $4,000. When the Figueroas, alleging they were unable to obtain financing and thus complete the agreement, requested return of the deposit, Goodwin refused, claiming the deposit constituted liquidated damages. The Figueroas filed suit in Dade County Circuit Court claiming that financing was an agreed condition precedent to the contract and that Goodwin was being unjustly enriched by retaining the deposit. Goodwin timely filed a motion to abate the action, claiming improper venue. His affidavit in support of the motion to abate stated that he was a resident of Lee County; the contract was entered in Lee County; and any acts performed by him were to be performed in Lee County. After a hearing, the trial court denied the motion, and Goodwin instituted this appeal.

The Figueroas, as plaintiffs, had the right to select the venue, Houston v. Caldwell, 359 So.2d 858, 860 n. 3 (Fla.1978), but that selection is limited by Section 47.011, Florida Statutes (1979), to the county where (1) the defendant resides; (2) the cause of action accrued; or (3) the property in litigation is located. Since it is undisputed that Goodwin, the defendant, resides in Lee County and there is no property involved in the litigation, venue is proper in Dade County only if the plaintiffs’ cause of action accrued there. See Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966).

The cause of action, if any, accrued in Lee County. In Macasphalt Corporation v. General Development Corporation, 353 So.2d 878 (Fla.3d DCA 1978), we held that where the defendant is alleged to be illegally retaining an overpayment, the cause of action accrues in the county where the alleged overpayment is made. The Figuer-oas, as plaintiffs, alleged that Goodwin was being unjustly enriched by his retention of the deposit in Lee County. The act of breach or default by Goodwin occurred in Lee County, thus making venue in Dade County improper. Mendez v. George Hunt, Inc., supra.

Reversed and remanded for proceedings consistent with this opinion.

FERGUSON, Judge

(concurring).

I agree with the majority opinion that the cause of action, if any, accrued in Lee County making venue in Dade County improper. I base my conclusion, as I believe the majority does, not on a theory of overpayment, but simply upon the fact that the alleged wrongful act was committed in Lee County. In Macasphalt Corp. v. General Development Corp., 353 So.2d 878 (Fla.3d DCA 1978) the breaching act was alleged to be wrongful collection which was completed upon payment. In this case, the wrongful act was alleged to be that of withholding a sales deposit resulting in unjust enrichment or, alternatively, imposition of a penalty or forfeiture rather than legally appropriated liquidated damages.

I disagree with the majority opinion only to the extent that by citing to Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966), it suggests reliance on the test used to determine venue in a debtor-creditor relationship where the contract is silent as to place of payment. I also disagree that under the holding of U.S.H. Properties Corp. v. Intercoastal Investments, Inc., 331 So.2d 385 (Fla.2d DCA 1976), appellants would become creditors of appellees. In U.S.H. Properties, supra, the court stated that the return of the deposit was expressly required by the terms of the contract under certain conditions. Here the contractual agreement is not in evidence and we have no way of ascertaining whether the deposit was to be returned to buyer or retained by seller in the event the buyer could not obtain financing. In addition, plaintiffs here, unlike the plaintiffs in U.S.H. Properties, never alleged that the agreement, in fact, expressly required seller to return the funds. On the record before us, it is impossible to conclude that appellants became creditors upon refusal of the seller to return the deposit. The only possible conclusion, it seems to me, is that for the reasons stated in the uncontested affidavit of the defendant, the wrongful act occurred in Lee County. 
      
      . Even if the $4,000 deposit in litigation is, for venue purposes, considered personal property, the “property” is in Lee County.
     
      
      . As the court in Mendez v. George Hunt, Inc., supra, noted, normally where the cause of action involves the demand for the payment of money and no place of payment is stipulated, as is the case here, the default consists of the failure to pay the money, and the cause of action accrues where the creditor resides. U. S. H. Properties Corporation v. Intercoastal Investments, Inc., 331 So.2d 385 (Fla.2d DCA 1976). Since the “creditors,” here the Figueroas, reside in Dade County, it would appear at first blush that venue would be proper in Dade County. It is not, for two reasons: (1) that is not the theory alleged by the plaintiffs, and where the cause of action may accrue in different counties, the nature of the breach is determined by the claimant’s theory, Mendez v. George Hunt, Inc., supra; and (2) Goodwin’s uncontradicted (in this record) affidavit states that any acts he was to perform were to be performed in Lee County.
     