B & F of Clearwater, Inc. v. Wesley Const. Co., 70-312
| Decision Date | 17 July 1970 |
| Docket Number | No. 70-312,70-312 |
| Citation | 237 So.2d 790 |
| Court | Florida District Court of Appeals |
| Parties | B & F OF CLEARWATER, INC., Appellant, v. WESLEY CONSTRUCTION COMPANY, Appellee. |
Burton C. Easton, Clearwater, for appellant.
Martin E. Segal, of Patton, Kanner, Tietig & Segal, Miami, for appellee.
B & F of Clearwater, Inc., plaintiff in the trial court and appellant here, filed a complaint against Wesley Construction Company, defendant-appellee, in the Circuit Court for Pinellas County, Florida. The suit arose from appellee's repudiation before completion of a contract for construction and delivery of three units of buildings to appellee at a jobsite in Dade County. Appellant sought in this complaint restitution based on quantum meruit for labor costs, overhead, and reasonable profit involved in the performance of work thus far completed. It was stated in this complaint that appellee was a corporation residing in Dade County, Florida. Appellee then filed a Motion to Abate and Transfer, contending that the complaint failed to comply with Fla.Stat. § 46.04, F.S.A., and that proper venue for the complaint was in Dade County, Florida, where the cause of action accrued. Before a hearing was held on appellee's motion for change of venue, appellant amended his complaint to include an additional count for damages for breach of contract. After the hearing was held and memoranda of law submitted by counsel, the trial judge entered an order granting appellee's motion for a change of venue. The order was based on findings that the obligations from which appellant's cause of action arose were to be performed in Dade County, Florida, and that payment of appellant was subject to a prime contract between appellee and the Dade County Board of Public Instruction. The court held that these facts, when viewed in light of Permenter v. Bank of Green Cove Springs, Fla.App.1962, 136 So.2d 377, compelled the change of venue. Appellant brings this appeal from the above order.
Considering first appellant's argument that there is nothing in the record to support the finding of the trial court that appellant's payment was subject to a prime contract between appellant and the Dade County Board of Public Instruction, we conclude, after careful examination of the record on appeal, that appellant is correct. Thus the issue on appeal is whether the judgment of the trial court is sustainable on the basis of its finding that the obligations from which appellant's cause of action arose were to be performed in Dade County and the Permenter decision.
'Place of performance' as used in determining the place where the cause of action accrues in questions of venue under Fla.Stat. §§ 47.041 and 47.051, F.S.A., is something of a phrase of art, and like all such phrases it can have multiple meanings, depending on the circumstances of the case in which it is applied. Suppose, for example, a prime contractor brings suit against a subcontractor for damages. Venue may obtain in the county where the subcontractor is to perform his services or deliver his goods, even though his place of business may be in another county. However, if this same subcontractor brings suit against the same prime contractor, alleging breach of contract in that he has not been paid for his performance, if the contract does not provide otherwise, the place of performance of the Prime contractor's contractual obligation is the place where the subcontractor is to be paid. Thus if the prime contractor breaches his obligation, the cause of action accrues where the subcontractor is to be paid. Williams v. Aeroland Oil Co., 1944, 155 Fla. 114, 20 So.2d 346; Croker v. Powell, 1934, 115 Fla. 733, 156 So. 146; M. A. Kite Co. v. A. C. Samford, Inc., Fla.App.1961, 130 So.2d 99, 101. See also Duggan v. Tomlinson, Fla.1965, 174 So.2d 393, 394.
The rule compelling this result was first announced by the Florida Supreme Court in Croker, supra, and is summarized in the M. A. Kite Co. case, 130 So.2d at 101 as follows:
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