Ryan v. Mobile Communications Enterprises, Inc.
| Citation | 594 So.2d 845 |
| Decision Date | 28 February 1992 |
| Docket Number | No. 91-01447,91-01447 |
| Parties | 17 Fla. L. Weekly D594 William M. RYAN, Appellant, v. MOBILE COMMUNICATIONS ENTERPRISES, INC., Appellee. |
| Court | Court of Appeal of Florida (US) |
Bonita L. Kneeland and W. Donald Cox of Fowler, White, Gillen, Boggs, Villaeal & Banker, P.A., Tampa, for appellant.
Sari Lynn Reegler of Reegler & Torneses, Venice, for appellee.
In July of 1990 plaintiff Mobile Communications Enterprises, Inc. (MCE) sued defendant William M. Ryan in Sarasota County for breach of a contract for management services, alleging that Ryan had orally repudiated the contract and had failed to pay sums due under the contract. Ryan, a resident of Brevard County, moved for a change of venue. MCE, however, contended that venue was proper in Sarasota County, the site where services were to be performed under the contract. The judge denied the motion to change venue, and Ryan appealed. We reverse.
Section 47.011, Florida Statutes (1989), provides for three permissible venues in an action against a Florida resident: the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. The parties agree that this litigation does not concern property, and the plaintiff has never contested Ryan's assertion that he resides in Brevard County. Therefore, only if the cause of action accrued in Sarasota County would venue be proper there.
The gist of the complaint is that MCE had been engaged to manage or sell Ryan's interest in the Sarasota County Cellular Telephone franchise, including constructing facilities for operation of the franchise. MCE alleged that it performed all services the contract required, but Ryan orally repudiated the contract and did not fulfill his obligation to pay amounts owing to MCE. MCE's theory behind its choice of venue in Sarasota County, then, is the rule that a cause of action on a service contract accrues where the services are to be performed. St. Laurent v. Resort Marketing Associates, Inc., 399 So.2d 362 (Fla. 2d DCA 1981); Thomas Hardell & Associates, Inc. v. Nabers & Crane, 382 So.2d 439 (Fla. 2d DCA 1980); James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla. 2d DCA 1970).
Although MCE is correct to characterize the underlying contract as one for services, the important consideration for venue purposes is the behavior or events causing the breach of the contract and thus accrual of the cause of action. MCE allegedly performed as agreed; Ryan, however, repudiated the contract and did not pay money owed. Thus, the breach was not of MCE's covenant to perform services but of Ryan's covenant to pay for those services. The following language from Windsor v. Migliaccio, 399 So.2d 65, 66 (Fla. 5th DCA 1981), is helpful:
A cause of action for venue purposes accrues in the county where the contract is breached. Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979). If a plaintiff alleges breach of a covenant to pay money due or already...
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...DCA 1975) (brokerage agreement), cert. denied, 330 So.2d 15 (Fla.1976). As explained by Judge Frank in Ryan v. Mobile Communications Enterprises, Inc., 594 So.2d 845 (Fla. 2d DCA 1992): Although [appellee] MCE is correct to characterize the underlying contract as one for services, the impor......
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