LOUIS ST. LAURENT, INDIVIDUALLY AND AS TRUSTEE, APPELLANT,
v.
RESORT MARKETING ASSOCIATES, INC., A FLORIDA CORPORATION, AND TAMPA LAND COMPANY, A REGISTERED REAL ESTATE BROKER, APPELLEES

Fla. 2d DCA | 1981-04-10
Nos. 80-1864, 80-2135
SCHEB, C. J., and CAMPBELL, J., concur.
399 So. 2d 362 Florida District Court of Appeal, Second District (1981) Caution
Cited by 22 cases

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Holding

Venue does not lie in Lee County because the cause of action accrued in Monroe County, where the services were to be performed and the alleged breach occurred.


Headnotes

[1] Venue for a breach of contract action may be proper in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is l…

[2] For a service contract, the cause of action accrues where the services are to be performed.

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Facts & Procedural History

Plaintiffs sued defendant for breach of a sales marketing agreement. The defendant argued venue was improper in Lee County, asserting the contract was…

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Opinion of the Court
BOARDMAN, Judge.

BOARDMAN, Judge.

In these interlocutory appeals, defendant St. Laurent challenges trial court orders denying his motions to dismiss for improper venue and to transfer on the basis of forum non conveniens. We hold that venue does not lie in Lee County where plaintiffs/appellees Resort Marketing Associates and Tampa Land Company filed this lawsuit, and we therefore reverse.

The complaint alleged that appellant had breached a sales marketing agreement between the parties for the sale of weekly units of interval ownership at a condominium resort known as Topsider Ocean Resort located on U.S. 1, Matacumbe Key, Monroe County. In paragraph 4 of the complaint appellees alleged that the funds under the contract were to be paid in Lee County. The motion to dismiss for improper venue stated that appellant’s sole place of residence was currently in Monroe County; the property in litigation was located in Monroe County; “[p]ayments under the subject Contract, contrary to the allegations of Paragraph 4 of the Complaint, were to be made in Monroe County since that is where all closings were to take place ‘on site’ in accordance with Paragraph 7A of the Contract, on which the action is based, and all final commissions allegedly accruing were to be due and paid only at closing”; and the cause of action for breach of contract, if any, occurred in Monroe County. Appellant filed an accompanying affidavit attesting to the truth of the statements contained in the motion.

The breach alleged was that appellant had ordered all of appellees’ employees to leave the Topsider Ocean Resort premises and to cease performing under the contract. The testimony established that appellant’s order was originally delivered in person at the Topsider Ocean Resort office in Monroe County, although he later wrote and hand delivered a formal termination letter to appellees in Lee County.

Richard Ogborne, a former Topsider employee, testified that overall direction and control over the sales operation was maintained in Lee County, that Resort Marketing’s staff worked on marketing concepts and administrative functions in Lee County, and that reports concerning the progress of the sales effort were made to appellant in Lee County. However, it was undisputed that the services necessary for the day-today operation of the Topsider Ocean Resort were performed at the Topsider office in Monroe County, and all sales efforts pursuant to the agreement were performed by appellees in Monroe County.

Suit may be brought only where the defendant resides, where the cause of action accrued, or where the property in litigation is located. § 47.011, Fla.Stat. (1977). Inasmuch as there is no property in litigation, as such, and Monroe County was the county in which appellant resided at the time the action was filed and in which appellant continues to reside, the sole issue on this appeal is where the cause of action accrued.

As regards a service contract, the cause of action accrues where the services are to be performed. Thomas Hardell & Associates, Inc. v. Nabers & Crane, 382 So. 2d 439, 440 (Fla.2d DCA 1980); James A. Knowles, Inc. v. Imperial Lumber Co., 238 So. 2d 487 (Fla.2d DCA 1970). Since all sales efforts were performed in Monroe County and the actual sales took place there, we agree with appellant that the services under the contract in question were to be performed in Monroe County, regardless of the fact that the marketing strategy may have been determined elsewhere.

When there is an alleged breach of performance under a contract, where the cause of action accrues also depends on the nature of the breach alleged. If the breach is alleged to consist of renunciation of a partially completed contract, the cause of action accrues where the renunciation occurred. Mendez v. George Hunt, Inc., 191 So. 2d 480, 481 (Fla. 4th DCA 1966). We again agree with appellant that the alleged breach occurred in Monroe County, when appellant first ordered appellees’ employees to cease performing under the contract.

Appellees, however, contend that in addition to seeking damages for loss of future profit, they also sought to recover commissions and other sums due on sales already completed and reimbursement for expenditures they had to make which were actually appellant’s obligation. Appellees assert that these funds were payable to them at their office in Lee County.

Ordinarily it is true in an action for money owed that the cause of action accrues in the county of the creditor’s residence, since “the debtor should seek the creditor... . ” M. A. Kite Co. v. A. C. Samford, Inc., 130 So. 2d 99, 101 (Fla.1st DCA 1961). However, this general rule applies only where no place of payment is expressly agreed upon. M. A. Kite Co., supra; Winchester v. State ex rel. Florida Electric Supply, Inc., 134 So. 2d 826 (Fla.2d DCA 1961). The agreement in issue here provides that commissions and other costs due from appellant to appellees, delineated in paragraph 16, are to be paid “at closing,” the closings to occur “on site.” This being so, we conclude that the place of payment to appellees was Monroe County.

There being no theory upon which venue in Lee County can properly be laid, the trial court’s order denying appellant’s motion to dismiss for improper venue is REVERSED and the cause REMANDED with directions to grant the motion.1

SCHEB, C. J., and CAMPBELL, J., concur. . In light of our decision, the forum non con-veniens issue is moot, and we do not address it.


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Citator

Cited By (11 total)

  • Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So. 2d 1029 (Fla. 5th DCA 1985)
    …Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981); Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So. 2d 161 (Fla. 5th DCA 1980), review denied 392 So. 2d 1378 (Fla.1980). Carter Realty cites St. Laurent v. Resort Marketing Assoc., Inc., 399 So. 2d 362 (Fla. 2d DCA 1981), and Knowles v. Imperial Lumber Company, Inc., 238 So. 2d 487 (Fla. 2d DCA 1970). The breach in St. Laurent allegedly occurred when the defendant renounced a partially completed service contract by ordering the plaintiffs employee…
  • …8 So. 2d 665 (Fla. 4th DCA 1970), funds rightfully belonging to Southeast, it is clear that the act which gave the bank the right to get the money back was its acquisition by the defendant. See also, St. Laurent v. Resort Marketing Associates, Inc., 399 So. 2d 362 (Fla. 2d DCA 1981); American International Food Corp. v. Lesko, 358 So. 2d 250 (Fla. 4th DCA 1978). Since that took place in Orange County, that is where the claim “accrued” and where this action must therefore be maintained. The bank relies on cas…
  • Allen v. Walker, 810 So. 2d 1090 (Fla. 4th DCA 2002)
    …n improper venue. An action may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. See § 47.011, Fla. Stat. (2001); St. Laurent v. Resort Mktg. Assocs., Inc., 399 So. 2d 362, 363 (Fla.1981). “Under Florida law, the plaintiffs choice of venue is usually favored if the election is one which has been properly exercised under the applicable statutes.” Houston v. Caldwell, 359 So. 2d 858, 860 (Fla.1978), receded from on [*10…

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