WILLIAM M. RYAN, APPELLANT,
v.
MOBILE COMMUNICATIONS ENTERPRISES, INC., APPELLEE
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Ryan, a Brevard County resident, was sued by Mobile Communications Enterprises (MCE) in Sarasota County for breach of a management services contract. The court reversed the trial court's denial of Ryan's motion to change venue, holding that venue was improper in Sarasota County because the cause of action accrued where payment was to be made (MCE's principal place of business in New Jersey), not where services were performed.
Venue was improper in Sarasota County. Because the complaint alleged breach of Ryan's covenant to pay money, the cause of action accrued where payment was to be made. Since the contract did not specify where payments were to be made, the proper venue is where MCE's principal place of business is located (New Jersey), or alternatively, in Brevard County where the defendant resides. Thus, the only proper Florida venue is Brevard County.
[1] Venue for an action against a Florida resident is proper in the county of the defendant's residence, where the cause of action accrued, or where the property in litigatio…
[2] A cause of action for breach of a covenant to pay money under a contract accrues where the act of payment was to occur.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A cause of action for venue purposes accrues in the county where the contract is breached.”
Establishes the fundamental rule for determining venue in contract breach cases
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Join FLexlaw to unlock all legal intelligenceIn July 1990, MCE sued Ryan for breach of a contract for management services related to a Sarasota County cellular telephone franchise. MCE alleged it…
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FRANK, Judge.
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 earned under a contract, the cause of action accrues where performance of the act of payment was to occur. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); M.A. Kite Co. v. A. C. Samford, Inc., 130 So. 2d 99 (Fla. 1st DCA 1961). If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed. American International Food Corp. v. Lesko, 358 So. 2d 250 (Fla. 4th DCA 1978).
Because the complaint alleges that Ryan breached his covenant to pay money due, the cause of action would accrue where the act of payment was to occur. The only provision in this contract that could arguably subsume the place where payment was to occur is that providing for notices and communications to be mailed to MCE in Lakewood, New Jersey. Otherwise, the rule is that when a written contract fails to specify the place where payments are to be made, a cause of action for failure to pay is properly brought in the county where the plaintiff has its principal place of business. See, e.g., First International Realty Investment Corp. v. Cochran, 314 So. 2d 214 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 15 (Fla.1976). Again, in this instance that place would be Lakewood, New Jersey.
The cause of action for Ryan’s breach of his duty to pay MCE cannot be said to have accrued in Florida. Thus, the only proper venue in Florida is the place of the defendant’s residence — Brevard County.
Accordingly, we reverse the order denying the motion for change of venue and remand with the direction that the trial court enter an order transferring this cause to Brevard County.
LEHAN, A.C.J., and PATTERSON, J„ concur.
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Metnick & Levy, P.A. v. Seuling, 123 So. 3d 639 (Fla. 4th DCA 2013)…ure to pay is properly brought in the county where the plaintiff has its principal place of business.” Sunshine Yacht Sales, Inc. v. Bob Anslow Yacht Sales, Inc., 669 So. 2d 342, 344 (Fla. 3d DCA 1996) (quoting Ryan v. Mobile Commc’ns Enters., Inc., 594 So. 2d 845, 846 (Fla. 2d DCA 1992)). Here, “[s]ince no place of payment was specifically designated, the effect of the contract [i]s that the place of payment [i]s the Florida office” of the law firm, placing Seuling within the ambit of Florida’s long-arm sta…
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Sunshine Yacht Sales, Inc. v. BOB Anslow Yacht Sales, Inc., 669 So. 2d 342 (Fla. 3d DCA 1996)…age agreement); First International Realty Investment Corporation, 314 So. 2d 214, 215 (Fla. 3d 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 important consideration for venue purposes is the behavior or events causing the breach of the contract and thus accrual of the…1 / 2
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Michael Schiffrin & Assocs., P.A. v. Koraly, 957 So. 2d 655 (Fla. 3d DCA 2007)…to pay is properly brought in the county where the plaintiff has its principal place of business. Sunshine Yacht Sales, Inc. v. Bob Anslow Yacht Sales, Inc., 669 So. 2d 342, 343-344 (Fla. 3d DCA 1996) (quoting Ryan v. Mobile Commc’ns Enters., Inc., 594 So. 2d 845, 846 (Fla. 2d DCA 1992)). Here, the complaint contains a single count for breach of contract for failure to make payment under the retainer agreement. Because Schiffrin alleges that it performed under the retainer agreement and that Koraly failed t…
Authorities Cited (11 total)
- Simmons v. State, 115 Fla. 733 (Fla. 1934)
- Jung H. Moon v. Ima-Park Place, LLC (Fla. 3d DCA 2021)
- M. A. Kite Co. v. A. C. Samford, Inc., 130 So. 2d 99 (Fla. 1st DCA 1961)
- James A. Knowles, Inc. v. Imperial Lumber Co., Inc., 238 So. 2d 487 (Fla. 2d DCA 1970)
- Windsor v. Crescent A. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981)
- Speedling, Inc. v. Harold "Andy" Krig, 378 So. 2d 57 (Fla. 2d DCA 1979)
- ST. Laurent v. Resort Mktg. Assocs., Inc., 399 So. 2d 362 (Fla. 2d DCA 1981)
- First Int'l Realty Inv. Corp. v. Cochran, 314 So. 2d 214 (Fla. 3d DCA 1975)
- State v. McCORMICK, 358 So. 2d 250 (Fla. 4th DCA 1978)
- Am. Int'l Food Corp. v. Lesko, 358 So. 2d 250 (Fla. 4th DCA 1978)