Sutton v. Smith

603 So. 2d 693, 1992 WL 201050
CourtDistrict Court of Appeal of Florida
DecidedAugust 21, 1992
Docket91-2524
StatusPublished
Cited by13 cases

This text of 603 So. 2d 693 (Sutton v. Smith) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sutton v. Smith, 603 So. 2d 693, 1992 WL 201050 (Fla. Ct. App. 1992).

Opinion

603 So.2d 693 (1992)

Alex SUTTON, Appellant,
v.
Thomas E. SMITH, Mitchell Shammas, Michael P. O'Neill and Charles Furrer, individually and d/b/a ARS & Associates, a Michigan partnership, Appellees.

No. 91-2524.

District Court of Appeal of Florida, First District.

August 21, 1992.

*694 John Paul Howard, Jacksonville, for appellant.

Frank M. Scruby, Orange Park, for appellees.

ZEHMER, Judge.

Alex Sutton appeals a final order dismissing his action for breach of contract based on the trial court's ruling that it lacks personal jurisdiction over Appellees. We hold that the trial court erred in dismissing the action for lack of jurisdiction because the sworn complaint and the affidavit filed by Appellees in support of their motion to dismiss established as a matter of law that Appellees entered into a joint business venture with Sutton that contemplated and actually involved substantial performance of activities in furtherance of the joint venture in Florida.

Sutton, a professional golfer who formerly resided at the Ravines Golf Course in Middleburg, Florida, sued Appellees, Thomas E. Smith, Mitchell Shammas, Michael P. O'Neill, and Charles Furrer, individually and doing business as ARS & Associates, a Michigan partnership, in the court below. The suit claimed damages allegedly resulting from Appellees' breach of a sponsorship agreement between ARS & Associates and Sutton. The complaint was duly sworn to by Sutton and alleged the following facts.

Prior to May 1, 1990, defendant Smith, the managing partner of ARS & Associates, and defendant Shammas came to the Ravines Golf Course, where Sutton was a resident golf professional, and entered into an oral agreement with Sutton to sponsor him on the senior PGA tour. After the terms and conditions were agreed upon, defendant O'Neill, an attorney, prepared a written agreement and sent it to Sutton in Florida where Sutton executed it. Sutton returned the agreement to O'Neill in Michigan where he and the remaining partners of ARS & Associates executed it. Thereafter, O'Neill sent the conformed copy of the agreement to Sutton who ultimately made it an exhibit to the sworn complaint.

The agreement, titled "Sponsorship Agreement," provided for a term from May 1, 1990, to December 31, 1990, subject to termination, extension or renewal as specified therein. Sutton agreed that during the term of the contract he would "play golf on the SENIOR PGA TOUR and engage in activities related to golf only for the benefit of the parties to this agreement." In return, the partnership agreed to compensate Sutton "for his expenses during the term of this agreement as more specifically set forth hereafter and Player [Sutton] agree[d] to render his full time services and to participate in as many golf tournaments as reasonable." The agreement stated further:

For Player's competing in such tournament during the term of this contract; the option hereinafter set forth giving Partnership the right to renew this contract; and all other undertakings of Player herein, the Partnership promise[d] to pay Player's proper and necessary expenses including the reasonable board and lodging expenses of the Player while playing in golf tournaments, transportation costs to and from tournaments, monthly rental and food expenses not to exceed ($830)) per month, and health care insurance not to exceed ($2000) per year, anything herein to the contrary notwithstanding. Partnership shall not be obligated to contribute more than Sixteen Thousand ($16,000) Dollars per year.

The Partnership was given the option to renew the agreement, "in their sole discretion," for another year through December 31, 1991. The agreement further recited that Sutton

*695 agree[d] that all income he receives, including but not limited to, lessons, exhibitions, television endorsements, tournament winnings, corporate outings, etc., shall be paid into the Partnership [ARS & Associates]. Player shall be required to furnish the Partnership with an itemized accounting of all income and expenses on a weekly basis. Player's income shall be apportionable as follows and in the following order:
(1) Reimbursement to Partnership of all Player and Partnership expenses;
(2) Distribution of balance as follows: 50% to Alex R. Sutton [and] 50% to ARS & Associates
Partnership shall have the sole discretion as to the release of funds but in no event, shall funds be distributed any later than December 31, 1990.

The agreement further recited that Sutton

has special, exceptional and unique skill and ability as a professional golfer, the loss of which cannot be estimated with any certainty and cannot be fairly or adequately compensated by damages and, therefore, agrees that Partnership shall have the right, in addition to any other rights which the Partnership possess[es], to enjoin him by appropriate injunction proceedings against playing professional golf without the consent of the Partnership, or engaging in activities related to golf for any person, firm, corporation, institution or on his own behalf, and against any other uncompensable breach of this contract.

The agreement contained provisions for termination and notice, recited that this written agreement "sets forth the entire agreement between the parties," and recited that the agreement is to be governed by the laws of the State of Michigan. Paragraph 14 recited that Sutton "agrees to and will instruct and authorize the PGA or any governing body or tournament sponsor or individual or agency in charge of a tournament whereby winnings are received, to directly deposit all such winnings into the Partnership [ARS & Associates] account."

The sworn complaint alleged that under the sponsorship agreement disbursement of funds generated by Sutton's golfing efforts and deposited to the ARS & Associates account were subject to defendant Smith's sole control as managing partner; that pursuant to the agreement, the partnership made contributions to the partnership fund to finance Sutton's activities, and Sutton deposited his earnings in the sum of $18,476 into the Partnership Fund; that Sutton's earnings were deposited pursuant to instructions given to the PGA at Ponte Vedra Beach, Florida, that all such earnings were to be paid directly to defendant Smith as managing partner; and that Smith in turn made deposits in Sutton's bank account in Middleburg, Florida. According to the complaint, between May 1 and September 30, 1990, Smith made at least sixteen such deposits into Sutton's account.

The sworn complaint further alleged that Sutton obtained an application and information necessary for him to get health care insurance through the PGA Touring Association at an annual cost of approximately $2000 per year, but that:

9. When plaintiff [Sutton] submitted this application and information to the Partnership through THOMAS E. SMITH, the managing partner, the Partnership rejected the same and plaintiff was instructed by defendant, THOMAS E. SMITH, plaintiff could obtain adequate insurance coverage at a lesser cost through Jim McCumber at the Ravines Golf Course, Middleburg, Clay County, Florida. Plaintiff immediately applied for such insurance. It was then determined that the nature and kind of health insurance which was available through the McCumbers' organization was tied to local medical facilities and doctors and would be of no benefit to plaintiff as a touring pro constantly on the move throughout the United States. He advised THOMAS E.

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Bluebook (online)
603 So. 2d 693, 1992 WL 201050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-smith-fladistctapp-1992.