Schweitzer v. SeamanSchweitzer v. Seaman
Robert S. SCHWEITZER, Appellant,
v.
Larry SEAMAN, Appellee.
District Court of Appeal of Florida, Fourth District.
*1176 Rodger L. Spink, Hollywood, for appellant.
Michael J. Garavaglia of Rosen, Rosen, Garavaglia & Ziff, P.A., Miramar, for appellee.
BERANEK, Judge.
Plаintiff appeals the dismissal with prejudice of his amended complaint seeking recovery from defendant for an alleged violation of a non-competition covenant in an agreement. We affirm.
Plaintiff and defendant, Drs. Seaman and Schweitzer, both podiatrists, entеred into an agreement on January 17, 1975. This written agreement memorialized a prior verbal agreement between the doctors regarding their business relationship. The agreement provided in part as follows:
1. Dr. Seaman is an independent (sic) contractor insofar as fisсal matters are concerned and therefor Dr. Seaman is responsible to Dr. Schweitzer insofar as the offices of Dr. Schweitzer, at 2500 East Hall. Beach Blvd., for 50% of the gross amount taken in at said office for all general podiatry work performed by Seaman there and 40% of all podiatry surgery at said location, the premises of Dr. Schweitzer. This money is due on the 2nd or 3rd of the month following its being acrued (sic) оr taken in, and is strictly in exchange for use of equipment, materials, services, etc.
2. Dr. Seaman is responsible for paying his own professiоnal liability insurance and for all followups and redressings on surgery performed there. He is solely responsible for surgery he (Dr. Seaman) performs.
*1177 3. All patient charts, all patient records are strictly the property of Dr. Schweitzer and may not be removed from the officеs nor any patient contacted should there be a dissolvement of this agreement at any time and for whatever reason.
4. In considеration of the opportunity being afforded Dr. Seaman, Dr. Seaman may not, following any separation from the offices of Dr. Schweitzer, work in, associate with or operate in any manner in any podiatry office or office where podiatry is practiced within five miles (5 miles) for a period of three years following any dissolution of this arrangement as per 1. Should he so do so, then it is agreed by both parties that accumulated damages due Dr. Schweitzer would be in excess of $25,000. To clarify; Dr. Seaman may not, following, any removal of this arrangement of use of Dr. Schweitzer's premises, services, etc. open or practice in any office within 5 miles of 2500 East Hallandale Bеach Blvd. for a period of three (3) years following his leaving 2500 East Beach Blvd. offices of Dr. Schweitzer.
Plaintiff filed a complaint alleging thаt on or about February 8, 1977, the relationship created by the above agreement was dissolved and that prior to the expiration оf three years after the dissolution of the relationship, Dr. Seaman opened an office within five miles of Dr. Schweitzer's office in violаtion of Section 4 of the above agreement.
Defendant Seaman moved to dismiss the complaint alleging that the agreement wаs an illegal restraint of trade in violation of Section 542.12, Florida Statutes (1979). The trial court dismissed the complaint with leave to amend. Plaintiff thеn filed an amended complaint which contained the additional allegation that the association between the doctors wаs in fact a partnership. It characterized as a misnomer the description of Dr. Seaman as an independent contractor. Attached to the complaint was a copy of the agreement. Defendant again moved to dismiss based upon Section 542.12 further mаintaining that the allegation of partnership was an attempt to modify an unambiguous contract. The trial court granted this second motion to dismiss with prejudice. Plaintiff appeals arguing the agreement was ambiguous as to the nature of the business relationship. Plaintiff contends hе should have had the opportunity to prove his allegations of partnership.
Section 542.12, Florida Statutes (1979), provides in part:
(1) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
* * * * * *
(3) Partners may, upоn or in anticipation of a dissolution of the partnership, agree that all or some of them will not carry on a similar business within a reasonably limited time and area.
The Florida Supreme Court in Akey v. Murphy,
The issue presented here is whether based upon the complaint and attached agreеment the trial court could properly have found that the doctors' relationship was not a partnership and that plaintiff could not have amended his complaint to demonstrate that it was a partnership.
Plaintiff argues that an ambiguity exists as to whether this was indeed a рartnership. While the amended complaint alleges a partnership, the attached agreement was clearly to the cоntrary. It specifically provided that Dr. Seaman was an independent contractor, that his liability was separate and that Dr. Schweitzer's percentages of Seaman's grosses were strictly in exchange for equipment and materials. The separate liability provisiоn alone is in conflict with *1178 Florida law requiring partnership liability for the wrongful act of a single partner. Section 620.62, Florida Statutes (1979). Further, the agreement specifically defines Dr. Seaman as an independent contractor.
The words found in a contract are to be given meaning and are the best possible evidence of the intent of the contracting parties. Jacobs v. Petrino,
In finding the contract unambiguous, we necessarily find correct the dismissal of the complaint with prejudice. The amended complaint merely alleged the parties intended a partnership. The attached сontract clearly shows to the contrary. Where there is an inconsistency between the general allegations of material fаct in the complaint and the specific facts revealed by the exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable. Harry Pepper & Assoc., Inc. v. Lasseter,
We, therefore, affirm the judgment of the trial court dismissing the amended complaint with prejudice.
AFFIRMED.
LETTS, C.J., and DOWNEY, J., concur.