County Civil Court:  CONTRACTS – summary judgment – trial court did not err in granting summary judgment for defendant sua sponte – Small Claims Rule 7.135 permits a trial court to summarily dispose of a case if there is no triable issue – plaintiff stated he intended to perform “consensual cannibalism” – a contract against public policy is unenforceable - Summary Judgment affirmed.  Tourtelot v. Koshick, Appeal No. 04-0062AP-88A (Fla. 6th Cir. App. Ct. July 12, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

WILLIAM C. TOURTELOT,

                        Appellant,

 

vs.                                                                                    Appeal No. 04-0062AP-88A

                                                                                        UCN522004AP000062XXXXCV

 

JOHN KOSHICK, individually, and,

JOHN C. KOSHICK, d/b/a

JACK KOSHICK PRESENTS,

                        Appellees.

_________________________________________/

 

 

Appeal from Summary Judgment

Pinellas County Court

Judge Walt Fullerton

 

William C. Tourtelot, pro se

Appellant

 

John C. Koshick, pro se

Appellee

 

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by William C. Tourtelot (Tourtelot), from the Summary Judgment for Defendant, entered July 28, 2004, in favor of John C. Koshick, individually, and John C. Koshick, d/b/a Jack Koshick Presents (Koshick).  Upon review of the Initial Brief,[1] the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

            Initially, the Court finds that there is no transcript of the proceedings below.  Upon Tourtelot’s motion, this Court relinquished jurisdiction to the trial court to approve, in its discretion, a statement of evidence.  The trial court denied Tourtelot’s proposed Statement of Evidence and entered, on December 6, 2004, Trial Court’s Statement of Evidence or Proceedings.  Based on the Trial Court’s Statement of Evidence and the record on appeal, the Court finds that Tourtelot entered into a contract, on January 29, 2004, with Koshick for $250 to perform at the “Sun n’ Steel 1st Annual Florida Metalfest”  to be held on March 5th through 6th, 2004.  On March 1, 2004, Koshick cancelled Tourtelot’s scheduled performance. 

            Thereafter, Tourtelot sued Koshick for breach of contract seeking the $250 concert appearance fee.  Tourtelot later amended his complaint to add counts for fraudulent misrepresentation and unjust enrichment seeking damages of $4,954.41, plus costs and attorney’s fees.  Tourtelot also served Koshick with interrogatories and a request for production.  In a letter to the trial court, dated July 28, 2004, Koshick denied all allegations and requested to appear by phone as he lived out-of-state. 

On July 28, 2004, the trial court held a noticed pre-trial conference in which Koshick was permitted to appear by phone.  The parties were advised that all motions would be heard at the pre-trial conference.  There were no pending written motions.  Koshick requested that the trial court dismiss Tourtelot’s complaint, enter judgment on the pleadings, summary judgment or some other appropriate relief.  The trial court granted summary judgment in favor of Koshick finding that “[b]ecause Plaintiff willfully intended to commit unlawful acts neither contemplated, nor agreed upon in the contract Plaintiff has breached the contract.” 

As stated in the Trial Court’s Statement of Evidence: 

6.  Entertainer [Tourtelot], who previously advertised his intent to have someone commit suicide during his performance, advertised his performance at this concert to include “live cannibalism.”

 

7.  Horrified and fearful for his own liability in promoting and organizing such an illegal and unconscionable act and advised by the owner of the concert venue that the entire concert would be cancelled to the detriment of all other musicians, if this Entertainer participated, Promoter [Koshick] cancelled Entertainer’s performance at the upcoming concert.

 

The Court concluded that from the undisputed facts that Plaintiff had no legal claim against Defendant.  Rather, it was Plaintiff who breached the performance agreement by clearly intending to commit an illegal act during his so-called performance.

           

The trial court denied Tourtelot’s Motion for Rehearing and Motion for Disqualification.

            On appeal, Tourtelot argues that trial court erred in sua sponte granting summary judgment in favor of Koshick at the pre-trial conference.[2]  In reviewing this issue de novo, the Court finds that the proceedings below were governed by the Small Claims Rules such that Koshick was not required to file a responsive pleading or a written pre-trial motion.  See Fla. Sm. Cl. R. 7.090(c).  Additionally, Small Claims Rule 7.135 permits the trial court to summarily dispose of a case if there is no triable issue.

            Under the facts of this case, the Court finds that the trial court did not err in entering Summary Judgment for the Defendant.  Tourtelot’s own proposed Statement of Evidence concedes that Tourtelot was planning a stunt involving “consensual cannibalism.”  The well-established law is that a contract that is determined to be against public policy is illegal and not enforceable.  See Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860, 864 (Fla. 2005).  It requires no analysis to conclude that cannibalism of any kind is against public policy.

            Therefore, it is,

            ORDERED AND ADJUDGED that Summary Judgment for Defendant is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2005.

 

 

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Judge Walt Fullerton

William C. Tourtelot

Post Office Box 24711

Tampa, FL  33623

 

John C. Koshick

1626 N. Prospect Ave., Suite 1801

Milwaukee, WI  53202


[1] The Court notes that Koshick failed to file an Answer Brief even after being directed to do so.  However, the Court cannot not reverse the trial court based solely on Koshick’s failure to file an Answer Brief and must review this case on the merits of the Initial Brief and the appellate record.  See e.g. State, Board of Optometry v. Florida Society of Opthalmology, 538 So.2d 878, 888 (Fla. 1st DCA 1988)(explaining that appellate court must review case on the merits even when no answer brief is filed). 

 

[2]  Tourtelot does not raise as an issue on appeal whether the trial court properly denied his Motion for Disqualification.