Associate Attorney
Big Gates Records v. Stewart is a clean lesson in why corporate separateness, privity, and geographic limits on consumer protection statutes all still matter — even when someone clearly got burned.
What happened
Bryan Stewart owned Club Empire in Little Rock, Arkansas. He wanted the rapper Plies to perform. To book the show, he went through GoGetta, a South Carolina booking agency. GoGetta then contracted separately with Big Gates Records — Plies’ Florida-based label — for a $26,250 performance.
The deal required two payments of $13,125. The first went through without a hitch. The second was due by July 25, 2019 — 48 hours before the show. What arrived on July 26 was $625 short and a day late. Plies didn’t perform.
Stewart sued BGR and Plies for breach of contract and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). A jury awarded him $48,133 on the contract claim and $25,000 on FDUTPA. Florida’s Second District reversed on all counts.
Problem 1: Stewart had no standing to sue
Here’s the structural problem the trial court glossed over: Stewart personally never contracted with BGR or Plies. The club was operated by Empire Management, LLC — an entity Stewart owned a majority of, but not entirely. Empire Management paid GoGetta. GoGetta contracted with BGR. Stewart was nowhere in that chain.
The trial court waved this away by declaring Stewart and Empire Management “one and the same”, a position the appellate court didn’t buy. An LLC is a separate legal entity from its members — even a majority member, even a closely-held one. The primary injury, if any, was to Empire Management. Stewart was at most an incidental beneficiary of whatever deal was struck, not an intended one.
Attorney note
To pursue a third-party beneficiary theory under Florida law, the claimant must show the contract clearly and primarily intended to benefit them — not just that they would incidentally profit from performance. An owner benefiting financially if their LLC’s vendor performs is incidental benefit, not intended beneficiary status. The distinction matters and courts will enforce it.
Problem 2: “Substantial performance” doesn’t apply to late, short payments
The trial court gave the jury a substantial performance instruction — essentially telling them that Stewart only needed to show he “did substantially all” of what the contract required. The appellate court found this flatly wrong in the context of a payment obligation.
Substantial performance exists to protect parties who deviate from a contract’s terms in minor, unintentional ways — think a contractor who uses slightly different pipe fittings that perform identically. It does not apply when the obligation is simply to pay a specific amount by a specific date. Between commercial parties, payment is either on time and in full, or it isn’t. The second installment arrived a day late and $625 short. That’s not substantial performance of a payment term.
Attorney note
Florida courts have consistently held that when a contract specifies a payment amount and deadline, time is of the essence and no substantial performance defense is available. (“There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay. Payment is either made in the amount and on the date due, or it is not.” (Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So. 2d 767 (Fla. Dist. Ct. App. 2002).)
Problem 3: FDUTPA doesn’t travel to Arkansas
Stewart is an Arkansas resident. The event that allegedly harmed him — Plies not showing up — happened in Arkansas. FDUTPA protects Florida consumers from deceptive and unfair trade practices occurring in Florida. The court reiterated that only in-state consumers can pursue FDUTPA claims, and the triggering conduct has to occur here.
The Performance Agreement did choose Florida law and Hillsborough County venue — but that’s not enough to transform an out-of-state harm into a FDUTPA violation. On top of that, the court found the $25,000 FDUTPA award appeared to be duplicative of the contract damages anyway, since any real harm was already captured in the $48,133 verdict.
Attorney note
A Florida choice-of-law clause doesn’t convert an out-of-state consumer into a FDUTPA claimant. The statute’s geographic reach is tied to where the consumer is and where the offending conduct occurred — not where the contract was formed or governed. If your client was harmed by a Florida company but the harm occurred elsewhere, FDUTPA is likely not available and a duplicative damages problem may arise even if jurisdiction is otherwise proper.
The bigger picture
It’s easy to sympathize with Stewart. He presumably paid to bring a performer to his club, the performer didn’t come, and he was out real money. But sympathy doesn’t substitute for standing, and the court’s job is to apply the law to the actual parties and the actual contracts.
The case is a useful reminder that multi-party booking arrangements create a web of contracts — and that who actually has the right to sue whom depends on who signed what. Empire Management might have had a viable claim against GoGetta. GoGetta might have had a claim against BGR. But Stewart, in his individual capacity, was a step removed from the agreement that mattered.
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