DANELIA GOMEZ v. CARLOS GOMEZ

• Court: District Court of Appeal of Florida
• Decided: May 24, 2023
• Docket: 22-1319
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 24, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1319 Lower Tribunal No. 20-7265 ________________

Danelia Gomez, et al., Appellants,

vs.

Carlos Gomez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.

Law Office of Mark A. Kamilar, and Mark A. Kamilar, for appellants.

Corona Law Firm, P.A., and Ricardo M. Corona and Michelle Denis, for appellee.

Before SCALES, MILLER and BOKOR, JJ.

PER CURIAM. Citing exclusively to Florida’s statute of frauds, 1 the trial court

dismissed, with prejudice, the three-count amended complaint of the

plaintiffs below, appellants Danelia Gomez and Odell Landeros. Count I of

the amended complaint alleges that appellee Carlos Gomez, the defendant

below, breached an oral joint venture agreement with appellants concerning

the acquisition, maintenance and sale of real property. Though the statute of

frauds generally does not apply to joint venture agreements to develop and

sell real estate for a profit, see Russell v. Thielen, 82 So. 2d 143, 146 (Fla.

1955), we affirm the dismissal of count I because there was no agreement

between the parties that appellee Gomez would share in the net profits of

the subject property’s sale. See Jackson-Shaw Co. v. Jacksonville Aviation

Auth., 8 So. 3d 1076, 1093-94 (Fla. 2008) (“While the agreement may meet

one or even several elements of the [joint venture] test, it clearly does not

meet all of them. . . . [W]hile the parties did agree to share in the net profits,

JAA never agreed to share in the losses . . . should the project prove

unprofitable.’” (quoting Jackson-Shaw Co. v. Jacksonville Aviation Auth.,

510 F. Supp. 2d 691, 730 (M.D. Fla. 2007))).

Counts II and III of the amended complaint seek equitable relief and

the imposition of a constructive trust on allegations sounding in unjust

1 § 725.01, Fla. Stat. (2017).

2 enrichment. Because such claims are not barred by the statute of frauds,

see Kolski ex rel. Kolski v. Kolski, 731 So. 2d 169, 172 (Fla. 3d DCA 1999),

we reverse the dismissal of counts II and II and remand to the trial court for

proceedings consistent with this opinion. 2

Affirmed in part; reversed in part and remanded with instructions.

2 We express no opinion on the merits of either of appellants’ surviving counts.