Third District Court of Appeal State of Florida
Opinion filed February 7, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-776 Lower Tribunal No. 16-31-M ________________
Robert Mowder, Jr., et al., Appellants,
vs.
Jeremy Smith, Appellee.
An appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.
Gulisano Law, PLLC, and Michael Gulisano (Boca Raton), for appellants.
Brown Robert, LLP, Connis O. Brown, III, and Seth P. Robert, and Samantha Espada (Fort Lauderdale), for appellee.
Before MILLER, GORDO, and BOKOR, JJ.
MILLER, J. Appellants, Robert Mowder, Jr. and Mowder Real Estate Holdings, Inc.
(“MREH”), challenge a final judgment divesting them of any ownership
interest in certain real property located in Monroe County, Florida, and
requiring the conveyance of the same to appellee, Jeremy Smith. The
primary issue on appeal is whether the trial court erred in enforcing an oral
agreement to transfer real property on promissory estoppel grounds.
Reiterating the longstanding principle that the doctrine of part performance
operates as an exception to the proscriptions imposed by the statute of
frauds, we affirm the final judgment under review.
BACKGROUND
This dispute revolves around a waterfront duplex known as
“Yellowtail.” The facts underlying this appeal are inextricably intertwined with
separate transactions involving the Blue Marlin, a motel located in Marathon,
Florida. The lower tribunal found in favor of Mowder on the motel-related
claims, and Smith did not file a cross-appeal.
After the parties met through a mutual friend, Smith expressed an
interest in entering the commercial fishing industry. Mowder offered him
accommodations at Yellowtail. The property was encumbered by a
considerable mortgage, and the parties initially discussed pooling funds to
satisfy the outstanding balance.
2 Mowder soon grew weary of the Florida Keys, however, due to a failed
romantic relationship and began spending substantial time abroad. He did
not produce any funds and instead told Smith he would convey the property
to him if Smith unilaterally satisfied the mortgage. Mowder provided Smith
with the pay-off information, and Smith satisfied the mortgage. Smith
remained in possession of the property and paid all utilities and property
taxes. He also undertook substantial improvements.
Mowder never quitclaimed the property and, instead, years later,
sought to evict Smith from Yellowtail. Smith filed suit in the circuit court.
Included in the operative, multi-count complaint was a claim for promissory
estoppel seeking specific performance. Citing the statute of frauds, Mowder
moved to dismiss. The trial court denied the motion, and Mowder raised the
same defense in his answer.
The case proceeded to a nonjury trial, at the conclusion of which the
trial court found that Smith satisfied the mortgage in reliance upon the oral
agreement the property would be conveyed after payment was rendered. By
way of the final judgment, the court granted specific performance. The
instant appeal ensued.
STANDARD OF REVIEW
3 “Whether [an] oral agreement . . . is unenforceable under the statute of
frauds is a pure question of law” subject to de novo review. DK Arena, Inc.
v. EB Acquisitions I, LLC, 112 So. 3d 85, 91 (Fla. 2013). “A trial court’s
decision to grant specific performance,” however, “is reviewed under an
abuse of discretion standard.” All Seasons Condo. Ass’n, Inc. v. Patrician
Hotel, LLC, 274 So. 3d 438, 445 (Fla. 3d DCA 2019).
ANALYSIS
Tracing its origins to the common law, “[t]he statute of frauds grew out
of a purpose to intercept the frequency and success of actions based on
nothing more than loose verbal statements or mere innuendos.” Yates v.
Ball, 181 So. 341, 344 (Fla. 1937), receded from on other grounds by
Browning v. Poirier, 165 So. 3d 663 (Fla. 2015). To accomplish this
objective, section 725.01, Florida Statutes (2023), provides, in relevant part:
No action shall be brought . . . to charge any person . . . upon any contract for the sale of lands, . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
See also § 689.01, Fla. Stat. (“No estate or interest of freehold, or for a term
of more than 1 year . . . of any . . . lands . . . shall be . . . transferred . . . in
any manner other than by instrument in writing, signed in the presence of
two subscribing witnesses by the party . . . transferring . . . such estate,
4 interest, or term of more than 1 year . . . .”). After the legislature codified this
provision, the Florida Supreme Court considered, in Tanenbaum v. Biscayne
Osteopathic Hosp., Inc, 190 So. 2d 777 (Fla. 1966), whether to “adopt by
judicial action the doctrine of promissory estoppel as a sort of counteraction
to the legislatively created Statute of Frauds.” Id. at 779. The court declined
to do so, recognizing “the legislative prerogative of dealing with matters of
this nature.” Id.
Nonetheless, a myriad of reported cases recognize that the doctrine of
part performance removes a contract from the statute of frauds. See e.g.,
LaRue v. Kalex Constr. & Dev., Inc., 97 So. 3d 251, 253 (Fla 3d DCA 2012)
(“Where the contract is for the sale of land and the relief sought is for specific
performance or other equitable relief, partial performance may remove an
oral agreement from the statute of frauds.”); Xanadu of Cocoa Beach, Inc. v.
Zetley, 822 F.2d 982, 985 (11th Cir. 1987) (explaining parties are “entitled to
avail [themselves] of the doctrine of part performance . . . [to] prevent[] the
party who denies the contract’s existence from asserting the statute of
frauds”). Of course, this line of authority is not without limits. In cases
involving oral agreements to convey real property, delivery of possession is
required in order to prove part performance. See Goldman v. Citicorp Sav.
of Fla., 552 So. 2d 1124, 1125 (Fla. 3d DCA 1989) (“In an action for specific
5 performance where the doctrine of ‘part performance’ is raised; one
indispens[a]ble element of the doctrine is possession of the property by the
party seeking the specific performance.”)
Applying these principles, appellate courts have found that where there
is proof of an oral contract for conveyance, payment of consideration,
possession, and improvements made to the property, the contract is
removed from the statute of frauds and specific performance may be
justified. Miller v.
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Third District Court of Appeal State of Florida
Opinion filed February 7, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-776 Lower Tribunal No. 16-31-M ________________
Robert Mowder, Jr., et al., Appellants,
vs.
Jeremy Smith, Appellee.
An appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.
Gulisano Law, PLLC, and Michael Gulisano (Boca Raton), for appellants.
Brown Robert, LLP, Connis O. Brown, III, and Seth P. Robert, and Samantha Espada (Fort Lauderdale), for appellee.
Before MILLER, GORDO, and BOKOR, JJ.
MILLER, J. Appellants, Robert Mowder, Jr. and Mowder Real Estate Holdings, Inc.
(“MREH”), challenge a final judgment divesting them of any ownership
interest in certain real property located in Monroe County, Florida, and
requiring the conveyance of the same to appellee, Jeremy Smith. The
primary issue on appeal is whether the trial court erred in enforcing an oral
agreement to transfer real property on promissory estoppel grounds.
Reiterating the longstanding principle that the doctrine of part performance
operates as an exception to the proscriptions imposed by the statute of
frauds, we affirm the final judgment under review.
BACKGROUND
This dispute revolves around a waterfront duplex known as
“Yellowtail.” The facts underlying this appeal are inextricably intertwined with
separate transactions involving the Blue Marlin, a motel located in Marathon,
Florida. The lower tribunal found in favor of Mowder on the motel-related
claims, and Smith did not file a cross-appeal.
After the parties met through a mutual friend, Smith expressed an
interest in entering the commercial fishing industry. Mowder offered him
accommodations at Yellowtail. The property was encumbered by a
considerable mortgage, and the parties initially discussed pooling funds to
satisfy the outstanding balance.
2 Mowder soon grew weary of the Florida Keys, however, due to a failed
romantic relationship and began spending substantial time abroad. He did
not produce any funds and instead told Smith he would convey the property
to him if Smith unilaterally satisfied the mortgage. Mowder provided Smith
with the pay-off information, and Smith satisfied the mortgage. Smith
remained in possession of the property and paid all utilities and property
taxes. He also undertook substantial improvements.
Mowder never quitclaimed the property and, instead, years later,
sought to evict Smith from Yellowtail. Smith filed suit in the circuit court.
Included in the operative, multi-count complaint was a claim for promissory
estoppel seeking specific performance. Citing the statute of frauds, Mowder
moved to dismiss. The trial court denied the motion, and Mowder raised the
same defense in his answer.
The case proceeded to a nonjury trial, at the conclusion of which the
trial court found that Smith satisfied the mortgage in reliance upon the oral
agreement the property would be conveyed after payment was rendered. By
way of the final judgment, the court granted specific performance. The
instant appeal ensued.
STANDARD OF REVIEW
3 “Whether [an] oral agreement . . . is unenforceable under the statute of
frauds is a pure question of law” subject to de novo review. DK Arena, Inc.
v. EB Acquisitions I, LLC, 112 So. 3d 85, 91 (Fla. 2013). “A trial court’s
decision to grant specific performance,” however, “is reviewed under an
abuse of discretion standard.” All Seasons Condo. Ass’n, Inc. v. Patrician
Hotel, LLC, 274 So. 3d 438, 445 (Fla. 3d DCA 2019).
ANALYSIS
Tracing its origins to the common law, “[t]he statute of frauds grew out
of a purpose to intercept the frequency and success of actions based on
nothing more than loose verbal statements or mere innuendos.” Yates v.
Ball, 181 So. 341, 344 (Fla. 1937), receded from on other grounds by
Browning v. Poirier, 165 So. 3d 663 (Fla. 2015). To accomplish this
objective, section 725.01, Florida Statutes (2023), provides, in relevant part:
No action shall be brought . . . to charge any person . . . upon any contract for the sale of lands, . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
See also § 689.01, Fla. Stat. (“No estate or interest of freehold, or for a term
of more than 1 year . . . of any . . . lands . . . shall be . . . transferred . . . in
any manner other than by instrument in writing, signed in the presence of
two subscribing witnesses by the party . . . transferring . . . such estate,
4 interest, or term of more than 1 year . . . .”). After the legislature codified this
provision, the Florida Supreme Court considered, in Tanenbaum v. Biscayne
Osteopathic Hosp., Inc, 190 So. 2d 777 (Fla. 1966), whether to “adopt by
judicial action the doctrine of promissory estoppel as a sort of counteraction
to the legislatively created Statute of Frauds.” Id. at 779. The court declined
to do so, recognizing “the legislative prerogative of dealing with matters of
this nature.” Id.
Nonetheless, a myriad of reported cases recognize that the doctrine of
part performance removes a contract from the statute of frauds. See e.g.,
LaRue v. Kalex Constr. & Dev., Inc., 97 So. 3d 251, 253 (Fla 3d DCA 2012)
(“Where the contract is for the sale of land and the relief sought is for specific
performance or other equitable relief, partial performance may remove an
oral agreement from the statute of frauds.”); Xanadu of Cocoa Beach, Inc. v.
Zetley, 822 F.2d 982, 985 (11th Cir. 1987) (explaining parties are “entitled to
avail [themselves] of the doctrine of part performance . . . [to] prevent[] the
party who denies the contract’s existence from asserting the statute of
frauds”). Of course, this line of authority is not without limits. In cases
involving oral agreements to convey real property, delivery of possession is
required in order to prove part performance. See Goldman v. Citicorp Sav.
of Fla., 552 So. 2d 1124, 1125 (Fla. 3d DCA 1989) (“In an action for specific
5 performance where the doctrine of ‘part performance’ is raised; one
indispens[a]ble element of the doctrine is possession of the property by the
party seeking the specific performance.”)
Applying these principles, appellate courts have found that where there
is proof of an oral contract for conveyance, payment of consideration,
possession, and improvements made to the property, the contract is
removed from the statute of frauds and specific performance may be
justified. Miller v. Murray, 68 So. 2d 594, 596 (Fla. 1953) (“In addition to
establishing the fact that an oral contract for sale was made, proof must be
submitted as to the following: payment of all or part of the consideration,
whether it be in money or in services; possession by the alleged vendee; and
the making by the vendee of valuable and permanent improvements upon
the land . . . .”); see also Futch v. Head, 511 So. 2d 314, 319 (Fla. 1st DCA
1987); W.B.D., Inc. v. Howard Johnson Co., 382 So. 2d 1323, 1327 (Fla. 1st
DCA 1980); Moraitis v. Galluzzo, 487 So. 2d 1151, 1152 (Fla. 4th DCA
1986); Eclipse Med., Inc. v. Am. Hydro-Surgical Instruments, Inc., 262
F.Supp. 2d 1334, 1346 (S.D. Fla. 1999), aff'd sub nom. Eclipse Med., Inc. v.
Am. Hydro-Surgical, 235 F.3d 1344, 1344 (11th Cir. 2000); Ala v. Chesser,
5 So. 3d 715, 719 (Fla. 1st DCA 2009); 27 Fla. Jur. 2d Frauds, Statute of §
20 (2023).
6 Against this legal landscape, we examine the instant case. Here,
although the parties sharply disputed the chronology of events, the court
found that Mowder orally agreed to convey Yellowtail to Smith upon
satisfaction of the mortgage. Mowder provided Smith with the payoff
information, and Smith rendered payment. Critically, Smith continuously
remained in possession of Yellowtail. He also paid taxes when due, made
improvements to the property, and tendered additional consideration in the
form of investment in the Blue Marine motel. These factors are sufficient to
sustain the findings that part performance removed the oral agreement from
the statute of frauds and specific performance was warranted.
Further, while we may have arrived at a different conclusion in the first
instance, it is not our role to reweigh the evidence. Instead, it is our duty to
affirm those factual findings that are supported by competent, substantial
evidence. See Citibank, N.A. v. Olsak, 208 So. 3d 227, 229 (Fla. 3d DCA
2016); see also Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 354 (Fla. 4th
DCA 2007) (“An appellate court will not disturb a trial court’s factual findings
when supported by competent substantial evidence.”); Markham v. Fogg,
458 So. 2d 1122, 1126 (Fla. 1984) (holding appellate court “should not
substitute its judgment for that of the trier of fact” as long as there is
“competent, substantial evidence”); Dreyfuss v. Dreyfuss, 701 So. 2d 437,
7 440 (Fla. 3d DCA 1997) (reiterating “appellate court has duty to affirm trial
court findings supported by competent, substantial evidence”); Zerquera v.
Centennial Homeowners' Ass'n, Inc., 721 So. 2d 751, 752 (Fla. 3d DCA
1998) (explaining in bench trial, judge's findings of fact will not be disturbed
unless totally unsupported by competent, substantial evidence). Here,
ample testimony of record supports the findings accompanying the final
judgment, and it is scarcely debatable that, given the divergent rulings on the
competing claims, the trial court considered the holistic equities in arriving at
the decision below. Accordingly, we affirm in all respects.
Affirmed.