JOHN W. ROHRBACK, APPELLANT,
v.
MAXWELL DAUER, REVA DAUER, REVA-MAX, INC. AND CYPRESS SQUARE DEVELOPMENT LTD., APPELLEES
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Rohrback appealed a summary judgment dismissing his claims against Dauer and related entities for breach of an alleged oral agreement to preserve his partnership interest from foreclosure. The Third District Court of Appeal reversed, finding genuine issues of material fact precluding summary judgment on multiple grounds including the statute of limitations, statute of frauds, consideration, and fraud.
The court reversed summary judgment, holding that appellees failed to conclusively establish the absence of genuine issues of material fact on multiple grounds. The court also held that the alleged agreement was not a sale of personal property subject to the statute of frauds, as it was an employment-type contract providing for services and forbearance rather than a sale.
[1] A party seeking summary judgment must conclusively establish the absence of genuine issues of material fact regarding all elements of their claim or defense.
[2] The statute of limitations begins to run when a party knows or should have known of their right to a cause of action.
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Join FLexlaw to unlock all legal intelligence“We reverse the final summary judgment in favor of appellees on a finding that they failed to meet their burden of conclusively establishing the lack of genuine issues of material fact”
Establishes the standard for reversing summary judgment and the appellees' failure to meet it on multiple grounds.
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Join FLexlaw to unlock all legal intelligenceRohrback alleged an oral agreement with the appellees whereby they would preserve his partnership interest from loss through foreclosure in exchange f…
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NESBITT, Judge.
We reverse the final summary judgment in favor of appellees on a finding that they failed to meet their burden of conclusively establishing the lack of genuine issues of material fact with regard to: (a) when Rohrback knew or should have known of his right to a cause of action so as to trigger the running of the statute of limitations, Rosen v. Sparber, 369 So. 2d 960 (Fla. 3d DCA 1978), cert. denied, 376 So. 2d 76 (Fla.1979); (b) whether they (appellee;s) lacked knowledge of Rohrback’s intention to assert his rights and whether they were prejudiced by his delay in bringing suit, Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956); (c) whether the alleged oral agreement was supported by consideration, Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA), cert. denied, 341 So. 2d 1086 (Fla.1976); (d) whether the statute of frauds applied,1 see Av-Med, Inc. v. French, 458 So. 2d 67 (Fla. 3d DCA 1984) (complete performance by a party removes oral contract from the operation of the statute of frauds); United of Omaha Life Insurance Co. v. Nob Hill Associates, 450 So. 2d 536 (Fla. 3d DCA), review denied, 458 So. 2d 274 (Fla.1984) (party may be es-topped from raising statute of frauds as a defense); Dobbs v. Gorlitz, 443 So. 2d 1068 (Fla. 3d DCA 1984) (issue of fact on question of whether oral promise was to be performed within a year precludes summary judgment); and (e) whether there was consideration for the assignment of Rohr-baek’s right, title and interest in the partnership and whether the assignment was procured by fraud,2 Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983).
We find, in addition, that the alleged agreement was not a sale of personal property for purposes of section 671.206(1), Florida Statutes (1983).3 The agreement provided that the appellees would preserve Rohrback’s partnership interest from loss through foreclosure in return for Rohr-back’s continued services and forbearance from suit. Even if the agreement required the paper transfer of an interest from appellees to Rohrback, the agreement was not a contract for the sale of personal property.4 Cf. Stone v. Krylon, Inc., 141 F.Supp. 785 (E.D.Pa.1956) (oral agreement to provide plaintiff with an exclusive distributorship in return for his services in developing a product is a contract of employment and not a sale subject to the statute of frauds); Baldassare v. Singer, 444 Pa. 100, 282 A. 2d 262 (1971) (plaintiffs agreement to work for defendant in exchange for stock not a sale subject to the statute of frauds).
Reversed.
. The statute of frauds does not operate to bar Rohrback’s quantum meruit and fraud actions. See Hiatt v. Vaughn, 430 So. 2d 597, 598 n. 2 (Fla. 4th DCA 1983) (claim for quantum meruit not subject to the statute of frauds); Chaires v. North Florida National Bank, 432 So. 2d 183 (Fla. 1st DCA 1983) (reversing dismissal of fraud count which was based on statute of frauds).
. We note that if there was consideration for the assignment and it was not fraudulently obtained, then Rohrback is entitled to no relief on his breach of contract count.
. 671.206 Statute of frauds for kinds of personal property not otherwise covered.—
(1) Except in the cases described in subsection (2) of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond $5,000 in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent.
.We leave for decision in a future case the question of whether the transfer of a partnership interest for a price, as opposed to services, constitutes a sale of personal property. See §§ 620.18, 671.206(1), 672.106(1), Fla.Stats. (1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harrison v. Pritchett, 682 So. 2d 650 (Fla. 1st DCA 1996)…ontract is excluded by the operation of the statute of frauds. See Miller v. Greene, 104 So. 2d 457, 462 (Fla.1958); Collier v. Brooks, 632 So. 2d at 158 n. 20; Neveils v. Thagard, 145 So. 2d 495, 497 (Fla. 1st DCA 1962); see also Rohrback v. Dauer, 469 So. 2d 833, 834 n. 1 (Fla. 3d DCA 1985); and Hiatt v. Vaughn, 430 So .2d 597, 598 n. 2 (Fla. 4th DCA 1983). Accordingly, because the trial court erroneously applied the statute of frauds to the quantum meruit count, we reverse as to that count.2 [*653] AFFIRME…
Authorities Cited
- VAN Meter v. Edward L. Kelsey and his wife, 91 So. 2d 327 (Fla. 1956)
- United OF Omaha Life Ins. Co. & Tower Mortg. Corp. v. NOB Hill Assocs., 450 So. 2d 536 (Fla. 3d DCA 1984)
- Behe v. William H. Kirkley, M.D., 430 So. 2d 597 (Fla. 4th DCA 1983)
- Chaires v. N. Fla. Nat'l Bank, 432 So. 2d 183 (Fla. 1st DCA 1983)
- Av-Med, Inc. v. French, 458 So. 2d 67 (Fla. 3d DCA 1984)
- Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA 1976)
- Alpha Elec. Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981)
- Ton-Will Enters., Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983)
- Rosen v. Sparber, 369 So. 2d 960 (Fla. 3d DCA 1978)
- Dobbs v. Jules Gorlitz, 443 So. 2d 1068 (Fla. 3d DCA 1984)