JUPITER SQUARE S.C. ASSOCIATES, INC., APPELLANT,
v.
TOMARY, INC., A FLORIDA CORPORATION, AND THOMAS BASHWINER, APPELLEES
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Jupiter Square, a shopping center lessor, appealed a judgment finding it committed anticipatory breach of a lease agreement with tenant Tomary, Inc. The court reversed, holding that an alleged oral modification of the lease could not overcome the written lease's integration clause because the tenant's reliance actions were required under the original lease terms.
The court held that the trial court erred in denying the directed verdict because the oral modification cannot overcome the integration clause. Even assuming the oral modification was accepted, it was not 'acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it' since the tenant's actions were obligatory under the original written lease.
[1] To state a claim for anticipatory breach of contract, a party must allege facts demonstrating that the opposing party has manifested an absolute and unequivocal intention…
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Join FLexlaw to unlock all legal intelligence“a written contract ... may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it”
Establishes the legal standard for when an oral modification can override an integration clause in a written contract
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Join FLexlaw to unlock all legal intelligenceThe parties executed a lease agreement for space in appellant's shopping center. Shortly after signing, the parties discussed improvements required of…
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WARNER, Judge.
This appeal questions a judgment in favor of appellees-lessees for anticipatory breach of a lease agreement by appellant-lessor. While there are good arguments made regarding the disposition of a motion for summary judgment and some evidentiary rulings, we choose to address the dispos-itive issue of whether or not the trial court erred in denying appellant’s motion for directed verdict at the close of the case. We hold that the court erred and reverse.
A lengthy dissertation of facts is unnecessary. The salient facts to the point on appeal are that the parties entered into a lease agreement for space in appellant’s shopping center. Taking the facts most favorable to appellees, shortly after the signing of the lease the parties entered into discussions with respect to the improvements required of the appellant under the lease, and an oral modification of the lease was made. However, this oral modification violated the integration clause of the written lease which prohibited oral modification of the lease. The law states that:
[a] written contract ... may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it_ An oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing.
Professional Insurance Corporation v. Cahill, 90 So. 2d 916, 918 (Fla.1956). See also King Partitions v. Donner Enterprises, 464 So. 2d 715 (Fla. 4th DCA 1985).
The appellees claim that it took actions in reliance on the oral modification. However, the actions upon which it relies were matters which were necessary for appellees to perform under the original written lease. Therefore, even if the evidence supports the position that the oral agreement was accepted, it was not “acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.” Professional Insurance Corp. v. Cahill, 90 So. 2d at 918. Therefore, the oral modification cannot be sustained given the integration clause of the written contract, and the court erred in failing to grant the directed verdict in favor of appellant.
Reverse for entry of judgment in favor of appellant.
GUNTHER, J., concurs.
DELL, J., dissents without opinion.
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DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So. 3d 313 (Fla. 4th DCA 2010)…a fraud upon the purchaser to refuse to enforce it. Id. at 1052-53. Blue Paper followed law long established in Florida. See, e.g., Prof'l Ins. Corp. v. Cahill, 90 So. 2d 916, 917-18 (Fla.1956); Jupiter Square S.C. Associates, Inc. v. Tomary, Inc., 571 So. 2d 538 (Fla. 4th DCA 1990). Here, like the purchaser in Blue Paper, EB relied on the extension of the due diligence period in its effort to bring the joint venture into being. Termination of the purchase contract and a request for a return of the deposit…
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Blue Paper, Inc. v. Provost, 914 So. 2d 1048 (Fla. 4th DCA 2005)…uld work a fraud on either party to refuse to enforce it.” W.W. Contracting, Inc. v. Harrison, 779 So. 2d 528, 529 (Fla. 2d DCA 2000); see Prof'l Ins. Corp. v. Cahill, 90 So. 2d 916, 918 (Fla.1956); Jupiter Square S.C. Assocs., Inc. v. Tomary, Inc., 571 So. 2d 538 (Fla. 4th DCA 1990). Under [*1053] these circumstances, an oral modification may be permissible even where, as here, a written contract contains a provision prohibiting modification except in writing. In this case, Provost did not tender the remain…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seymore v. State, 90 So. 2d 916 (Fla. 1956)
- King Partitions & Drywall, Inc. v. Donner Enters., Inc., 464 So. 2d 715 (Fla. 4th DCA 1985)
- Prof'l Ins. Corp. v. Cahill, 90 So. 2d 916 (Fla. 1956)