JERROLD A. BROSS, APPELLANT,
v.
DALE WALLACE, ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Bross appealed dismissal of his action against Wallace and Frady based on judgment on the pleadings. The court affirmed dismissal of most counts but reversed as to count two, holding that an oral agreement to purchase a restaurant could potentially be enforceable if performable within one year, requiring factual determination of the parties' intent.
An oral agreement to purchase a restaurant and franchise rights that could be performed within one year is not necessarily barred by the statute of frauds and cannot be dismissed on judgment on the pleadings. However, if the parties intended to purchase the restaurant and establish an ongoing business, the agreement would fall within the statute of frauds and be unenforceable. The parties' intent is a factual matter that cannot be resolved by motion for judgment on the pleadings.
[1] An oral agreement solely for the purchase of a business is not barred by the statute of frauds if it can be performed within one year.
[2] An oral agreement to purchase a business and establish an ongoing business is within the statute of frauds and unenforceable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the oral agreement alleged in count two is solely one for purchase, such agreement could be performed within one year and would not be barred by the statute of frauds”
Establishes the primary rule that oral purchase agreements performable within one year are not barred by the statute of frauds
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Bross alleged an oral agreement with appellees Dale Wallace and Robert Frady to purchase a restaurant and certain franchise rights from thir…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Oral Contract Enforceability cases and more on FLexlaw
PER CURIAM.
Appellant Jerrold A. Bross appeals an order granting judgment on the pleadings and dismissing with prejudice the action against appellees Dale Wallace and Robert Frady. We affirm the trial court’s ruling granting judgment on the pleadings except as to count two of the complaint.
The complaint, construed in the light most favorable to appellant, pleads in count two a cause of action for breach of an oral agreement between appellant and appellees to purchase from third parties a restaurant and certain franchise rights. If the oral agreement alleged in count two is solely one for purchase, such agreement could be performed within one year and would not be barred by the statute of frauds, section 725.01 of the Florida Stat utes (1991). See Yates v. Ball, 132 Fla. 132, 181 So. 341 (Fla.1937); De Ribeaux v. Del Valle, 531 So. 2d 992 (Fla. 3d DCA 1988); Byam v. Klopcich, 454 So. 2d 720 (Fla. 4th DCA 1984); Gulf Solar, Inc., v. Westfall, 447 So. 2d 363 (Fla. 2d DCA 1984); Ostman v. Lawn, 305 So. 2d 871 (Fla. 3d DCA 1974). However, if the parties intended to purchase the restaurant and franchise rights and to establish an ongoing business, the latter agreement would be within the statute of frauds and, consequently, unenforceable. See Yates v. Ball, supra; Khawly v. Reboul, 488 So. 2d 856 (Fla. 3d DCA 1986); Weinsier v. Soffer, 358 So. 2d 61 (Fla. 3d DCA) cert. denied, 365 So. 2d 714 (Fla.1978); Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So. 2d 518 (Fla. 3d DCA 1975). The parties’ intent is a factual matter which cannot be resolved by a motion for judgment on the pleadings.
We note that if appellant should prove a breach of an oral agreement to purchase the restaurant and any franchise rights, appellant’s damages would be limited to those damages flowing from the breach of that agreement and not from the breach of any alleged oral agreement to operate a business.
Accordingly, we affirm the order of the trial court granting appellees’ motion for judgment on the pleadings as to counts one, three and four. We reverse the trial court’s order granting the judgment on the pleadings as to count two and remand for proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED.
W. SHARP, PETERSON and DIAMANTIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Chase v. Lennon E. Bowen, III, 771 So. 2d 1181 (Fla. 5th DCA 2000)…Bowen, See Henshall v. Lowe, 657 So. 2d 6 (Fla. 2d DCA 1995); Allen v. Leybourne. . Wodonos v. Wodonos, 62 So. 2d 78 (Fla. 1952); Florida Farm Bureau General Ins. Co. v. Ins. Co. of No. America, 763 So. 2d 429 (Fla. 5th DCA 2000); Bross v. Wallace, 600 So. 2d 1198, 1199 (Fla. 5th DCA 1992). . This count asserted a third party beneficiary claim against Bowen based on legal malpractice in his representation of Reah, which frustrated Naomi’s inheritance under the will. The facts in this case do not fit the typi…
-
Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170 (M.D. Fla. 2005)…723 F.Supp. 1442, 1443 (M.D.Fla.1989) (Melton, J). 28 . First Realty Inv. Corp. v. Gallaher, 345 So.2d 1088, 1089 (Fla.3d DCA 1977). See also, Khawly v. Reboul, 488 So.2d 856, 858 (Fla. 3d DCA 1986); Bross v. Wallace, 600 So.2d 1198, 1199 (Fla. 5th DCA 1992); Ven-ditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1251, 1253 (Fla. 4th DCA 1982). 29 . Weinsier v. Soffer, 358 So.2d 61, 63 (Fla. 3d DCA 1978). See also, Khawly, 488 So.2d at 858; Br…1 / 2
Authorities Cited
- Yates v. Ball, 132 Fla. 132 (Fla. 1937)
- Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So. 2d 518 (Fla. 3d DCA 1975)
- Gulf Solar, Inc. v. Westfall, 447 So. 2d 363 (Fla. 2d DCA 1984)
- Khawly v. Evelyne Reboul and Jean Claude Reboul, 488 So. 2d 856 (Fla. 3d DCA 1986)
- Ostman v. Lawn, 305 So. 2d 871 (Fla. 3d DCA 1974)
- Gator Shoe Corp. & Gallagher Bassett Ins. Servs. v. Doriela Taborda, 488 So. 2d 856 (Fla. 1st DCA 1986)
- Sentry Ins. v. Est. of Robert F. Richards, 454 So. 2d 720 (Fla. 3d DCA 1984)
- de Ribeaux v. del Valle, 531 So. 2d 992 (Fla. 3d DCA 1988)
- Weinsier v. Soffer, 358 So. 2d 61 (Fla. 3d DCA 1978)