ARTHUR H. HERTZ AND MICHAEL S. BROWN, APPELLANTS,
v.
CARLOS SALMAN, ET AL., APPELLEES

Fla. 3d DCA | 1998-10-14
No. 98-11
Before JORGENSON, COPE and GERSTEN, JJ.
718 So. 2d 942 Florida District Court of Appeal, Third District (1998) Caution
Cited by 6 cases
Topics
Derivative Claims Breach Of Oral Contract Statute Of Frauds Fraud

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Arthur Hertz and Michael Brown, investors in a bank that came to be known as Terrabank, appeal from an order of summary judgment and an order dismissing, with prejudice, one count of a second amended complaint.1 We affirm.

The trial court was correct in ruling that the claim for breach of an oral contract was barred by the statute of frauds, section 725.01, Florida Statutes (1993). The record supports the trial court’s finding that the parties intended that the oral agreement was “not to be performed within the space of 1 year from the making thereof.” Id. See also Khawly v. Reboul, 488 So. 2d 856 (Fla. 3d DCA 1986) (holding that the parties’ intent as to the duration of an alleged oral contract controls for statute of frauds purposes).

The other claims brought by plaintiff are likewise barred, as they flow from the alleged oral contract, and are merely derivative. See Khawly, 488 So. 2d at 857 n. 1 (holding that -when a breach of contract action is barred by the statute of frauds, action for fraud cannot be brought indirectly and is also barred by the statute of frauds).

We find no merit in the remaining points on appeal.

AFFIRMED.

. Together, the two orders dispose of all claims brought by plaintiffs.

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Cited By

  • Conner v. The Walt Disney Co., 827 So. 2d 318 (Fla. 5th DCA 2002)
    …ponsibilities of the parties were to continue for at least twelve years. To the extent that Conner attempts to assert tort claims, they are likewise barred, as they flow from the alleged oral contract and are merely derivative. See Hertz v. Salman, 718 So. 2d 942 (Fla. 3d DCA 1998). We therefore conclude, as did the trial judge, that one or more of the statutes of frauds conclusively bar Conner’s action. AFFIRMED. GRIFFIN and SAWAYA, JJ., concur. . § 672.201, Fla. Stat. (1996). . § 672.206, Fla. Stat. (1…
  • Skylake Ins. Agency, Inc. v. NMB Plaza, LLC, 23 So. 3d 175 (Fla. 3d DCA 2009)
    …s for breach of contract and fraud were both barred by the statute of frauds. Id. at 857 n. 1, 859. That case has no application here, because in this case there is no violation of the statute of frauds. The landlord also relied on Hertz v. Salman, 718 So. 2d 942 (Fla. 3d DCA 1998). That case likewise was decided under the statute of frauds and is inapplicable here. The landlord argues alternatively that we should affirm the summary judgment on the fraud claim because as pled, the fraud count fails to state…
  • Browning v. Poirier, 113 So. 3d 976 (Fla. 5th DCA 2013)
    …e provision in the statute of frauds concerning agreements ‘not to be performed within the space of one year from the making thereof,’ it must be shown that neither party’s performance was intended to be complete within one year.”); Hertz v. Salman, 718 So. 2d 942, 942 (Fla. 3d DCA 1998) (“The record supports the trial court’s finding that the parties intended that the oral agreement was ‘not to be performed within the space of 1 year from the making thereof.’ ” (quoting section 725.01)); Fla. Pottery Stores…

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