BERNICE L. DORSEY, INDIVIDUALLY, AS A MEMBER OF CHAR-LAR CIVIC ASSOCIATION, AND AS A NON-WATERFRONT REAL PROPERTY OWNER WITHIN CHAR-LAR ESTATE SUBDIVISION, PUTNAM COUNTY, FLORIDA, AND THAT CLASS OF PERSONS SIMILARLY SITUATED, AND CHAR-LAR CIVIC ASSOCIATION, INC., A FLORIDA NON-PROFIT CORPORATION, APPELLANTS,
v.
CHARLES H. H. BEHM, LAURA L. BEHM, WILLIAM W. EDMISTON, DOROTHY EDMISTON, R. B. RAULERSON, ELLEN RAULERSON AND BEVERLY WEIDENHOF, APPELLEES
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Appellants sought to declare their right to use a pier and boat basin in a subdivision based on alleged oral promises by appellees. The trial court granted appellees' motion for judgment on the pleadings, dismissing appellants' claims on grounds that the alleged oral easement was barred by the statute of frauds. The appellate court affirmed, finding no disputed material facts and proper application of the statute of frauds.
The court affirmed the judgment on the pleadings because: (1) there is no disputed issue regarding the boat basin, as the Grant of Easement clearly grants appellants that right; and (2) an oral promise to create an easement violates the statute of frauds and cannot be enforced, regardless of the oral representations alleged.
[1] A judgment on the pleadings is proper when the pleadings raise no disputed issues of fact.
[2] An oral promise to create an easement is barred by the statute of frauds.
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The court's holding that the alleged oral representations regarding pier use cannot be enforced under Florida law.
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Join FLexlaw to unlock all legal intelligenceThe Behms deeded property in Char-Lar Estates to Dorsey and allegedly made oral representations that non-waterfront owners would have exclusive use of…
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MILLS, Judge.
Appellants appeal from a judgment on the pleadings entered in favor of appellees in a declaratory judgment action. The issue here is whether the trial court erred in entering the judgment on the pleadings. It did not err and we affirm.
Appellants alleged in their complaint that the Behms (appellees) deeded a site in Char-Lar Estates to Dorsey (appellant) and prior to and subsequent to the transfer of the property to Dorsey orally represented to him that he as well as other nonwaterfront owners would be entitled to exclusive use of a pier and adjacent real property together with the boat basin and surrounding area. Attached to the complaint was a Grant of Easement which gave Dorsey the right to use the boat basin. Also attached to the complaint was a Quitclaim Deed To Pier which quitclaimed the Behms’ interest in a pier in Crescent Lake to the Edmistons, Raulersons and Weidenhof (appellees). Appellants sought a declaration of their right to use the pier and adjacent real property together with the boat basin and surrounding area because appellees had denied them these rights.
Appellees answered admitting the right of appellants to use the boat basin but denying their right to use the pier. They then moved for judgment on the pleadings which the trial court granted without giving its reasons. Although not pled, without objection, appellees argued orally and by written memorandum that the alleged oral promise to create an easement was barred by the statute of frauds.
Not only do appellees admit that appellants are entitled to use of the boat basin but the Grant of Easement clearly and unambiguously gives them this right, thus, there is no dispute on this issue.
Not only do the allegations of the complaint fail to describe the pier in question but an oral promise to create an easement violates the statute of frauds. Section 725.-01, Florida Statutes (1975), and Florida Real Property Practice I, page 584. There is no dispute on this issue. The pleadings raising no disputed issues, the court properly granted judgment on the pleadings.
The judgment is affirmed.
McCORD, C. J., concurs.
BOYER, J., dissents.
BOYER, Judge,
dissenting.
I respectfully dissent. In my view this is not a proper case for a judgment on the pleadings. See Bradham v. Hayes Enterprises, Inc., 306 So. 2d 568 (Fla.1st DCA 1975).
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The Moorings Ass'n, Inc. v. Tortoise Island Cmtys., Inc., 460 So. 2d 961 (Fla. 5th DCA 1984)…sferred except by a written instrument signed in the presence of two subscribing witnesses by the party creating, granting or conveying the easement. § 689.01, Fla.Stat. See Winters v. Alanco, Inc., 435 So. 2d 326 (Fla. 2d DCA 1983); Dorsey v. Behm, 356 So. 2d 345 (Fla. 1st DCA 1978). Also any agreement or promise constituting a contract for the sale of an easement, or some memorandum thereof, must be in writing and signed by the party to be charged to be legally enforceable. § 725.01, Fla.Stat. (the Statute…1 / 2
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Rich v. Arthur C. (Tony) Gulliver, 564 So. 2d 578 (Fla. 3d DCA 1990)…ar v. Lechlider, 135 Fla. 703, 185 So. 833 (1939); Fox v. Sails at Laguna Club Dev. Corp., 403 So. 2d 456, 458 (Fla. 3d DCA 1981); and (b) the alleged contract was never reduced to writing and was barred by the statute of frauds. See Dorsey v. Behm, 356 So. 2d 345 (Fla. 1st DCA 1978); De Lucca v. Flamingo Corp., 121 So. 2d 803 (Fla. 3d DCA 1960); § 689.01, Fla.Stat. (1989); see also Segovia Inv., Inc. v. Katogas, 364 So. 2d 838 (Fla. 3d DCA 1978). Third, the trial court properly ordered the defendant Arthur…
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- Wilda H. Bradham v. Hayes Enters., Inc., 306 So. 2d 568 (Fla. 1st DCA 1975)