Affordable Homes, Inc. v. Devil's Run, Ltd., BF-333

• Decision Date: 21 February 1986
• Docket Number: No. BF-333,BF-333
• Citation: 483 So.2d 549,11 Fla. L. Weekly 477
• Parties: 11 Fla. L. Weekly 477 AFFORDABLE HOMES, INC., Appellant, v. DEVIL'S RUN, LTD., Appellee.
• Court: Florida District Court of Appeals

Page 549

483 So.2d 549

11 Fla. L. Weekly 477

AFFORDABLE HOMES, INC., Appellant, v. DEVIL'S RUN, LTD., Appellee.

No. BF-333.

District Court of Appeal of Florida,

First District.

Feb. 21, 1986.

Arthur G. Haller, Gainesville, for appellant.

John F. Roscow, III, of Scruggs & Carmichael, P.A., Gainesville, for appellee.

McCORD, GUYTE P., Jr. (Ret.), Associate Judge.

Affordable Homes, Inc. appeals from summary judgment on behalf of Devil's Run, Ltd. in Affordable's suit against it for breach of contract to sell land. We reverse.

This is not the first time these parties have been before this court on this contractual dispute. Briefly, Affordable alleged in its original complaint that Devil's Run sold lots to others which it was contractually obligated to sell to Affordable. Devil's Run countered that Affordable failed to comply with the time constraints established in the contract, to which Affordable responded that there had been an oral agreement to extend the time for performance. The lower court dismissed the complaint with prejudice, holding that the statute of frauds prevented such oral modification of the contract.

In Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982), we reversed, holding that, although the statute of frauds would prevent Affordable from establishing an orally modified contract, a separate theory of estoppel or waiver could be stated "if [Affordable] pleads that it detrimentally relied on an oral modification, such as an extension of the time of performance agreed to by [Affordable]." Affordable Homes at 680.

Affordable proceeded to file an amended complaint. With regard to the estoppel theory, it alleged that Devil's Run orally agreed to extend the time for performance, that there was a specific understanding of continued "phased" closings with no provision for accelerated closings and that it forbore to arrange for immediate closing because of Devil's Run's representations. In its answer, Devil's Run acknowledged the oral agreement but specifically denied the remaining allegations. It is apparent from the face of these pleadings that the facts alleged by Affordable to constitute estoppel were disputed by Devil's Run. Nothing could be more well established than the proscription against the entry of a summary judgment when genuine issues of material fact remain for determination. O'Quinn v. Seibels, Bruce and Co., 447 So.2d 369 (Fla. 1st DCA 1984).

We also note the presence in the record of a...