Collier v. Brooks

Citation632 So.2d 149
Decision Date11 February 1994
Docket NumberNo. 92-642,92-642
Parties19 Fla. L. Weekly D373 Roger COLLIER, Appellant, v. Bolling BROOKS, Appellee.
CourtCourt of Appeal of Florida (US)

Jeffrey P. Whitton of Whitton & Patterson, Panama City, for appellant.

Clifford C. Higby of Bryant and Higby, Chartered, Panama City, for appellee.

BARFIELD, Judge.

Roger Collier appeals from a summary judgment against him as plaintiff in a suit for breach of contract and unpaid wages, the trial court having determined that his claim for money damages is barred by the statute of frauds. With regard to the breach of contract claim, the record before us demonstrates a factual dispute as to whether the agreement at issue is one "that is not to be performed within the space of one year from the making thereof," so as to make applicable the provision of section 725.01, Florida Statutes, 1 that "no action shall be brought" unless the agreement is in writing and signed by the party to be charged. We therefore reverse the summary judgment on the breach of contract claim and remand for further proceedings.

In November 1989, Collier filed an amended complaint against Bolling Brooks, alleging that the two of them had entered into an agreement in January 1986 for Collier to be general manager of Brooks' business, Jones Motor Company, in Graceville. According to the allegations of the complaint, the parties agreed that if Collier were successful in "reversing the decline" in the company's business, he would receive twenty-five per cent ownership in the company, and that under his management business did improve. The complaint further alleged that after Collier "had fully performed and successfully accomplished the goals specified in the aforementioned contract," Brooks "refused to transfer any ownership whatsoever" to him, and sought damages for breach of contract and unpaid wages.

Brooks filed a motion for summary judgment, alleging that Collier was suing the wrong defendant because his verbal agreement was with Jones Motor Company, not with Brooks, and asserting that any claims were barred by the Statute of Frauds, section 725.01, Florida Statutes. Attached to the motion for summary judgment was an affidavit in which Brooks swore that Jones Motor Company is a corporation with several stockholders, that Collier was paid $450 per week plus ten per cent of the net profit, and that the parties had agreed that after January 1987, if the company had profited under Collier's management, he would be given the opportunity to purchase capital stock from the stockholders, the amount and the price to be negotiated at that time. Brooks further swore that at no time during Collier's management did the company make a profit, and that by the express terms of the agreement, Collier's purchase of stock could not have been accomplished within one year.

Collier filed an affidavit in opposition to the motion, stating that in January 1986, "Bolling Brooks personally obligated himself to provide delivery of a portion of my payment for services rendered, to wit, 25% ownership of Jones Motor Company, contingent upon a reversal of a decline in business." Collier swore that at the time they entered into the agreement, Brooks represented that he owned fifty-one per cent of the stock in the company, and that the obligations under the contract "could have been, and were to have been, performed within one year."

The depositions of the parties indicated that Brooks was president of Jones Motor Company until the assets were sold in May 1989. Brooks testified that in January 1986, he and Collier agreed that Collier would come to work for the company as general manager, making $425 per week and ten per cent commission on the departments which were making money, and that "after a years (sic) employment if he had turned the business around and was making money then he would be offered to buy stock in Jones Motor Company, the amount and the price to be decided at that time." Brooks testified that, at the time of the agreement, he held twenty-five per cent of the company stock, A.D. Williams held twenty-five per cent, and the remainder was owned by several relatives. He also testified that the company had been losing money for the five years prior to the agreement, and that it lost money in each of the ensuing three years.

Collier testified in his deposition that he was employed by Brooks "representing Jones Motor Company," that he was paid in cash every week "by Jones Motor Company and Bolling Brooks," and that he had a verbal agreement with Brooks representing Jones Motor Company. When asked about Brooks' affidavit, Collier stated:

A. Mr. Brooks and I made a deal him representing Jones Motor Company of $450 per week plus 10 percent, plus several other things that aren't mentioned in this paragraph. I have a disagreement with that paragraph.

Q. With what do you disagree in that paragraph?

A. He offered me 25 percent of the business to come in there, he told me I could buy up the other 25 percent from Mr. A.D. Williams that he had 25 percent of the stock. He also said I could have two demos, and pay all my health insurance which I've already beat him in court on that.

Collier testified that he was supposed to get the twenty-five per cent of the business "within the first year" without payment of anything, even if the company lost money, and that Brooks told him he owned fifty-one per cent of the stock.

The trial judge issued an order granting the motion for summary judgment as to the wage claim, and denying it as to the breach of contract claim. Brooks filed an answer denying all the allegations of the complaint except that Collier was employed as general manager of Jones Motor Company, and raising as affirmative defenses that Brooks was not personally liable because the agreement was between Collier and Jones Motor Company and that the suit was barred by the statute of frauds. He counter-claimed against Collier on behalf of the stockholders of the company, alleging that if Collier were determined to be entitled to twenty-five per cent of the stock, then Collier would be legally obligated for twenty-five per cent of the losses the company had sustained since January 1986.

Collier denied the affirmative defenses and counter-claim, and filed a motion for judgment on the pleadings of the counter-claim. He also filed the affidavit of Bill Bell, an employee of Jones Motor Company from July 1987 to October 1988, who swore that Collier had said that he would be part owner of the dealership, and that Brooks had confirmed the fact.

Brooks filed a renewed motion for summary judgment, asserting that the only way to transfer an ownership interest in a corporation is by the exchange of securities or capital stock in the corporation, and that section 678.319, Florida Statutes, 2 provides that a contract for sale of securities is not enforceable unless in writing. At the hearing on the motion, Collier argued that even if the statute of frauds applied, the doctrine of part performance took the agreement out of the operation of the statute, citing a decision of the Fourth District Court of Appeal, Leavitt v. Garson. 3 Brooks cited a federal decision from the Eleventh Circuit Court of Appeal, Dwight v. Tobin, 4 for the proposition that under Florida law, the doctrine of part performance does not remove a contract from the statute of frauds for the purpose of seeking money damages, but would remove it in an equitable action for specific performance. The trial court's order stated:

... it would appear that the Defendant is entitled to a judgment as a matter of law in that Plaintiff's claim is barred by the Statute of Frauds.

Plaintiff's counsel, while not conceding the applicability of Florida Statutes Sec. 678.319, contended that if applicable, part or full performance by Plaintiff removed the parties' agreement from the Statute of Frauds.

Assuming for the purpose of the Defendant's motion that Plaintiff had fully performed his part of the bargain, under Florida law, the doctrine of part performance is not available in an action solely for damages at law. Since by Plaintiff's Amended Complaint no equitable relief is sought, a judgment for damages is the only relief sought and the position of the Plaintiff is not well taken. See Dwight v. Tobin, 5 FLW Fed. C1818 [947 F.2d 455 (11th Cir.1991) ] and the cases cited therein.

We reject the reasoning of the trial court and the arguments of the parties on appeal 5 to the extent they are predicated on the application of section 678.319 to this case, which involves an employment agreement, not a contract for the sale of investment securities under the Florida version of the Uniform Commercial Code. Having extensively reviewed the history of the Statute of Frauds from its enactment in England in the seventeenth century, including the various forms adopted by the individual states and the interpretations placed upon them by their respective jurisdictions, we find that we must reject Collier's arguments to the extent they rely on the doctrines of "part performance" and "full performance" as removing the agreement from the operation of section 725.01, Florida Statutes. 6

The English statute enacted in 1676, entitled "An Act for the Prevention of Frauds and Perjuries," declared that certain types of oral promises or agreements would not be enforceable. 7 Included was "any agreement that is not to be performed within one year of the making thereof." 8 Most American statutes of frauds follow the English statute in enumerating the classes of contracts required to be evidenced in writing in order to be enforceable, with some variations of wording. 9 Some jurisdictions tend toward restricting the operation of the statute by rigid construction, freely admitting and extending exceptions and distinctions supporting the enforceability of oral contracts, while other jurisdictions, commenting on the beneficial effects of the statute, tend to...

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