McIntosh v. Harbour Club Villas Condominium Ass'n

• Decision Date: 14 May 1985
• Docket Number: No. 84-1162,84-1162
• Parties: 10 Fla. L. Weekly 1206 Donald W. McINTOSH, Frances M. Farina, Robert W. Geyer, S. Nash, Edith Friedman and Herbert Spahn, and other persons similarly situated, Appellants, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, Shores Condominium Association, Inc., and Quayside Associates, Ltd., Appellees.
• Court: Florida District Court of Appeals

Page 1075

468 So.2d 1075

10 Fla. L. Weekly 1206

Donald W. McINTOSH, Frances M. Farina, Robert W. Geyer, S. Nash, Edith Friedman and Herbert Spahn, and other persons similarly situated, Appellants, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, Shores Condominium Association, Inc., and Quayside Associates, Ltd., Appellees.

No. 84-1162.

District Court of Appeal of Florida Third District.

May 14, 1985.

Ress, Gomez, Rosenberg & Howland and Sheldon Rosenberg, North Miami, for appellants.

Lapidus & Stettin and Richard L. Lapidus, Miami, for appellees.

Before HENDRY, NESBITT and FERGUSON, JJ.

PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of the appellees/defendants in an action in which appellants sought damages because they were denied the right to participate in the proceeds of a three million dollar settlement of a zoning case in which appellants claim to be parties in interest. ¹ Upon consideration of the record, briefs and arguments of counsel, we have concluded that material issues of fact remain, precluding the entry of a final summary judgment. Accordingly, the judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

NESBITT, Judge, specially concurring:

I agree with the majority that material issues of fact remain and that, therefore, the entry of a final summary judgment was error. It is my view, however, that this court should point out with more specificity where those issues exist to provide some guidance to the trial court and counsel on remand. It is for this purpose that I specially concur.

The general facts relevant to this appeal are set out in the decision rendered in the prior appearance of this case before this court. See McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982) (McIntosh I ). The plaintiffs are a group of individuals residing within the geographic area adjacent to Quayside, a real estate project. The plaintiffs joined together with two of the defendants herein, the Harbour Club Villas Condominium Association (Villas) and the Shores Condominium Association, Inc. (Shores), to fight a zoning variance authorized by the Metropolitan Dade County Commission (Commission) in favor of Quayside. The parties contributed money to a legal fund to pay the legal fees of appealing and having declared void the decision of the Commission. In addition to contributing to the legal fund, the plaintiffs herein undertook a number of activities to try to gain public support for their position. The attorneys whose services were engaged appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores, however, with none of the plaintiffs herein named as plaintiffs in those suits. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Shores' settlement involved property improvements while the Villas' settlement was in the amount of $3 million. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the plaintiffs herein could obtain zoning relief.

The plaintiffs filed a seven-count complaint against the Villas, the Shores, Quayside and the attorneys. The complaint was initially dismissed on the ground that the agreement from which the plaintiffs' cause of action arose was champertous. This court reversed that dismissal and ordered the complaint reinstated upon a holding that the agreement was not champertous on its face because the plaintiffs had an interest in the appeal of the zoning variance decision and were not merely strangers or intermeddlers. McIntosh I. After remand, the defendants filed a motion for summary judgment. The trial court found that no issues of material fact existed and entered final summary judgment as to all counts in favor of the defendants. The plaintiffs have appealed.

In the first count of their complaint, the plaintiffs seek damages from the Villas and the Shores for breach of contract. Contracts recognized at law have been divided into a number of categories. One such division involves the distinction between bilateral and unilateral contracts. A bilateral contract is usually defined as one founded upon mutual promises to do something in the future, in which the consideration of the one party is the promise on the part of the other, each party being both a promisor and a promisee. See 11 Fla.Jur.2d Contracts § 6 (1979) and authority cited. It is a general rule of contract law that in order to form a bilateral contract there must be mutuality of obligation. See generally 11 Fla.Jur.2d Contracts § 15 (1979) and cases cited. In the present case, mutuality is lacking. The plaintiffs have not alleged, and the undisputed facts are not susceptible to the inference, that the plaintiffs were contractually obligated to the defendants to contribute their money to the legal fund or their time to gaining public support. Accordingly, since there was no mutuality of obligation, there was no bilateral contract between the parties.

The doctrine of mutuality, however, does not apply to unilateral contracts. A unilateral contract is not based on mutual promises and it is said to lack mutuality at the outset. See generally 11 Fla.Jur.2d Contracts § 6 (1979) and cases cited. The factual allegations in the complaint along with the exhibits attached thereto and other material in the record raise genuine issues of material fact as to whether or not a unilateral contract exists in the present case. For instance, the plaintiffs may be able to prove to a jury's satisfaction that the Villas and the Shores promised to use every available legal recourse to have the Commission's zoning decision overturned if the plaintiffs contributed money to the legal fund and undertook other activity which might help the cause, the defendants' promise acting as offer and consideration to the plaintiffs and the plaintiffs' actions in contributing their money to the legal fund and their time to gaining public support acting as acceptance and consideration to the defendants.

Another division of contracts recognized at law distinguishes between express contracts and contracts implied in fact. It is often stated that the only difference between an express contract and one implied in fact is that in the former the parties arrive at their agreement by words and in the latter the agreement is arrived at by consideration of the parties' actions and conduct. 11 Fla.Jur.2d Contracts § 3 (1979). Although the plaintiffs have made a valiant effort to allege facts which might lead to an inference that an express bilateral contract was entered between the parties, such an inference does not withstand scrutiny when the pleadings are pierced pursuant to the motion for summary judgment. On the other hand, the pleadings, exhibits attached thereto and other record material do raise genuine issues of fact as to whether the plaintiffs can recover under the theory of contract implied in fact. See generally 11 Fla.Jur.2d Contracts §§ 228-35 (1979).

Accordingly, it was error for the trial court to enter summary judgment on the plaintiffs' count for breach of contract. I would emphasize, however, that this is in no way an expression on the merits of the plaintiffs' contractual claim. The plaintiffs still must prove all the facts necessary to establish contractual liability on the part of the defendants, including the mutual assent of the parties upon which all contracts recognized at law are based.

In the second count of their complaint, the plaintiffs state a cause of action against the Villas and the Shores in quasi contract, or contract implied in law. Unlike contracts recognized at law, quasi contracts are equitable in nature and do not rest upon the assent of the parties. A quasi contract is an obligation imposed by law on the grounds of justice and equity, usually to prevent unjust enrichment. See Nursing Care Services, Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980). See generally 11 Fla.Jur.2d Contracts § 236 (1979). Where money is paid by one party in contemplation of some action to be done by another, and the thing stipulated to be done is not done, an action will lie in quasi contract to recover the money paid. See 11 Fla.Jur.2d Contracts §§ 238-39 (1979) and cases cited.

Certainly, it is undisputed that some understanding existed between the parties in the present case that the Villas and the Shores would fight, on behalf of themselves and the plaintiffs, the Commission's zoning decision in favor of Quayside. The extent of the understanding as to how long the defendants would fight the decision (or whether they could settle), however, is not clear from the record before us. Genuine issues of fact exist as to the understanding between the parties and, thus, whether the plaintiffs can recover monies paid or for services rendered on a quasi contract theory. Accordingly, the entry of summary judgment for the defendants on the plaintiffs' quasi contract count was error. See 11 Fla.Jur.2d Contracts §§ 236-46 (1979).

In counts three and four of their complaint, the plaintiffs seek recovery against the Villas and the Shores for breach of a fiduciary duty arising from a joint venture and imposition of a constructive trust on the basis of unjust enrichment. ¹ Initially, the plaintiffs allege that a joint venture was entered into between themselves, the Villas, and the Shores for the purpose of maintaining legal proceedings to oppose the Quayside project. A mere allegation that a joint venture was created, however, is purely a legal conclusion and insufficient. Facts must exist which support such a conclusion. Kislak v. Kreedian, 95 So.2d 510, 514 (Fla.1957). The factual elements necessary for a joint venture to exist have been stated by the supreme court in Kislak:

It is an...