Ostman v. Lawn, 74--22
| Decision Date | 31 December 1974 |
| Docket Number | No. 74--22,74--22 |
| Citation | 305 So.2d 871 |
| Parties | Walter OSTMAN, Appellant, v. Howard M. LAWN and Parkmobile, Inc., a Florida Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Pettigrew & Bailey and Eugene E. Stearns, Miami, for appellant.
Podhurst, Orseck & Parks, Miami, for appellees.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
This is an appeal by the plaintiff, Walter Ostman, from an adverse summary judgment as to one part of his complaint, and the resultant final judgment rendered against him.
A thorough recitation of the myriad facts presented in the record would serve no useful purpose in answering the legal question before this court. Therefore, suffice it to say, the action arose when the plaintiff, Ostman, filed his complaint alleging that the defendant, Howard M. Lawn, made false representations to him that he (Lawn) would employ Ostman for compensation of $100,000 per year for five years in order to deceive him and thereby elicit information from him. Ostman alleges that in reliance, he lost his job in California, sold his home in California and moved to Florida. The complaint is in three counts. Counts I and II allege an action for money damages caused by fraud and Count III was for quantum meruit. After extensive discovery, the defendant moved for summary judgment which was granted as to the charges of fraud on the basis of the affirmative defense that the action was barred by the statute of frauds. Ostman then voluntarily dismissed, without prejudice, the action for quantum meruit, and thereafter the court entered the final judgment in favor of the defendant.
The sole issue before this court is whether the statute of frauds precludes an action for fraud and deceit based on breach of an employment contract, which employment contract is not in writing and for a period of more than one year.
The appellant contends that this is a tort rather than a contract action and the statute of frauds is not applicable to a tort action, namely one sounding solely in fraud.
The appellee contends that the statute of frauds cannot be circumvented by suing for fraud when the action is predicated upon an oral agreement unenforceable under the statute of frauds.
The statute of frauds, § 725.01, Fla.Stat., provides in pertinent part:
'No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.'
The statute of frauds, then, bars any claim which requires as its gravamen, proof of a promise or agreement, orally made, when such promise or agreement is not to be performed within the space of one year from the making thereof. There is no distinction between an action ex contractu and an action ex delicto in this regard. See Dung v. Parker, 52 N.Y. 494 (Ct.App.) wherein it is stated at page 497 that:
'Whatever the form of action at law may be, if the proof of a promise or contract, void by the statute, is essential to maintain it, there can be no recovery.'
and at page 500 that:
'The plaintiff is compelled to make the void contract a part of his case in any form of action he may bring, and the statute stands as a barrier against recovery.'
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Topp, Inc. v. Uniden American Corp.
...of Frauds, and, as such, it is recommended that it be rejected. See Eclipse Med. Inc., 262 F.Supp.2d at 1345, citing Ostman v. Lawn, 305 So.2d 871 (Fla.3d Dist.Ct.App.1974). Assuming that Topp is alleging that Uniden America fraudulently induced it to enter a contract by making misleading s......
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Brody v. Bock, 93SC681
...from recovery based in fraud on the ground that the oral promise was made without the intention of performing it); Ostman v. Lawn, 305 So.2d 871, 873 (Fla.Dist.Ct.App.1974) (statute of frauds cannot be avoided by a suit for fraud based on oral representations); Lilling v. Slauenwhite, 145 A......
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Eclipse Medical v. American Hydro-Surgical
...from reformulating an oral contract as a misrepresentation for the. purpose of avoiding the Statute of Frauds. See Ostman v. Lawn, 305 So.2d 871 (Fla. 3d DCA 1974). The way' a plaintiff fashions a claim does not determine the applicability of the Statute. Because the Statute "bars any claim......
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Hager v. Venice Hosp., Inc.
...rule in Florida is that the statute of frauds may not be avoided by a suit for fraud based on oral representations. Ostman v. Lawn, 305 So.2d 871, 873 (Fla. 3d DCA 1974). There is no written contract to support Hager's allegations of fraud. The Court grants summary judgment to Defendants RA......