WHARFSIDE v. Superior Bank

• Citation: 741 So.2d 542
• Decision Date: 07 July 1999
• Docket Number: No. 97-3474.,97-3474.
• Parties: WHARFSIDE AT BOCA POINTE, INC., a Florida corporation, Appellant, v. SUPERIOR BANK, a federal savings bank; and National Loan Investors, L.P., a Delaware limited partnership, Appellees.
• Court: Court of Appeal of Florida (US)

741 So.2d 542

WHARFSIDE AT BOCA POINTE, INC., a Florida corporation, Appellant, v. SUPERIOR BANK, a federal savings bank; and National Loan Investors, L.P., a Delaware limited partnership, Appellees.

No. 97-3474.

District Court of Appeal of Florida, Fourth District.

July 7, 1999.

Rehearing Denied October 12, 1999.

Philip M. Burlington of the Law Office of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.

Daniel S. Pearson and Scott B. Newman of the Law Offices of Holland & Knight LLP, West Palm Beach, and James K. Gardner of the Law Office of Neal, Gerber & Eisenberg, Chicago, for appellee Superior Bank.

George A. Vaka of the Law Office of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee National Loan Investors.

PER CURIAM.

Wharfside at Boca Pointe, Inc. ("Wharfside") appeals two final summary judgments, entered in favor of Superior Bank ("Superior") and National Loan Investors ("NLI"). We affirm.

Wharfside at Boca Pointe ("Project") is a commercial real estate project in Palm Beach County, Florida. In 1984 Wharfside borrowed money from Superior's predecessor, Lyons Savings and Loan Association ("Lyons"), the original construction lender for the Project. At that time, Wharfside, Lyons, and the principal contractor on the project, Inryco Construction ("Inryco"), were involved in extensive litigation regarding the project. In November of 1990, they entered into a settlement agreement, wherein they agreed to market and sell the Project to a third-party purchaser and distribute the net sales proceeds according to their percentage of ownership interests.

On December 30, 1992, Superior and Wharfside entered into a Purchase and Sale Agreement ("Purchase Agreement"), wherein Wharfside agreed to purchase Superior's 70% interest in the Project for $3.1 million dollars. The transaction was scheduled to close by March 30, 1993. Wharfside failed to close on that date. The parties began discussions about extending the closing date but never reached an agreement for extension.

Thereafter, Superior initiated the process of selling a large number of the assets in its loan portfolio, including Wharfside, through a sealed bid auction. On February 4, 1994, Fred Frankel, Wharfside's principal, wrote a letter to Superior's asset liquidation consultant, Tom Merriott, to express his opposition to the inclusion of the Project in the auction pool and to make an offer to purchase Superior's interest in the Project for $1.6 million. In its response letter, dated February 7, Superior rejected Wharfside's reduced offer. Subsequently, Superior assigned its interest in the Project to NLI, the successful bidder at the auction.

A few months later, Wharfside filed a complaint against Superior, asserting claims of breach of contract, fraud, tortious interference and conspiracy. According to the complaint, Wharfside and Superior reached an oral agreement during a telephone conversation on February 4, 1994 between Merriott and Frankel, which provided for a reduced purchase price of $1.6 million for Superior's interest in the Project and extended the closing date until completion of repairs to the Project. Later Wharfside amended the complaint, adding NLI as a defendant and seeking specific performance of the oral agreement which purportedly modified the Purchase and Sale Agreement.

Superior and NLI asserted the statute of frauds as an affirmative defense and moved for summary judgment. The trial court denied the motion, finding that the doctrine of partial performance removed the case from the statute of frauds. Subsequently, in August of 1996, Wharfside voluntarily dismissed the specific performance count of the amended complaint. Based on this change of circumstances, Superior and NLI moved for partial summary judgment on the ground that the counts for breach of oral contract and fraudulent inducement were barred by the statute of frauds. This time, the trial court granted the motion, reasoning that the dismissal of the specific performance count converted the action to one solely for damages, thereby rendering the part performance exception to the statute of frauds inapplicable. Accordingly, the court held that Wharfside's claims for breach of oral contract and fraud were barred by the statute of frauds.

Wharfside contends that the statute of frauds does not apply because the agreement does not involve an interest in real estate, but, rather, relates only to intangible personal property contract rights. Essentially, Wharfside argues that the contract at issue in this case, which is the Purchase Agreement between Superior and Wharfside, and its oral modification, did not constitute a contract for the sale of real property, because it did not involve the transfer of title between those parties. Wharfside describes Florida as a lien theory jurisdiction and cites several cases holding that unless a contract contains a provision for the transfer of title to the real property between the parties to the contract, it is not an agreement subject to the statute of frauds.¹ According to Wharfside, the Purchase Agreement herein did not involve the transfer of title, since title to the property, at all relevant times, was in the name of Wharfside at Boca Pointe, Inc. and never in the name of Superior Bank. Thus, the subject matter of the Purchase Agreement was not the sale of real property or any interest therein, but rather the sale of an "intangible property right" not governed by section 725.01, Florida Statutes.

An analysis of the subject matter of the Purchase Agreement and alleged oral modification does not lead us to a clear and absolute characterization of the interest being transferred. Although couched initially in terms of a sale of "all of the seller's right, title, and interest in, to and under the Loan Documents and Settlement Agreement along with all of its obligations, liabilities, duties and responsibilities thereunder" for the sum of $3.1 million, the Purchase Agreement of December 30, 1992 is essentially one for the sale of the seller's interests as a lender and foreclosing mortgagee in real property, i.e., the shopping center, which was the subject of the foreclosure action that was settled by the earlier Settlement Agreement. The principal, if not the only, rights of Superior under the "Loan Documents" and "Settlement Agreement", referred to in the initial description of the sale agreement, are the lender's interest as the foreclosing mortgagee in that real property.

While Superior had certain intangible, personal property rights under the Settlement Agreement and the Purchase Agreement, the primary...