Wilcox v. Lang Equities, Inc., 91-1488

Decision Date05 November 1991
Docket NumberNo. 91-1488,91-1488
PartiesRobert C. WILCOX, as General Partner of Calvert Property, etc., et al., Appellant, v. LANG EQUITIES, INC., etc., et al., Appellee. 588 So.2d 318, 16 Fla. L. Week. D2799
CourtFlorida District Court of Appeals

Wilson E. Hodge, Miami, for appellant.

Lieberman, Haber and Dennis R. Haber, Miami, for appellee.

Before SCHWARTZ, C. J., and BARKDULL and NESBITT, JJ.

NESBITT, Judge.

Appellant owns and operates a Key Largo hotel. Appellee is a Florida corporation selling "diving vacation packages." Appellant claims that the two parties entered an oral agreement whereby appellee would sell customers vacation packages which included the price of the stay at appellant's hotel. Appellee was then to remit hotel fees to appellant. Appellee remitted amounts due pursuant to the agreement from October 1, 1987 through August 31, 1988. Appellant alleges that from September 1, 1988 through January 10, 1989, appellee collected $19,484.52 for hotel fees and never remitted the funds to appellant. Appellant sued for the net sum of $14,734.52, this amount being the fees less an advertising setoff. Appellee filed a motion to dismiss, claiming the action was barred by the statute of frauds, section 725.01, Florida Statutes (1989). Following denial of that motion, several months later appellee filed a motion for judgment on the pleadings, again alleging that the oral agreement was unenforceable because of the statute of frauds. After hearing, appellee's motion was granted. We reverse.

When appellee filed its motion for judgment on the pleadings, Fla.R.Civ.P. 1.140(c), the reason advanced as the basis for the motion was that the action was barred by the statute of frauds in that it was based on an oral contract. A motion for judgment on the pleadings is appropriate where the complaint fails to state a cause of action against the defendant or where the answer fails to state a defense or tender issues of fact. In considering such motion, all well-pleaded material allegations of the opposing party are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Venditti-Siravo v. City of Hollywood, 418 So.2d 1251, 1253 (Fla. 4th DCA 1982); see also Butts v. State Farm Mut. Auto. Ins. Co., 207 So.2d 73 (Fla. 3d DCA 1968); Wagner v. Wagner, 196 So.2d 453 (Fla. 4th DCA 1967); Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960). Applying this principle, we conclude that it was error to grant the motion and enter judgment.

Appellant's amended complaint stated a cause of action. The allegations of appellee's answer and the affirmative defense raised, for the purpose of the motion, were to be deemed false and ineffectual. See Venditti-Siravo, 418 So.2d at 1253. Furthermore, the defense was neither admitted nor established by appellant's complaint.

Section 725.01, Florida Statutes, provides:

No action shall be brought whereby ... to charge any person ... upon any agreement that is not to be performed within the space of 1 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...

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9 cases
  • Kleiman v. Wright
    • United States
    • U.S. District Court — Southern District of Florida
    • September 18, 2020
    ...the statute of frauds. See Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008); Wilcox v. Lang Equities, Inc., 588 So.2d 318, 320 (Fla. 3d DCA 1991); Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 366 (Fla. 2d DCA 1984); but see LynkUs Commc'ns, Inc. v. WebMD Corp.......
  • Browning v. Poirier
    • United States
    • Florida District Court of Appeals
    • March 8, 2013
    ...time exceeding one year. Hence, Browning's suit for breach of contract is not barred by the statute. See, e.g., Wilcox v. Lang Equities, Inc., 588 So.2d 318 (Fla. 3d DCA 1991) (holding that statute of frauds did not bar action by hotel owner to enforce agreement pursuant to which corporatio......
  • Browning v. Poirier
    • United States
    • Florida District Court of Appeals
    • November 8, 2013
    ...that “[o]nly if a contract could not possibly be performed within one year would it fall within the statute”); Wilcox v. Lang Equities, Inc., 588 So.2d 318, 320 (Fla. 3d DCA 1991) (contract that can possibly be performed within one year not within statute of frauds); De Ribeaux v. Del Valle......
  • Browning v. Poirier
    • United States
    • Florida Supreme Court
    • May 28, 2015
    ...the statute of frauds.See Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ; Wilcox v. Lang Equities, Inc., 588 So.2d 318, 320 (Fla. 3d DCA 1991) ; Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 366 (Fla. 2d DCA 1984) ; but see LynkUs Commc'ns, Inc. v. WebMD Cor......
  • Request a trial to view additional results

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