Conner, I, Inc. v. Walt Disney Co., 827 So. 2d 318 (Fla. 5th DCA 2002). · Go Syfert
Search
Conner, I, Inc. v. Walt Disney Co., 827 So. 2d 318 (Fla. 5th DCA 2002). Cases Citing This Book View Copy Cite
“generally, the statute of frauds is an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action.”
14 citation events (14 in the last 25 years) across 3 distinct courts.
Strongest positive: THE CAPE, LLC AND RIVERVIEW ALF OPERATOR vs OCH-ZIFF REAL ESTATE AQUISITIONS, LP N/K/A SCULPTOR CAPITAL INVESTMENTS, LLC AND RIVERVIEW BUYER, LLC (fladistctapp, 2023-09-15)
Top citers, strongest first. 9 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) THE CAPE, LLC AND RIVERVIEW ALF OPERATOR vs OCH-ZIFF REAL ESTATE AQUISITIONS, LP N/K/A SCULPTOR CAPITAL INVESTMENTS, LLC AND RIVERVIEW BUYER, LLC (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
generally, the statute of frauds is an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action.
discussed Cited as authority (quoted) Oj Commerce, LLC v. Ashley Furniture Indus., Inc.
S.D. Fla. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
to the extent that attempts to assert tort claims, they are likewise barred, as they flow from the alleged oral contract and are merely derivative.
cited Cited as authority (rule) Innova Investment Group, LLC v. Village of Key Biscayne
S.D. Fla. · 2020 · confidence medium
Fla. 2018) (quoting Conner, I, Inc. v. Walt Disney Co., 827 So. 2d 318, 319 (Fla. 5th DCA 2002)).
discussed Cited as authority (rule) B & C Investors, Inc. v. Vojak
Fla. Dist. Ct. App. · 2011 · confidence medium
“Because the sufficiency of a complaint is a matter of law, we review the matter de novo.” Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318, 319 (Fla. 5th DCA 2002) (citing Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)); see also Execu-Tech Bus.
discussed Cited as authority (rule) Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mortgage Corp.
S.D.N.Y. · 2003 · confidence medium
See Canell v. Arcola Housing Corp., 65 So.2d 849, 851 (Fla.1953) (noting that the statute of frauds also bars action seeking indirectly to enforce oral contracts, including actions for fraud and deceit, “even though the defendant at the time of making of the oral contract may have had no intention of performing it.” (quotations omitted)); Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318, 318 (Fla. Dist.Ct.App.2002) (dismissing negligent misrepresentation claim where oral contract was unenforceable); Broward Nat’l Bank of Fort Lauderdale v. Bethel, 341 So.2d 1012, 1013 (Fla.App.1977) (sa…
cited Cited "see" Myers v. Highway 46 Holdings, L.L.C.
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318 (Fla. 5th DCA 2002), review denied, 846 So.2d 1147 (Fla.2003). .
discussed Cited "see, e.g." Dixon v. COUNTRYWIDE FINANCIAL CORPORATION
S.D. Fla. · 2009 · signal: see also · confidence low
However, Florida courts consistently hold that the statute of frauds also serves to bar any claims that are “premised on the same conduct and representations that were insufficient to form a contract and are merely derivative of the unsuccessful contract claim.” Bankers Trust, 960 So.2d at 778 ; see also Mark Andrew of Palm Beaches Ltd. v. GMAC Commercial Mortgage Corp., 265 F.Supp.2d 366, 382 (S.D.N.Y. 2003) (holding that under Florida law, when banking statute of frauds prohibited plaintiff from enforcing an oral contract, claims for fraud and negligent misrepresentation seeking damages …
discussed Cited "see, e.g." LynkUs Communications, Inc. v. WebMD Corp.
Fla. Dist. Ct. App. · 2007 · signal: see also · confidence medium
LynkUs's argument that a claim for fraud cannot be barred by the statute of frauds is refuted by Canell v. Arcola Housing Corp., 65 So.2d 849, 851 (Fla. 1953), where the court stated that a suit for "damages for fraud and deceit" was "simply an attempt in an indirect manner to obtain damages for breach of the contract." The court held that under the statute of frauds, "`an action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.'" Id. (…
discussed Cited "see, e.g." Bankers Trust Co. v. Basciano
Fla. Dist. Ct. App. · 2007 · signal: see also · confidence low
See Mark Andrew of Palm Beaches Ltd. v. GMAC Commercial Mortgage Corp., 265 F.Supp.2d 366, 382 (S.D.N.Y. 2003) (holding that under Florida law, when statute of frauds prohibited plaintiff from enforcing an oral contract, claims for fraud and negligent misrepresentation seeking damages based on same conduct and representations are merely derivative of claim for breach of contract and are prohibited); see also Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318 (Fla. 5th DCA 2002) (dismissing negligent misrepresentation claim where oral contract was unenforceable).
Retrieving the full opinion text from the archive…
CONNER, I, INC., Appellant,
v.
The WALT DISNEY COMPANY, etc., et al., Appellee.
5D01-1817.
District Court of Appeal of Florida, Fifth District.
Sep 13, 2002.
827 So. 2d 318
Orfinger.
Cited by 9 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: S.D. Florida (1)

J. Wayne Crosby of J. Wayne Crosby, P. A., Orlando, for Appellant.

David L. Evans of Mateer & Harbert, P. A., Orlando, for Appellee.

ORFINGER, R. B., J.

Conner, I, Inc. sued the Walt Disney Company and Walt Disney World Company (collectively "Disney"), alleging breach of contract, breach of a joint venture agreement, intentional misrepresentation, negligent misrepresentation, and breach of fiduciary duty. On Disney's motion, the trial court dismissed the action with prejudice, concluding that Conner's claims were barred by the statute of frauds. This appeal followed. We affirm.

In its amended complaint, Conner alleged that Disney agreed to enter into a joint venture with Conner, the purpose of which was to replace and operate approximately 400 manufactured housing units located at Disney's Fort Wilderness development. Conner alleged that it was to design, purchase, and install the housing units at Fort Wilderness and then lease the units to Disney for a period of not less than twelve years. Conner also alleged that Fort Wilderness was to be operated[*319] as a joint venture, with both parties sharing in the development and operation of the project. While the parties had numerous meetings, and allegedly made various oral commitments, all of which Conner claims it could have performed within twelve months, no written agreements were entered into. Disney eventually developed Fort Wilderness without Conner's participation.

Florida has several statutes of frauds, each dealing with a different type of commercial transaction. Any agreement for the sale of goods for more than $500,[1] for the sale of personal property other than goods for a price of more than $5,000,[2] or for the lease of goods for lease payments in excess of $1,000,[3] must be in writing to be enforceable. Under the express terms of these statutes, a writing is required regardless of when performance can be completed. One or more of these statutes would bar Conner's claims depending on how one characterizes the transaction. Similarly, if Conner's business arrangement with Disney is construed as involving the sale or lease of real property, it is clear that it was intended to last more than one year, and is therefore barred under section 725.01, Florida Statutes (1996).

In ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of the complaint as true and in a light most favorable to the plaintiff. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). Because the sufficiency of a complaint is a matter of law, we review the matter de novo. Id. Generally, the statute of frauds is an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action. Collins v. Citrus Nat'l Bank, 641 So.2d 458, 459-60 (Fla. 5th DCA 1994) (citing Evans v. Parker, 440 So.2d 640 (Fla. 1st DCA 1983)).

Conner asserts that its performance could have been completed within one year, and, thus, its actions are not barred by the statute of frauds. That argument fails because with the exception of section 725.01, the requirement of a written agreement is based on the price of the goods sold or leased, not the time of performance. Only section 725.01 bars enforcement of an unwritten agreement if it cannot be performed within one year from the time the agreement was made. See Florida Pottery Stores of Panama City, Inc. v. Am. Nat'l Bank, 578 So.2d 801, 804 (Fla. 1st DCA 1991). Here, the complaint shows that the development project and the associated responsibilities of the parties were to continue for at least twelve years.

To the extent that Conner attempts to assert tort claims, they are likewise barred, as they flow from the alleged oral contract and are merely derivative. See Hertz v. Salman, 718 So.2d 942 (Fla. 3d DCA 1998). We therefore conclude, as did the trial judge, that one or more of the statutes of frauds conclusively bar Conner's action.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

1 § 672.201, Fla. Stat. (1996).
2 § 672.206, Fla. Stat. (1996).
3 § 680.201(1), Fla. Stat. (1996).