Jester v. Pawley , 245 So. 3d 859 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed January 24, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2641
Lower Tribunal No. 15-15660
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Christopher Jester and Denise Jester,
Appellants,
vs.
Carol Pawley,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Scott Alan Orth (Hollywood), for appellants.
Martinez Morales, Raul Morales and Aaron P. Honaker, for appellee.
Before LAGOA, EMAS and SCALES, JJ.
EMAS, J.
Christopher and Denise Jester seek review of the trial court’s order
dismissing, with prejudice, all claims against Carol Pawley.1 With the exception
of one count—for unjust enrichment—we affirm the order in its entirety.
As to the claims for breach of fiduciary duty, violations of the Florida Unfair
and Deceptive Trade Practices Act (FDUTPA, Chapter 501, Florida Statutes
(2016)), violation of sections 475.42(1)(e) and 475.25(1)(b), Florida Statutes
(2016) and for intentional infliction of emotional distress, we affirm the trial
court’s dismissal without further discussion.
As to the counts for negligent misrepresentation, fraud and rescission, and
fraud in the inducement, the trial court properly dismissed those claims against
Pawley as they are barred by the statute of frauds, section 725.01, Florida Statutes
(2016). See Canell v. Arcola Housing Corp., 65 So. 2d 849 (Fla. 1953); 940
Lincoln Road Assoc., LLC v. 840 Lincoln Road Enters., Inc., No. 3D16-2748 (Fla.
3d DCA Dec. 27, 2017); India Am. Trading Co. v. White, 896 So. 2d 859 (Fla. 3d
DCA 2005); Ashland Oil, Inc. v. Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972).
However, to the extent the trial court concluded that the statute of frauds
barred the unjust enrichment count pleaded by the Jesters against Pawley, this was
error, and we therefore reverse the trial court’s order dismissing that count with
prejudice.2 See Kolski ex rel. Kolski v. Kolski, 731 So. 2d 169, 172 (Fla. 3d DCA
1The amended complaint included counts against several other defendants, none of
whom are parties to this appeal.
2
1999); Ala v. Chesser, 5 So. 3d 715, 719-20 (Fla. 1st DCA 2009); Brace v.
Comfort, 2 So. 3d 1007 (Fla. 2d DCA 2008); Harrison v. Pritchett, 682 So. 2d 650
(Fla. 1st DCA 1996). We reject the additional arguments advanced by Pawley as a
basis for affirming the dismissal of the unjust enrichment count, as they require
consideration of matters beyond the four corners of the amended complaint and its
attached exhibits, and also present questions of fact unsuitable for resolution on a
motion to dismiss for failure to state a cause of action. See Santiago v. Mauna
Loa Inv., LLC, 189 So. 3d 752, 755 (Fla. 2016) (holding that when a trial court
“determines the sufficiency of a complaint to state a cause of action, it applies the
so-called ‘four corners rule,’” by which “the court’s review is limited to an
examination solely of the complaint and its attachments”); Winter v. Miami Beach
Healthcare Grp., Ltd., 917 So. 2d 973, 974 (Fla. 3d DCA 2005) (holding: “A trial
court, when considering a motion to dismiss for failure to state a cause of action,
“must look only to the four corners of the complaint including the attachments; and
the allegations contained therein should be taken as true without regard to the
pleader’s ability to prove them”) (quoting Coriat v. Global Assur. Group, Inc., 862
So. 2d 743, 743 (Fla. 3d DCA 2003)).
2 We express no opinion as to what effect, if any, provisions contained in the
parties’ contract may have on the Jesters’ unjust enrichment claim.
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We reverse the trial court’s order dismissing with prejudice the claim for
unjust enrichment against Carol Pawley. We affirm in all other respects the trial
court’s order of dismissal.
Affirmed in part, reversed in part, and remanded.
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