Central Florida Tile Co. v. Sperry Rand Corp. , 1974 Fla. App. LEXIS 7420 ( 1974 )

JOHNSON, Judge.

Appellant seeks reversal of a final judgment dismissing with prejudice its complaint which sought damages for a breach of an oral lease agreement. The basis for the appellee's motion to dismiss was that the alleged agreement was an executory contract for more than one year and was within the terms of the statute of frauds, and therefore the agreement was unenforceable.

We have heard oral argument in this cause and have carefully examined the record on appeal and the briefs submitted by the parties. It is our conclusion that the complaint filed below by appellant clearly states a cause of action. When considering a motion to dismiss, the allegations of the complaint must be taken as true. Here, there are allegations in the complaint that appellee signed and delivered to appellant written memoranda embodying the terms and conditions of the oral agreement to lease; that appellant, at appellee’s request, executed, sealed and redelivered to appellee a formal lease agreement; that appellant, in reliance on said agreement, took certain actions pursuant to the agreement ; and that appellant made changes and improvements in fulfillment of its obligation to lease to appellee. Thus, even assuming the statute of frauds were applicable to the oral agreement, the allegations of appellant’s complaint raise sufficient factual questions as to state a cause of action and withstand a motion to dismiss. For example, the allegations of the complaint raise questions of fact as to whether the written memoranda were sufficient and authenticated so as to comply with the statute of frauds, whether the appellee may be liable for services under an implied contract theory and whether the acts performed by appellant were exclusively referable to the oral agreement so as to constitute part performance or give rise to grounds for restitution on appellant’s behalf.

For these reasons, we conclude that the trial court erred in dismissing appellant’s complaint and we reverse. This cause is remanded to the court below for reinstatement of the complaint and further proceedings thereon.

Reversed and remanded.

SPECTOR, Acting C. J., and DREW, E. HARRIS (Retired), Associate Judge, concur.