FRANK E. WALSH, III v. KIMBERLY ABATE, SUCCESSOR TRUSTEE OF THE 3388 BARROW ISLAND TRUST ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANK E. WALSH III,
Appellant,
v.
KIMBERLY ABATE, SUCCESSOR TRUSTEE OF THE
3388 BARROW ISLAND TRUST,
Appellee.
No. 4D21-1463
[March 23, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Gregory M. Keyser, Judge; L.T. Case No. 50-2021-CA-
000317-XXXX-MB.
James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman,
Berkowitz & Cohen, North Palm Beach, for appellant.
Kenneth M. Rehns of Ward Damon PL, West Palm Beach, for appellee.
LEVINE, J.
A real estate agent emailed an offer to purchase a home for $3.1 million
on behalf of “Greg Cohen as trustee.” The sellers wanted $3.4 million, and
the buyer agreed. A few days later, the sellers’ attorney sent Greg Cohen
an email stating, “Seller accepted a different offer.” Frank Walsh,
appellant, then filed a complaint for specific performance based on the
emails and text negotiations. The trial court granted the motion to
dismiss, finding in part that the complaint did not state a valid claim
because the contract was not fully executed as required by the statute of
frauds. The trial court also dissolved the lis pendens filed by appellant.
Appellant claims that the trial court erred in granting the motion to
dismiss and dissolving the lis pendens. We disagree. We find that the trial
court did not err, and as such, we affirm.
On December 30, 2020, a real estate agent emailed an offer to purchase
a home located in Jonathan’s Landing for $3.1 million with closing
occurring on January 19, 2021. The offer, which used a form approved by
the Florida Realtors and The Florida Bar, identified “Greg Cohen as
trustee” as the buyer. Cohen, as trustee, signed the offer. The offer
defined the effective date as “the date when the last one of the Buyer and
Seller has signed or initialed and delivered this offer or final counter-offer.”
The sellers’ agent replied via email that the sellers would only accept
the list price of $3.4 million. Less than an hour later, the buyer’s agent
responded that the buyer would “meet the Seller’s $3.4M with all other
terms remaining the same” and “a quick cash close.” The buyer’s agent
further stated, “Please have the Seller counter the offer on our contract at
$3.4M, sign and return and I will get you the contract fully executed
today.” The sellers’ agent responded via text message that the sellers
“accept the $3.4 million” and “ask to close 2/1.” The buyer’s agent texted
back, “Perfect and confirmed. Thank you!” Several days later, the sellers’
agent emailed the buyer’s agent, stating: “Please let the buyer know that
the seller thanks him for his patience and accepts $3.4 million.” The agent
reiterated that the sellers “would like to close 2/1/21.” A few days after
that, the sellers’ attorney emailed Greg Cohen that “Seller accepted a
different offer.”
Appellant then filed a complaint against the sellers for specific
performance, attaching the above emails and text messages. In a footnote,
the complaint acknowledged that Greg Cohen, as trustee, was identified
as the buyer in the proposed contract, but stated that he “was a mere
placeholder, and at all material times, Walsh was the sole party in interest
with respect to the purchase of the Property.” Appellant maintained that,
based on the emails and text messages between the agents, a binding
contract existed and that the sellers breached the contract, entitling
appellant to specific performance.
The sellers moved to dismiss the complaint on several grounds,
including that the purchase agreement was never executed, and the
essential terms, including the addendum, were not agreed upon in writing
or otherwise. The sellers also filed an emergency motion to dissolve the lis
pendens filed by appellant, arguing that no contract was ever formed.
The trial court entered an order granting the sellers’ motion to dismiss,
finding, among other things, that the contract was never fully executed as
required by the statute of frauds. 1 The trial court permitted appellant
1The sellers also argued in their motion to dismiss that appellant lacked standing
to seek specific performance because he was not a party to the contract and that
the sellers’ agent did not have authority to enter a contract on the sellers’ behalf.
The trial court agreed with the sellers that appellant lacked standing. Because
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fifteen days to file an amended complaint. After appellant declined, the
trial court entered a final judgment of dismissal. The trial court also
entered an order dissolving the lis pendens.
We review the dismissal of complaints with prejudice under the de novo
standard of review. Stein v. BBX Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th
DCA 2018). Further, “[t]o survive a motion to dismiss, a complaint must
allege ‘sufficient ultimate facts’ showing entitlement to relief.” Id. (citation
omitted). Finally, in considering a motion to dismiss, a trial court’s review
is limited to the four corners of the complaint including the attachments.
Swerdlin v. Fla. Mun. Ins. Tr., 162 So. 3d 96, 97 (Fla. 4th DCA 2014).
We find that the trial court did not err in granting the motion to dismiss
based on the statute of frauds.
The statute of frauds states:
No action shall be brought . . . upon any contract for the sale
of lands . . . 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 person by her or him thereunto
lawfully authorized.
§ 725.01, Fla. Stat. (2020).
Appellant seeks to obtain specific performance of a contract for the sale
of real property. The statute of frauds requires that (1) “the contract must
be a writing signed by the party against whom enforcement is sought,” and
(2) “the writing must contain all of the essential terms of the sale and these
terms may not be explained by resort to parol evidence.” Fox v. Sails at
Laguna Club Dev. Corp., 403 So. 2d 456, 458 (Fla. 3d DCA 1981).
Additionally, the statute of frauds “should be strictly construed to prevent
the fraud it was designed to correct.” Tanenbaum v. Biscayne Osteopathic
Hosp., Inc., 190 So. 2d 777, 779 (Fla. 1966).
In the present case, there was no written agreement signed by both
parties as required by the statute of frauds. See § 725.01, Fla. Stat.
Rather, the record reflects an initial offer signed by Cohen and thereafter
only unsigned text messages and emails exchanged between the buyer’s
and sellers’ agents. Significantly, the offer of purchase itself contemplated
the statute of frauds is dispositive, there is no need to consider the other grounds
alleged.
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a signed written agreement as it stated that the effective date of the
agreement would be “the date when the last one of the Buyer and Seller
has signed or initialed and delivered this offer or final counter-offer.”
Dispositively, the sellers did not sign the initial contract, and neither party
signed the modification of price and closing date.
Appellant also argues that the trial court erred in dissolving the lis
pendens, claiming the trial court applied an incorrect standard of proof.
An order dissolving a lis pendens is reviewed for abuse of discretion.
See Thomson v. Thomson, 751 So. 2d 103, 104 (Fla. 4th DCA 1999). “[A]
claim that the trial court used an incorrect legal standard or failed to
properly apply the correct legal standard” is reviewed de novo. Parker
Waichman LLP v. R.J. Reynolds Tobacco Co., 288 So. 3d 726, 728 (Fla. 4th
DCA 2019).
“A court must dissolve a lis pendens that is based on an unrecorded
document unless the proponent ‘establish[es] a fair nexus between the
apparent legal or equitable ownership of the property and the dispute
embodied in the lawsuit.’” Conseco Servs., LLC v. Cuneo, 904 So. 2d 438,
439 (Fla. 3d DCA 2005) (quoting Chiusolo v. Kennedy, 614 So. 2d 491, 492
(Fla. 1993)). “To establish a fair nexus requires a showing of a ‘good faith,
viable claim.’” Bergmann v. Slater, 922 So. 2d 1110, 1112 (Fla. 4th DCA
2006) (citation omitted). This “requires a little more than simply pleading
a theoretical nexus.” Nu-Vision, LLC v. Corp. Convenience, Inc., 965 So. 2d
232, 234 (Fla. 5th DCA 2007).
We find that the trial court applied the correct standard of proof in
determining whether to dissolve the lis pendens. Further, because the
trial court properly dismissed the complaint, it also properly dissolved the
lis pendens. The lis pendens statute provides that “when the action no
longer affects the subject property, the court shall control and discharge
the recorded notice of lis pendens as the court would grant and dissolve
injunctions.” § 48.23(3), Fla. Stat. (2020); see also Jameson v. Jameson,
163 So. 468, 468 (Fla. 1935) (finding that upon dismissal of the complaint,
the lis pendens must also be dissolved). The dismissal of the complaint
means the action no longer affects the property, mandating the dissolution
of the lis pendens.
We conclude that the trial court did not err in granting the motion to
dismiss and dissolving the lis pendens. We affirm.
Affirmed.
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WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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