## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
Case No. 5 D 2 2

- 1296 LT Case No. 2021

- CA

- 018796

_____________________________

T HE C APE , LLC and R IVERVIEW A LF O PERATOR ,
Appellant s ,

v.

O CH

- Z IFF R EAL E STATE A CQUISITIONS LP N / K / A S CULPTOR C APITAL I NVESTMENTS , LLC and R IVERVIEW B UYER , LLC

,
Appellee s

.

_____________________________

On appeal from the Circuit Court for Brevard County

. George T. Paulk , Judge

.
Tucker H. Byrd, Scottie N. McPherson, and And rew Domingoes, of Byrd Cam pbell, P.A.

, Winter Park, for Appellant s

.
Kimberly S. Mello, I. William Spivey, I I, Colin S. Baker

, and Arda Goker, of Greenberg Traurig, P.A.

, Orlando, for Appellee s

.

September 15 , 2023

K ILBANE , J.,

The Cape, LLC and Riverview ALF Operator, LLC, (col l ec tiv ely “Appellants”), appeal an order granting a motion to dismiss on all counts of their five

- count complaint in favor of2

Och

- Ziff Real Estate Acquisitions LP n/k/a Sculptor Real Estate Acquisition s, LP, and Riverview Buyer, LLC (collectively “Appelle e s” ). Because the trial court abused its discretion when it dismissed the entire complaint with prejudice without affording Appellants an opportunity to amend, we reverse. 1

Facts In 2014, Appellants began the development of a 120

- unit assisted living an d m emo ry care facility in Palm Bay, Florida (“the Project”). To meet their financing needs, Appellants borrowed $24,910,000.00 in First Mortgage Revenue Bonds Series 2014A (“the A Bonds”) in addition to other bonds borrowed through a tax

- exempt municipal b on d p rogram that the City of Palm Bay sponsored. Among other documents related to the bonds, Appellants were bound by the terms of a Trust Indenture

1 Because Appellants did not request relief pursuant to Florida Rule of Civil Procedure 1.190(a) or our precedent in Unrue v . Wells Fargo Bank, N.A. , 16 1 So

. 3 d 536 (Fla. 5th DCA 2014), they waived the right to seek reversal based on leave to amend once as a matter of course. See Coolen v. State , 696 So. 2d 738, 742 n.2 (Fla. 1997) (explaining that the “failure to fully brie f and argue” specific points o n ap p ea l “constitutes a waiver of these claims”); Keech v. Yousef , 815 So. 2d 718, 719 (Fla. 5th DCA 200 2) (“A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at a n appropriate stage of the p r oce e di ngs.”). However, Appellants did request leave to amend in their written response to the motion t o dismiss, and the trial court’s order explained repeatedly that amendment would be futile. See Owens v. Corrigan , 252 So

. 3d 747, 749 n.3 (Fla. 4th DC A 20 1 8) (finding the issue p r e se r v ed where “it was presented to the trial court in the plaintiff's writ ten response in opposition to the motion to dismiss” although not discussed at the hearing (citing Tillman v. State , 471 S o. 2d 32, 35 (Fla. 1985))); see al s o Sparks v. Allstate Const r ., Inc. , 16 So. 3d 161, 164 (Fla. 3d DCA 2009) (explaining that an additi onal objection “would have been an obviously futile gesture” (quoting Webb v. Priest , 413 So. 2d 43, 46 (Fla. 3d DCA 1982 )) ). Accordingly, the grounds b ri e fe d provide an independent and sufficient ground for reversal, and this opinion follows.3

and Security Agreement (“Trust Indenture”) and a L oan Agreement.

In 2018, Appellants sought a buyer for t he A B onds who would restructure them on more favorable terms. In accordance with an expressed mutual interest, in June 2018, Appellees sent Appellants a “Summary of Terms” document. Based on the

pr oposed terms of the document, Appellees would purchase t he A B onds and reissue them so that Appellants could continue to operate the Project. In addition, Appellees would not enforce certain provisions of the Trust Indenture and Loan Agreement that would trigger a default. In return, Appellants would take

ou t a cor porate loan and pay the current bondholder representative $1,000,000.00 to subsidize Appellees’ purchase of the A Bonds. By its own terms, however, the Summary of Terms

was non

- binding with reg ard to any of its substantive provisions discussing the po t ent ial purchase and modification of the A Bonds unless and until a definitive agreement could be reached subject to certain conditions and due diligence.

Appellants contended that the deal was aff irmed in numerous emails and telephone calls, and in Ju l y 2 018 , they fully performed their end of the deal. They alleged that they took out the corporate loan as contemplated in the Summary of Terms to subsidize Appellees’ purchase of the A Bonds and paid the million

- dollar premium to the then

- bondholder repr e se n tat ive, a third

- party. Appellees subsequently purchased the A Bonds from the third

- party and became the bondholder representative. However, instead of reissuing and modifying the A Bonds, Appelle es declared a default citing the fact that no definitiv e

a g ree ment was in place.

In March 2021, Appellants filed a five

- count complaint against Appellees. Count I alleged a breach of contract; Count II alleged a breach of contract implied

- in

- fact; Count III alleged fraud in the inducement; Count IV alleged b r ea c h o f contract based on the Trust Indenture and Loan Agreement; and Count V alleged unjust enrichment. In April 2021, Appellees filed a dispositive motion to dismiss. Appellants filed a response i n opposition and requested leave to amend.4 Because the Su m mar y of Terms included a choice

- of

- law provision purporting to make New York law controlling, the trial court analyzed the breach of contract claims in light of both Florida and New York law. The court found that the Summary of Terms was an unenforcea b le agr eement to agree. Additionally, the court found that no amendment to the breach of contract claims would make the alleged contract satisfy the statute of frauds. The court further concluded tha t the fraud in the inducement claim failed as a matter o f l aw because it was derivative of a failed breach of contract claim. Finally, the court found that Appellants’ unjust enrichment claim would never be able to satisfy the direct benefit requirement.

In sum, the trial court granted Appellees’ motion and d is m iss ed the entire complaint with prejudice without affording Appellants an opportunity to amend. This appeal followed.

Analysis The sufficiency of a complaint is a matter of law reviewed de novo. Conner, I, Inc. v. Walt Disney Co. , 827 So. 2d 318, 31 9 ( F la. 5th DCA 2002) (citing Fox v. Pro. Wrecker Operators of Fla., Inc. , 801 So. 2d 175, 178 (Fla. 5th DCA 2001)). “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 t ru e an d in a light most favorable to the plaintiff.” Id

. “As a general rule, Florida allows liberal plead ing amendments unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or t he ame ndment would be futile.” ABC Liquors, Inc. v. Centimark Corp. , 967 So. 2d 1053, 1057 (Fla. 5th DCA 2 007). “Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a differe n t l ega l theory, dismissal with prejudice is an abuse of discretion.” Dennehy v. Srinagesh , 345 So. 3d 962, 964 (Fla. 5th DCA 2022) (quoting Kapley v. Borchers , 714 So. 2d 1217, 1218 (Fla. 2d DCA 1998)).5 A. Statute of Frauds The trial court correctly c o nc luded th at the Summary of Terms, without more, was an unenforceable agreement to agree. 2 However, the court found that amending the pleadings would be futile because no amendment would make the alleged contract satisfy the statute of frauds. We disagr e e.

Unde r F lorida’s Banking Statute of Frauds, “[a] debtor may not maintain an action on a c redit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the deb t or .” § 687.0304(2), Fla. Stat. (2021). This includes an “agreement by a credit or to take certain actions, such as entering

2 As a th reshold matter, we note that “applying the choice

- of

- la w clause to resolve the contract formation issue would

presum e the applicability of a provision b ef o re its adoption by the parties has been established.” See Fridman v. 1

- 800 Contacts, Inc. , 554 F. Supp. 3d 1252, 1259 (S.D. Fla. 2021); see also Golden Palm Hosp., Inc. v. Stearns Bank Nat’l Ass’n , 874 So. 2d 1231, 1 235 (F la. 5th DCA 2004) (“[I]t is ge ne r al ly appropriate for a court in Florida, as a procedural issue, to determine the validity and e nforceability of a forum selection clause despite a choice of law provision in the agreement.”). However, we do not addre ss the choice

- of

- law issue at this s ta g e in the proceedings because we agree with the trial court that under either Florida or New Yor k law the Summary of Terms is not an enforceable agreement.

With no enforceable written agreement in place, we apply Flor ida la w to Appellants’ breach of c on tr a ct claims. See Shaps v. Provident Life & Acc. Ins. Co. , 826 So. 2d 250, 254 (Fla. 2002) (“Unde r Florida’s conflicts of law rules, the doctrine of lex loci
contractus directs that, in the absence of a contractual prov ision specifying governing law, a co nt r ac t, other than one for performance of services, is governed by law of the state in which the c ontract is made.”); Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc. , 363 F.3d 1089, 1092

– 93 (11th Cir. 2004) (“T he det ermination of where a contra ct w a s executed is fact

- intensive, and requires a determination of ‘where the last act necessary to complete the contract [wa]s done.’” (alteration in original) (quoting Pastor v. Union Cent. Life Ins. Co. , 184 F. Supp. 2d 1301, 1305 (S.D. Fla. 2002))).6

into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due

u nde r p rior credit agreements.” § 687.03 04(3)3., F la. Stat. (2021). “A ‘loan modifi cation agreement . . . is both an agreement which extends credit and which makes a financial accommodation,’ thus implicating the Banking Statute of Frauds.” Wells Fargo B ank

, N .A. v. Richards , 226 So. 3d 920, 922 (Fla. 4th DCA 2017) (alteration in origin al) (quoting Vargas v. Deutsche Bank Nat’l Tr. Co. , 104 So. 3d 1156, 1168 (Fla. 3d DCA 2012)).

However, full performance by one party with acceptance by the other party is su f fi cient to enforce an agreement that would normally be subject to the statute of frauds. See J Square Enter s

. v. Regner , 734 So. 2d 565, 566 (Fla. 5th DCA 1999) (agreeing that “[t]here is no logical reason . . . why the full performance doctrine should n o t al so apply to the Bank Statute of Frauds”). Moreover, “[f]or purposes of the st atute of frauds, several writings . . . may be aggregated to satisfy the statute.” Kolski ex rel. Kolski v. Kolski , 731 So. 2d 169, 171

– 72 (Fla. 3d DCA 1999) (first altera t i on i n original) (quoting Cook v. Theme Park Ventures, Inc. , 633 So. 2d 468, 471 (F la. 5th DCA 1994)). Consequently, the statute of frauds did not conclusively bar Appellants’ breach of contract claims. See Conner, I , 827 So. 2d at 319 (“Generally, the

s t at ut e of frauds is an affirmative defense that cannot be raised in a motion to dis miss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action.”). 3 Therefore, the trial court’s dismissal of Counts I, II an d IV

w ithout affording Appellants the opportunity to amend was error.

3 E ve n i f we were to apply New York law, we would reach the same result. Under New York law, it is well settled that partial performance of an oral agreement may be deemed sufficient to remove an agreement from the statute of fr auds if that performance is “u ne q ui vocally referable” to the alleged oral agreement. Bordeau v. Oakley , 585 N.Y.S.2d 623, 625 (1992); see also Eujoy Realty Corp. v. Van Wagner Commc’n, LLC , 22 N.Y. 3d 413, 425

– 26 ( N.Y. 2013) (explaining that where there i s only partial performance, “ ‘th e p ar t ia l performance [must be] unequivocally referable’ to the alleged oral modification” and that “[t]his analysis has also been applied to the statute of frauds and its codification at General Obligations Law § 5

– 703”).7 B. Fraud in the Inducement The trial court dismissed Appellants’ fraud in the inducement claim as being merely derivative of a failed claim for breach of contract. However, as the breach o f co ntract claims in this case are not failed, the fraud in the inducement clai m is not merely derivative.

Additionally, Florida courts have recognized that a fraud in the inducement claim may be brought where the party makes an oral promise

— contingent o n ce rt ain circumstances

— and the promisor has no intention to act on that promise. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc. , 728 So. 2d 297, 304

– 05 (Fla. 1st DCA 1999) (holding that the trial court wrongfully dismissed a claim for fr au d in the inducement where it was based on the alleged intention of the defend ant not to perform its contractual obligations). As we have explained:

If a fraud is perpetrated which induces someone to enter into a contract, there is a cause of action f or f ra ud and the remedies attendant to that particular tort are available. If th ere is no fraud inducing someone to enter into a contract, but the contract is breached, the cause of action sounds in contract and contract remedies are available.

La Pesca G ra nd e Charters, Inc. v. Moran , 704 So. 2d 710, 712 (Fla. 5th DCA 1998). Because Appellants may be able to support their fraud in the inducement claim, dismissal of Count III without granting an opportunity to amend was error.

C. Unjust Enrichment If there is n o express or implied

- in

- fact contract, a party may recover under quasi

- contra ct or unjust enrichment. Baron v. Osman , 39 So. 3d 449, 451 (Fla. 5th DCA 2010) (citing Am. Safety Ins. Serv., Inc. v. Griggs , 959 So. 2d 322, 331 (Fla. 5th DCA 2007)). Unju st e nr ichment “is an obligation created by the law to remedy the unjust retention of a benefit conferred by another.” Id . The elements of unjust enrichment are: “1) the plaintiff conferred a benefit on the defendant, who has knowledge of the benefit, 2) th e de fendant accepts and retains the conferred benefit, and 3) under the circums tances it would be inequitable for the defendant to retain the benefit without paying for it.”8

Duncan v. Kasim, Inc. , 810 So. 2d 968, 971 (Fla. 5th DCA 2002). The benefit co nf

er re d must be a direct benefit. Griggs , 959 So. 2d at 331.

Appellants’ complai nt alleged that they took out a loan and paid $1,000,000.00

— as contemplated in the Summary of Terms

— to the then

- bondholder representative for the sole purpose of subsidizing A pp el le es ’ purchase of the A Bonds. The third

- party bondholder representative subs equently sold the A Bonds to Appellees. However, the trial court found that these circumstances did not satisfy the direct benefit requirement, and as a result, Appellants’ u nj us t enrichment claim failed. The court relied on Virgilio v. Ryland Group , 680 F.3d 1329, 1337 (11th Cir. 2012), to support its conclusion. We find that the trial court’s reliance on Virgilio is misplaced.

In Virgilio , the Eleventh Circuit distinguish ed M ac Morris v. Wyeth, Inc. , wherein one party conferred a benefit on another party through an intermediary. 680 F.3d at 1337 (citing MacMorris v. Wyeth, Inc. , No. 2:04

– cv

– 596

– FTM

– 29

– DNF, 2005 WL 1528626 (M.D. Fla. June 27, 2005)). As such, Virgilio does

n ot s tand for the proposit ion that a direct benefit cannot pass through an intermediary. See Coffey v. WCW & Air, Inc. , No. 3:17

- CV

- 90

- MCR

- CJK, 2018 WL 4154256, at *9 (N.D. Fla. Aug. 30, 2018) (“[E]ven after Virgilio was decided, the Eleventh Circuit has f ou nd that a plaintiff may have conferred a ‘direct benefit’ on a defendant through an intermediary where, like in MacMorris

, where the defendant directly profited from and [was] involved in depriving the plaintiff of the benefit at issue.”).

We agree tha t “[ i] t would not serve the principles of justice and equity to preclude an unjust enrichment claim merely because the ‘benefit’ passed through an intermediary before being conferred on a defendant.” See Montoya v. PNC Bank, N.A. , No. 14

- 20474

- CIV, 2014 W L 42 48 208, at *13 (S.D. Fla . Aug. 27, 2014) (alteration in original). Therefore, Appellants’ claim alleging unjust enrichment satisfies the direct benefit requirement and dismissal of Count V was error.9 Conclusion We conclude that the trial court abused it s di scretion when it dismissed Appellants’ complaint with prejudice. Nothing in the record suggests that allowing Appellants to amend their complaint would prejudice the opposing party

, that the privilege has been abused

, or that amendment would be fut i le.

Ac cordingly, we reverse the trial court’s order and remand this matter for further proceedings consistent with this opinion.

R EVERSED and R EMANDED

.

E DWARDS , C.J.

, and H ARRIS , J., concur

.

_____________________________

N ot final until disposit ion of a ny t im ely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

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