FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D22-1296

LT Case No. 2021-CA-018796

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THE CAPE, LLC and RIVERVIEW 

ALF OPERATOR,

Appellants,

v.

OCH-ZIFF REAL ESTATE ACQUISITIONS 

LP N/K/A SCULPTOR CAPITAL 

INVESTMENTS, LLC and RIVERVIEW 

BUYER, LLC,

Appellees.

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On appeal from the Circuit Court for Brevard County.

George T. Paulk, Judge.

Tucker H. Byrd, Scottie N. McPherson, and Andrew Domingoes, 

of Byrd Campbell, P.A., Winter Park, for Appellants.

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

Arda Goker, of Greenberg Traurig, P.A., Orlando, for Appellees.

September 15, 2023

KILBANE, J.,

The Cape, LLC and Riverview ALF Operator, LLC, 

(collectively “Appellants”), appeal an order granting a motion to 

dismiss on all counts of their five-count complaint in favor of
2

Och-Ziff Real Estate Acquisitions LP n/k/a Sculptor Real Estate 

Acquisitions, LP, and Riverview Buyer, LLC (collectively 

“Appellees”). 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 and memory 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 bond program 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., 161 So. 3d 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 brief 

and argue” specific points on appeal “constitutes a waiver of these 

claims”); Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th DCA 2002) 

(“A legal argument must be raised initially in the trial court by 

the presentation of a specific motion or objection at an 

appropriate stage of the proceedings.”). However, Appellants did 

request leave to amend in their written response to the motion to 

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 DCA 2018) (finding the issue preserved 

where “it was presented to the trial court in the plaintiff's written 

response in opposition to the motion to dismiss” although not 

discussed at the hearing (citing Tillman v. State, 471 So. 2d 32, 

35 (Fla. 1985))); see also Sparks v. Allstate Constr., Inc., 16 So. 3d 

161, 164 (Fla. 3d DCA 2009) (explaining that an additional 

objection “would have been an obviously futile gesture” (quoting 

Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982))). 

Accordingly, the grounds briefed provide an independent and 

sufficient ground for reversal, and this opinion follows.
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and Security Agreement (“Trust Indenture”) and a Loan 

Agreement.

In 2018, Appellants sought a buyer for the A Bonds 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 

proposed terms of the document, Appellees would purchase the A 

Bonds 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 

out a corporate 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 regard to any of its substantive provisions 

discussing the potential 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 affirmed in 

numerous emails and telephone calls, and in July 2018, 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 representative, 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, 

Appellees declared a default citing the fact that no definitive

agreement 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 breach of 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 in 

opposition and requested leave to amend.
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Because the Summary 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 unenforceable agreement 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 that the fraud in the 

inducement claim failed as a matter of law 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 

dismissed 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, 319

(Fla. 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 true and in 

a light most favorable to the plaintiff.” Id.

“As a general rule, Florida allows liberal pleading 

amendments unless it clearly appears that allowing the 

amendment would prejudice the opposing party, the privilege to 

amend has been abused, or the amendment would be futile.” 

ABC Liquors, Inc. v. Centimark Corp., 967 So. 2d 1053, 1057 (Fla. 

5th DCA 2007). “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 different legal 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)).
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A. Statute of Frauds

The trial court correctly concluded that 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 disagree.

Under Florida’s Banking Statute of Frauds, “[a] debtor may 

not maintain an action on a credit agreement unless the 

agreement is in writing, expresses consideration, sets forth the 

relevant terms and conditions, and is signed by the creditor and 

the debtor.” § 687.0304(2), Fla. Stat. (2021). This includes an 

“agreement by a creditor to take certain actions, such as entering 

2 As a threshold matter, we note that “applying the

choice-of-law clause to resolve the contract formation issue would 

presume the applicability of a provision before 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, 

1235 (Fla. 5th DCA 2004) (“[I]t is generally appropriate for a 

court in Florida, as a procedural issue, to determine the validity 

and enforceability of a forum selection clause despite a choice of 

law provision in the agreement.”). However, we do not address 

the choice-of-law issue at this stage in the proceedings because 

we agree with the trial court that under either Florida or New 

York law the Summary of Terms is not an enforceable agreement.

With no enforceable written agreement in place, we apply 

Florida law to Appellants’ breach of contract claims. See Shaps v. 

Provident Life & Acc. Ins. Co., 826 So. 2d 250, 254 (Fla. 2002) 

(“Under Florida’s conflicts of law rules, the doctrine of lex loci 

contractus directs that, in the absence of a contractual provision 

specifying governing law, a contract, other than one for 

performance of services, is governed by law of the state in which 

the contract is made.”); Prime Ins. Syndicate, Inc. v. B.J. Handley 

Trucking, Inc., 363 F.3d 1089, 1092–93 (11th Cir. 2004) (“The 

determination of where a contract was 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))).
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into a new credit agreement, forbearing from exercising remedies 

under prior credit agreements, or extending installments due 

under prior credit agreements.” § 687.0304(3)3., Fla. Stat. 

(2021). “A ‘loan modification agreement . . . is both an agreement 

which extends credit and which makes a financial 

accommodation,’ thus implicating the Banking Statute of 

Frauds.” Wells Fargo Bank, N.A. v. Richards, 226 So. 3d 920, 922 

(Fla. 4th DCA 2017) (alteration in original) (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 sufficient to enforce an agreement that would 

normally be subject to the statute of frauds. See J Square Enters. 

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 not also apply to the Bank Statute of Frauds”). Moreover, 

“[f]or purposes of the statute 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 

alteration in original) (quoting Cook v. Theme Park Ventures, 

Inc., 633 So. 2d 468, 471 (Fla. 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 

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.”).3 

Therefore, the trial court’s dismissal of Counts I, II and IV

without affording Appellants the opportunity to amend was error.

3 Even if 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 frauds if 

that performance is “unequivocally 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 is only

partial performance, “ ‘the partial 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”).
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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 of contract claims in 

this case are not failed, the fraud in the inducement claim 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 on certain 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 fraud in the inducement where 

it was based on the alleged intention of the defendant 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 for fraud and 

the remedies attendant to that particular tort are 

available. If there 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 Grande 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 no express or implied-in-fact contract, a party may 

recover under quasi-contract 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)). Unjust enrichment “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) the defendant accepts and retains the conferred 

benefit, and 3) under the circumstances it would be inequitable 

for the defendant to retain the benefit without paying for it.” 
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Duncan v. Kasim, Inc., 810 So. 2d 968, 971 (Fla. 5th DCA 2002). 

The benefit conferred must be a direct benefit. Griggs, 959 So. 2d 

at 331.

Appellants’ complaint 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 Appellees’ purchase of the A Bonds. The third-party 

bondholder representative subsequently 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’ unjust 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 distinguished MacMorris 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

not stand for the proposition 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 found 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 that “[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 WL 4248208, 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.
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Conclusion

We conclude that the trial court abused its discretion 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 futile.

Accordingly, we reverse the trial court’s order and remand 

this matter for further proceedings consistent with this opinion.

REVERSED and REMANDED.

EDWARDS, C.J., and HARRIS, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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