DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WASHINGTON A. SENA,

Appellant,

v.

CARLOS PEREIRA,

Appellee.

No. 4D14-2790

[November 12, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. 13-21957 (25).

Loretta Bangor of the Law Office of Loretta Bangor, Lake Worth, for 

appellant.

Howard W. Poznanski, Boca Raton, for appellee.

CIKLIN, C.J.

Washington A. Sena appeals the summary final judgment entered 

against him which the trial court based, among other defenses, on res 

judicata. We find that the court erred in granting summary judgment, but 

only as to Sena’s underlying claim for unjust enrichment.

This appeal arises out of a dispute over real property. Carlos Pereira

(“the landlord”) owned the property, which Sena (“the tenant”) rented 

pursuant to a written lease. The parties entered into an accompanying 

agreement, the “Contract for Option.” which provided terms under which 

the tenant could exercise an option to purchase the property. 

After the written lease expired in June 2011, the landlord brought a 

suit to evict the tenant and for damages. He alleged that the tenant was a 

holdover tenant, had failed to pay the double rent required by statute or 

the increased rent the landlord had requested, and that the landlord had 

terminated the month-to-month tenancy by sending written notice to the 

tenant.

Among his affirmative defenses, the tenant alleged that the landlord’s 

actions constituted a breach of “the Contract for Option, which was an 
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essential part of the lease transaction between the parties.” The tenant

further asserted the following:

The Contract for Option between [the landlord] and [the 

tenant][ ] allows for [the tenant] to purchase the subject 

property on or before June 1, 2015, provided that [the tenant] 

was in lawful possession of the property on the date [the 

tenant] elected to execute the option. [The landlord’s] letter 

date[d] December 13, 2013, is ineffective to terminate the 

Option, pursuant to the terms thereof.

The trial court entered judgment in favor of the landlord. The judgment 

did not address the tenant’s affirmative defenses, but the tenant did not 

appeal. Instead, he filed a complaint seeking specific performance of the 

option contract, and also alleged counts for fraudulent inducement and 

unjust enrichment. 

After the pleadings closed in the tenant’s suit, the landlord moved for 

summary judgment, arguing that the judgment in the eviction proceedings 

barred the tenant’s action. The trial court agreed with the landlord and 

entered summary judgment in his favor. Aside from basing summary 

judgment on a finding that res judicata barred the tenant’s claims, the 

court also accepted other arguments made by the landlord in support of 

his motion for summary judgment. 

Summary judgment may be granted based on the doctrine of res 

judicata. See Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520, 523 (Fla. 4th DCA 

2005). 

To successfully invoke a res judicata defense, a party must 

satisfy two prerequisites. First, a judgment on the merits 

must have been rendered in a former suit. Second, four 

identities must exist between the former suit and the suit in 

which res judicata is to be applied: (1) identity in the thing 

sued for; (2) identity of the cause of action; (3) identity of the 

persons and parties to the actions; and 4) identity of the 

quality or capacity of the persons for or against whom the 

claim is made. . . . 

Id. (citations and internal quotation marks omitted). Identity of the causes 

of action is established where the facts necessary to support both causes 

are identical. Gold v. Bankier, 840 So. 2d 395, 397 (Fla. 4th DCA 2003) 

(citation omitted). However:

The supreme court has also applied a transactional test in res 

judicata cases. Under this second test, there is an identity of 
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the cause of action not only as to every question which was 

decided in an earlier lawsuit, but “also as to every other matter 

which the parties might have litigated and had determined, 

within the issues as [framed] by the pleadings or as incident 

to or essentially connected with the subject matter” of the first 

litigation.

Tyson v. Viacom, Inc., 890 So. 2d 1205, 1214 (Fla. 4th DCA 2005) (Gross, 

J., concurring specially) (alteration in original) (quoting Hay v. Salisbury, 

109 So. 617, 621 (Fla. 1926)). For example, if the allegations in the second 

suit would have precluded entitlement to the relief requested in the first 

suit, res judicata bars the second suit. See Hay, 109 So. at 621 (finding 

that res judicata barred the second suit where “[t]he same facts that would 

entitle the complainant in the present suit to have the respondent 

specifically perform the alleged verbal agreement or contract to convey the 

property in controversy would have prevented the complainant in the 

former suit from having his title cleared as against the rights claimed 

under the agreement”).

We find that the specific performance claim is barred by the eviction 

judgment. The tenant alleged in the second suit that the option contract

was an “essential part of the lease transaction.” Indeed, if the tenant had 

fulfilled the requirements of the option contract, eviction would not have 

been possible. As such, the tenant should have brought his specific 

performance claim in the eviction proceedings as the eviction and the 

specific performance of the option contract were “essentially connected.” 

See id.

We also find the fraudulent inducement claim is barred. “The elements 

of a claim for fraudulent inducement are: (1) a false statement of material 

fact; (2) the maker of the false statement knew or should have known of 

the falsity of the statement; (3) the maker intended that the false statement 

induce another’s reliance; and (4) the other party justifiably relied on the 

false statement to its detriment.” Prieto v. Smook, Inc., 97 So. 3d 916, 917 

(Fla. 4th DCA 2012) (citation and internal quotation marks omitted). 

Although the eviction suit involved a lease, it was not an action on a 

contract. The eviction suit was based on what transpired after the lease 

expired. If the eviction suit had been an action on the lease, the fraudulent 

inducement claim would have been barred by res judicata for the simple 

reason that the validity of the lease was determined in the first suit. See 

Zikofsky, 904 So. 2d at 524 (“[I]n a suit on a contract, the failure of a 

defendant to raise a fraudulent inducement defense will bar the defendant 

from later raising the defense in a second action on the same contract or 

from making fraudulent inducement ‘the basis of a subsequent suit by the 

defendant’ against the plaintiff.” (citation omitted)). 
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However, as with the specific performance claim, we find that the 

fraudulent inducement claim, as pled, meets the transactional test as it is 

essentially related to the eviction claim. The essence of the fraudulent 

inducement claim is that the landlord promised the tenant the opportunity 

to purchase the property when he knew he would never honor the 

agreement, and that the tenant made lease and option contract payments 

and improvements to the property based on the false representations. The 

tenant also alleged that he attempted to exercise the option while he was 

in legal possession of the property but the landlord ignored his requests. 

These allegations, if accepted as true by the factfinder, would have 

precluded a judgment in the landlord’s favor in the eviction proceeding.

With respect to the claim for unjust enrichment, we find the trial court 

erred in entering summary judgment. At first glance, the unjust 

enrichment claim appears to be essentially connected to the eviction 

proceedings, as the tenant alleged he made rent and option payments that

were not applied toward the option contract, which he alleged was an 

essential part of the lease transaction. However, he also alleged that he 

made tens of thousands of dollars’ worth of improvements to the property 

during his tenancy. Even if the tenant did not comply with the 

requirements of the option contract, he could still make out a claim for 

unjust enrichment based on the enhancements to the property. Further, 

summary judgment was inappropriate where the record was not clear that 

these improvements were part of the lease and related option contract.

We also find the trial court erred in basing summary judgment on other 

grounds. The court relied in part on a finding that the tenant could not 

exercise the option contract after the lease expired because, by the terms 

of the option contract, he had to be in legal possession of the property. 

The option contract provided for exercise of the option up until June 1, 

2015, years after the lease expired, so long as the tenant was in “legal 

possession” of the property. “Legal possession” is not defined in the 

Contract for Option and there is no indication a written lease was required. 

Thus, expiration of the written lease, standing alone, did not establish that 

the tenant was not in “legal possession” of the property at the time he 

asserts he attempted to exercise the option contract.

The court also based summary judgment on a finding that the option 

contract was merely an “agreement to agree,” because it referenced 

another agreement which was never produced and thus must not have

existed. The language of the option contract, however, did not indicate 

that the parties had yet to come to the second agreement. A missing part

of an agreement may be grounds for dismissal of a cause of action based 

on the agreement, but it does not transform a contract into an “agreement 

to agree.” 
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With regard to the unjust enrichment claim, the court noted that the 

tenant did not allege certain prerequisites necessary under the terms of 

the option contract for a refund of option payments. While this was true, 

the tenant did allege that he spent about $28,000 on renovations and it is

not apparent that these improvements were regarded as payments under 

the option contract. Thus, the trial court erred in basing summary 

judgment on this reasoning.

The tenant also appeals the attorney’s fees order, which was based on 

a finding that the tenant’s claims were frivolous. See § 57.105(1), Florida 

Statutes (2013). Although we affirm the summary judgment as to two of 

the tenant’s claims, we find these claims were not “so devoid of merit both 

on the facts and the law as to be completely untenable.” Wapnick v. 

Veterans Council of Indian River Cnty., Inc., 123 So. 3d 622, 624 (Fla. 4th 

DCA 2013) (citation omitted). We also note that the trial court failed to 

hold an evidentiary hearing and make the required finding of an absence 

of good faith. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 36 (Fla. 

4th DCA 2011). 

In conclusion, we affirm the summary judgment on the claims for

specific performance and fraudulent inducement and reverse the 

summary judgment on the claim for unjust enrichment. Finally, we

reverse the attorney’s fees order. 

Affirmed in part, reversed in part, and remanded for further proceedings.

TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.