### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

WASHINGTON A. SENA
, Appellant,

v.

CARLOS PEREIRA
, Appellee

.

No. 4D 14

- 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.

C IKLIN
, C.J

.

Washington A. Sena appeals the summary final judgment e ntered 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 parti es 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 a lleged 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 defense s , the tenant alle ged that the landlord ’s

a ctions constituted a breach of “ the Contract for Option, which was an2

essential part of the lease transaction between the parties.” The tenant further asserted the following:

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

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] De cember 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 summ ary 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 i n 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 a nd 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. 2 d 395, 397 (Fla. 4th DCA 2003) (citation omi tted). However:

T he supreme court has also applied a transactional test in res judicata cases. Under this second test, there is an identity of3 the cause of action not only as to every question which was decided in an earlier lawsuit, but “also as to ever y 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 th e 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 cla im is barred by the e viction judgment. T he tenant alleged in the s econd suit that the o ption contract was an “essential part of the lease transaction.” Indeed, if the tenant had fulfilled the require ments of the option contract , eviction would not have

b een possible. As such, the tenant should have brought his specific performance claim in the eviction proceedings as the eviction and the specific perfor mance of the option contract were “essentially connected.”

See id.

We also find the fraudulent induc emen t 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 s tatement 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 judicat a 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 rai sing 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)).4

However, as with the specific performance claim, we find that th e 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 rep r esentations. The tenant also alleged that he attempted to exercise the option while he was

in l egal 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 enri chment, we find the trial court erred in entering summary judgment

. A t first glance , the unjust

enrichment claim appears to be essentially connected to the eviction proceedings, as the tenant alleged he mad e 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 tenan t did not comply with the require ments 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 improveme nts were part of the lease and re lated 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 b ecause, 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 a lone, 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 prod uced and thus must not have

exist ed

. T he 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 ag reement

, but it does n ot transform a contract into an “agreement to agree.”5

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 spen t 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 judg ment on this reasoning.

The ten ant 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 the se 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 th at the trial court failed to hold an evidentiary hearing and make the required finding of an absence of good faith. See Sa ntini 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 perfor mance 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

.

T AYLOR and C ONNER

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.