       Third District Court of Appeal
                               State of Florida

                           Opinion filed March 8, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2649
                         Lower Tribunal No. 07-29172
                             ________________


                   Abundant Living Citi Church, Inc.,
                                    Appellant,

                                        vs.

                    Abundant Living Ministries, Inc.,
                                    Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Gisela Cardonne Ely, Judge.

     Rumberger, Kirk & Caldwell, P.A., and Joshua D. Lerner, for appellant.

     Cooney Trybus Kwavnick Peets, PLC, and Alphonso Peets and Kelly A.
Lenahan (Fort Lauderdale), for appellee.

Before WELLS, SALTER and SCALES, JJ.

     SCALES, J.
      Appellant Abundant Living Citi Church Inc. (“Church”), the defendant and

counter-plaintiff below, appeals a non-final order ejecting Church from property

owned by Appellee Abundant Living Ministries, Inc. (“Owner”), the

plaintiff/counter-defendant. Because the trial court’s order of ejectment operated as

a de facto grant of summary judgment for Owner, disposing of Owner’s claim and

Church’s contract claims, without obedience to summary judgment’s procedural

dictates, we reverse.

      I. Facts

      In 2007, Owner initiated a single-count ejectment action, seeking to eject

Church from Owner’s real property in Miami. Church filed a verified answer,

affirmative defenses, and a three-count counterclaim alleging that Owner was

estopped from ejecting Church from the property. Essentially Church alleges Owner

orally agreed to sell the property to Church, and breached that oral agreement, by

failing to honor the agreement. 1 Owner sought to strike Church’s affirmative

defenses, asserting that Florida’s statute of frauds precludes Church’s contract and

specific performance claims. 2 The trial court denied Owner’s motion to strike.



1
  Specifically, count I of Church’s counterclaim seeks monetary damages for breach
of contract; count II seeks a judgment requiring Owner to specifically perform the
contract by selling the property to Church for the allegedly agreed-upon sum of
$400,000; and count III seeks unjust enrichment damages for improvements Church
allegedly made to Owner’s property.


                                         2
      Protracted discovery ensued over the next several years. Eventually, the trial

court set the case for jury trial in May of 2017. One week after the case was set for

trial, Owner filed its October 17, 2016 Motion to Compel Defendant to Surrender

the Premises. In its motion, Owner alleged that it had entered a contract to sell the

property to a third party and, therefore, needed to obtain the relief sought in Owner’s

complaint; that is, to eject Church from the property. Owner’s motion made no other

legal or factual arguments, did not cite to any record evidence in the case, and did

not address Church’s verified affirmative defenses or counterclaim. On October 31,

2016, Owner noticed its motion for a hearing on November 9, 2016, for the trial

court’s five-minute motion calendar.

      In opposition to Owner’s ejectment motion, Church argued that issues of fact

raised by Church’s verified pleadings precluded Owner from obtaining the relief

sought. Specifically, Church asserted that Church rightfully possessed the premises,

and that Church and Owner had entered into an oral contract authorizing Church to

purchase the property. Church asserted that consideration had been given, payment

of the purchase price had been tendered, and Church had made valuable

improvements to the property. Church asserted that the circumstances surrounding

Church’s occupation of Owner’s property were sufficient to “satisfy the


2
  Florida’s statute of frauds generally requires that any contract for sale of real
property is unenforceable unless in writing and signed by the party to be bound. §
725.01, Fla. Stat. (2006).

                                          3
longstanding gift and partial performance exceptions to the affirmative defense of

the statute of frauds.”

      The trial court conducted the November 9, 2016 hearing and on November

23, 2016, entered the order on appeal, which ejected Church from the property. The

trial court determined that, even if an oral contract between Owner and Church

existed, any such oral contract would violate Florida’s Statute of Frauds. The order

expressly did not adjudicate Church’s assertions that its partial performance of the

alleged oral contract were sufficient to remove the contract from the operative effect

of Florida’s statute of frauds. The order required Owner to hold any sale proceeds in

trust pending appeal by Church.

      Church timely appealed the order. We stayed the trial court’s order and

granted Church’s motion to expedite the appeal.

      II. Analysis

      The trial court’s ejectment order summarily disposed of both Owner’s

ejectment claim and Church’s contract claims; hence we review the ejectment order

as we would a summary judgment order. Accordingly, we review the ejectment

order de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000).

      Summary judgment is not warranted unless a hearing is held on proper

motion, the record conclusively establishes that there exists no genuine issue of



                                          4
material fact, and the movant is entitled to judgment as a matter of law. Fla. R. Civ.

P. 1.510(c). A trial court may not short-circuit this process. See, e.g., Fouts v.

Bowling, 596 So. 2d 95, 95 (Fla. 3d DCA 1992) (holding that hearing on motion in

limine may not serve as vehicle for unnoticed summary judgment); Lombard v.

Exec. Elevator Serv., 545 So. 2d 453, 455 (Fla. 3d DCA 1989) (disapproving use of

pretrial conference to take testimony to dispose of case without summary judgment

notice). Further, a trial court may not short-circuit the summary judgment process

by neglecting elements of rule 1.510. See, e.g., Kendall Commercial Assocs., LLC

v. Drakes, LLC, 163 So. 3d 718, 718-719 (Fla. 3d DCA 2015) (holding that grant of

summary judgment without notice and based on relief unpled is improper); Schrank

v. Pearlman, 683 So. 2d 559, 563 (Fla. 3d DCA 1996) (observing that summary

judgment cannot be based on unsworn proof); Hurricane Boats, Inc. v. Certified

Indus. Fabricators, Inc., 246 So. 2d 174, 175 (Fla. 3d DCA 1971) (stating that

affidavit in support of summary judgment may not be based on factual or legal

conclusions).

      To be entitled to a summary judgment, Owner, as the movant, had the burden

to identify in its motion those record facts that conclusively proved its claim and

disproved Church’s claims. Alfre Marble Corp. v. Twin Stone Designs &

Installations, Inc., 44 So. 3d 193, 194 (Fla. 3d DCA 2010). Rule 1.510(c) requires

summary judgment motions specifically to identify the summary judgment evidence



                                          5
upon which the movant relies. Owner’s motion identifies no record evidence

whatsoever; it merely alleges, in conclusory manner, that Church should be ejected

from the property. Owner’s motion was accompanied by no affidavits or record

citations. Owner’s motion simply repeated the conclusory statement – alleged in

Owner’s complaint – that Church had no legal basis to be in possession of the

property. No attempt was made to challenge, much less disprove, the verified

allegations contained in Church’s answer and counterclaim. 3

      Additionally, rule 1.510(c) requires summary judgment motions to “state with

particularity the grounds upon which it is based and the substantial matters of law to

be argued.” Fla. R. Civ. P. 1.510(c). The motion does not mention the parties’

alleged oral contract or Florida’s statute of frauds, much less address whether the

facts alleged by Church bring the parties’ oral contract outside the reach of the

statute of frauds. Understandably, based on Owner’s motion, Church could not have

reasonably expected the trial court to enter against it a de facto summary judgment

or, as the dissent suggests was appropriate, a final judgment of dismissal. 4 Yet, as




3
 In fact, nowhere in the record is there a copy of the alleged contract between Owner
and the prospective purchaser.
4
  As mentioned, the trial court previously had denied Owner’s equivalent motion
seeking to strike Church’s pleadings. “[A]n order that strikes the entirety of a claim
is the equivalent of an order which dismisses, and either is final.” Gries Inv. Co. v.
Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980).

                                          6
Owner’s counsel properly conceded at oral argument, this is precisely the effect of

the trial court’s order.

       To be clear, we express no opinion as to whether Owner might be entitled to

a summary judgment in this case. Entry of such summary judgment, however, is

predicated upon Owner’s filing of a motion that meets the requirements of rule 1.510

and establishes that Owner is entitled to the relief sought in its pleadings, and that

disproves conclusively Church’s entitlement to relief.

       III. Conclusion

       Notwithstanding Owner’s failure to file a proper summary judgment motion,

the trial court entered the equivalent of a summary judgment for Owner. We

therefore reverse the trial court’s ejectment order and remand for proceedings

consistent with this opinion.

       Reversed and remanded.

       SALTER, J., concurs.




                                          7
            Abundant Living Citi Church, Inc. v. Abundant Living Ministries, Inc.,
                                                                    3D-16-2649


      WELLS, Judge (dissenting).

      I respectfully dissent. Even accepting the majority’s finding that Abundant

Living Citi Church, Inc. was denied due process, I would nevertheless affirm what

amounted to entry of dismissal with prejudice of appellant’s counter-claims for

specific performance, and breach, of an oral contract for the sale of real property, as

I find that appellant has not alleged and cannot prove the existence of a valid, oral

contract in this matter. See de Vaux v. Westwood Baptist Church, 953 So. 2d 677,

682 (Fla. 1st DCA 2007) (“[W]e affirm the order of dismissal because the complaint

wholly fails to state a cause of action for specific performance of a contract for the

purchase of real property.”).

      The parties’ focus both in the proceedings below and in this court on appeal

has been on whether the partial performance exception to the statute of frauds,

section 725.01 of the Florida Statutes, applies to appellant’s claim. However, as the

Florida Supreme Court long ago confirmed “before it becomes proper or necessary

to determine whether the facts permit the enforcement of such a contract, as an

exception under the Statute of Frauds, it must first be determined” that an oral

contract exists. Gable v. Miller, 104 So. 2d 358, 360 (Fla. 1958) (“It is fundamental

that a prerequisite of a decree for specific performance is the existence of a valid



                                          8
contract.” (quoting Rork v. Las Olas Co., 23 So. 2d 839, 842 (Fla. 1945))); Celano

v. Dlabal, 591 So. 2d 653, 655 (Fla. 1st DCA 1991) (recognizing that “[t]o obtain

specific performance of an oral contract to convey real estate, the party seeking

specific performance must first [make a threshold showing to] establish the oral

contract by clear, definite and certain proof”).

      “In order for a court of equity to decree specific performance of a contract,

the terms of the agreement must be clear, definite, certain and complete, for the

equitable remedy of specific performance is granted only where the parties have

actually entered into an agreement that is definite and certain in all of its essential

elements.” The Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So. 2d 137, 138 (Fla.

3d DCA 1974); see also de Vaux, 953 So. 2d at 682 (“In order for a contract to be

subject to specific performance, it must appear from the writing constituting the

contract that the obligations of the parties with respect to [the] conditions of the

contract and actions to be taken by the parties are clear, definite and certain.”

(quoting Brown v. Dobry, 311 So. 2d 159, 160 (Fla. 2d DCA 1975))). Where, as

here, specific performance of a contract for the sale of real property is at issue, the

contract must at the very least be “definite, certain, and complete as to the parties,

the description of the property, the contract price, and the financing terms thereof.”

Muñiz v. Crystal Lake Project, LLC, 947 So. 2d 464, 469 (Fla. 3d DCA 2006).

Where any of these essential terms are lacking, specific performance of a contract



                                           9
for the sale of real property must be denied. See 330 Michigan Ave., Inc. v.

Cambridge Hotel, Inc., 183 So. 2d 725, 726-27 (Fla. 3d DCA 1966) (“Specific

performance will not be enforced where the contract is not definite and certain as to

essential terms and provisions and is incapable of being made so by the aid of legal

presumption or evidence of established customs.”).

      Here, appellant’s counterclaims for breach and specific performance of an oral

contract are based on the following verified allegations, in relevant part:

                    COUNT I. BREACH OF AN ORAL CONTRACT

             8. The Defendant[], in August, 2004, through the corporation[’]s
      representatives and/or officers, Pastor Antonio Rivera, Jr., and Pastor
      Dianna E. Rivera [entered into a verbal contract with Plaintiff] to
      relocate from South Carolina to Miami, Florida to start, and operate a
      religious organization, specifically, a Church, on the property, to
      conduct improvements to the physical structure on the property, and
      that in return, for Defendant’s services, the property would be conveyed
      to the Defendant upon the Defendant’s ability to obtain the finances to
      purchase the subject property.

             ....

             11. That on September 2006, the Defendant having the financial
      capacity to perform in accordance with the verbal agreement entered
      into by the parties, offered the Plaintiff Four Hundred Thousand Dollars
      ($400,000.00) for the property in the defendant’s possession in Miami-
      Dade County . . . .

            12. That the Plaintiff verbally accepted the offer and
      subsequently failed to comply with the oral contract.

             ....

                       COUNT II. SPECIFIC PERFORMANCE


                                          10
             13. Defendant incorporates by this reference paragraph[s] 7-11
      of this Counter Claim.

             14. That on or about September 2006, Plaintiff by and through
      their Pastor and President of the Corporation, Bishop Hugh Thomas
      informed the Defendant that their offer of $400,000.00 was accepted
      with verification with the Plaintiff’s certified public accountant.

            15. Defendant performed all conditions, covenants, and
      promises on Defendant’s part to be performed in accordance with the
      terms and conditions of the agreement.

             16. Defendant relied on Plaintiff’s representations and that
      reliance was reasonable.

      As clearly alleged in the counterclaim, and confirmed by appellant’s counsel

at oral argument, the parties did not agree upon the essential element of price when

the parties first had their oral discussions in August of 2004. Rather, it was not until

more than two years had passed, in September of 2006, that appellant offered to

purchase the subject property for $400,000. 5 Without an agreement on a purchase

price for the subject property, the parties had no enforceable agreement. See Alton

Beach Realty Co. v. Henderson, 110 So. 256, 258 (Fla. 1926) (denying specific




5
  Consistent with the counterclaim, appellant’s counsel also confirmed at oral
argument that appellant was alleging the parties had entered into only one oral
contract, in August of 2004, such that appellant’s $400,000 offer in September of
2006 was in fulfillment of that agreement. In addition, though not alleged in the
counterclaim, appellant’s counsel represented at the hearing below that the $400,000
was also tendered to the appellee, but rejected.

                                          11
performance of a contract for the sale of real estate where the purported contract

failed to set forth with certainty the purchase price and time of payment).

      I also find the barebones allegations that appellant would acquire the property

at issue here for some unspecified price upon appellant’s “ability to obtain the

finances to purchase the subject property” wholly inadequate. Compare Muñiz, 947

So. 2d at 470 (finding the purchase and sale agreement sufficient where the

agreement specified “the purchase price of the property, the deposit money schedule,

the mortgage amount to be obtained by the Purchasers, [and] the mortgage financing

conditions”), with de Vaux, 953 So. 2d at 682 (finding the plaintiff failed to state a

cause of action for specific performance of a contract for the purchase of real

property where “[e]ssential terms of the financing . . . [were] not included in the

purported agreement, such as the date of the maturity of any promissory note,

whether the quarterly payments of the debt would include any amortization of

principal, and whether the financing would be secured by a mortgage on the subject

property or other assets of de Vaux”), and Philbrick v. Wedel, 411 So. 2d 973, 974

(Fla. 3d DCA 1982) (reversing final judgment of specific performance and finding

“that there was never an enforceable contract entered into by the parties herein

because . . . . the financing portion of the subject agreement was, in our view, entirely

indefinite”), and Fox v. Sails at Laguna Club Dev. Corp., 403 So. 2d 456, 458 (Fla.

3d DCA 1981) (affirming the denial of specific performance of a contract for the



                                           12
sale of real property because “[w]hile the agreements include the names of the parties

to the transaction, the location of the subject property, and the purchase price,

conspicuously absent is any mention of the terms of payment or time for payment”),

and Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057, 1060 (Fla. 3d DCA 1979)

(affirming denial of specific performance on a contract for the sale of real property

where it was “not clear as to how the deferred payment financing arrangement would

work, or when the purchase money mortgage payments would begin” and where

“[t]he note also ma[de] mention of a possible future subordination of the purchase

money mortgage to a new first mortgage, but none of those terms of this

contemplated subordination were delineated”).

      Additionally, and in a similar vein, the facts alleged in the counterclaim could

not possibly be viewed as anything more than an “agreement to agree” and therefore

under Florida law unenforceable. See ABC Liquors, Inc. v. Centimark Corp., 967

So. 2d 1053, 1056 (Fla. 5th DCA 2007) (“[A]n ‘agreement to agree’ is unenforceable

as a matter of law.”). “To be enforceable, an agreement must be sufficiently specific,

and reflect assent to all essential terms. Where essential terms of an agreement

remain open, subject to future negotiation, there can be no enforceable contract.”

Suggs v. Defranco’s, Inc., 626 So. 2d 1100, 1100-01 (Fla. 1st DCA 1993) (citation

omitted); John Alden Life Ins. Co. v. Benefits Mgmt. Assoc., 675 So. 2d 188, 189

(Fla. 3d DCA 1996) (concluding that a contractual term providing that the parties



                                         13
would negotiate a bonus payment in the future “was merely an ‘agreement to agree’

in the future about the bonus and hence unenforceable as a matter of law”);

Jacksonville Port Authority, City of Jacksonville v. W.R. Johnson Enters., Inc., 624

So. 2d 313, 315 (Fla. 1st DCA 1993) (“Failure to sufficiently determine quality,

quantity, or price may preclude the finding of an enforceable agreement. Where the

parties are continuing to negotiate as to these essential terms, there can be no meeting

of the minds.”) (citations omitted); see generally 11 Fla. Jur 2d Contracts § 20

(“Where essential terms of an agreement remain open, and subject to future

negotiation, there can be no enforceable contract. Thus, where it appears that the

parties are continuing to negotiate as to essential terms of an agreement, there can

be no meeting of the minds as required for the formation of a contract. Accordingly,

an ‘agreement to agree’ is unenforceable as a matter of law.”) (footnotes omitted).

      Accordingly, even given the majority’s conclusion that the appellant was

denied due process, I would nevertheless affirm in this case as I find that appellant

cannot as a matter of law establish the prerequisite for maintaining an action for

breach of contract or specific performance. The sufficiency of a complaint for

breach of contract and specific performance is a question of law and our standard of

review is de novo. See de Vaux, 953 So. 2d at 681. Limiting such review to the

allegations within the four corners of the complaint, accepting the allegations as true,

and considering them in the light most favorable to appellant, it is clear that the



                                          14
parties do not have a valid, oral contract for the reasons set forth herein. As even

appellant’s counsel conceded at oral argument, the purchase price and parameters

for making payment were not even discussed by the parties until more than two years

had elapsed from the time of their purported oral agreement in August of 2004. In

light of this, I see no point in remanding this case for the lower court to engage in

what amounts to a futile act on these claims. 6 See Posigian v. Am. Reliance Ins. Co.

of N.J., 549 So. 2d 751, 754 (Fla. 3d DCA 1989) (“It would have been an exercise

in futility to give Posigian an opportunity to amend her complaint. Where a

complaint cannot be amended so as to state a cause of action, a dismissal with

prejudice is proper.”).




6
  At best, appellant has a valid cause of action for unjust enrichment based on the
“valuable and permanent improvements” that appellant allegedly made to the subject
property upon taking possession of it. That claim, which appellant raised as count
III of the counter-claim, was not addressed in the order on review and remains
pending below.

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