             Case: 18-11401    Date Filed: 07/17/2019   Page: 1 of 11


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                           Nos. 18-11401 & 18-12534
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:16-cv-00728-PAM-CM



LOU GATTI,
as Trustee and President of Twin Palms, Inc.,
a dissolved Virginia corporation,
TWIN PALMS INC,
a dissolved Virginia corporation,

                                                             Plaintiffs - Counter
                                                         Defendants - Appellants,
                                      versus

HELEN GOODMAN,
CLIFF GOODMAN,
TWIN PALMS RESORTS, LLC,

                                                           Defendants - Counter
                                                           Claimants - Appellees.
                          ________________________

                  Appeals from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (July 17, 2019)
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Before MARCUS, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellants Lou Gatti and Twin Palms, Inc., appeal the district court’s grant

of summary judgment to Appellees Helen Goodman, Cliff Goodman, and Twin

Palms Resort in this property dispute case. Federal court jurisdiction is based on

diversity. On appeal, Appellants argue that the statutes of frauds, limitations, and

repose do not bar their claims and that therefore the district court erred in granting

summary judgment in favor of Appellees, in awarding costs to them, and in

dissolving the Notice of Lis Pendens. Appellees cross-appeal the denial of their

motion for Rule 11 sanctions.

                                     I. FACTS

      In 1982, the property at issue was conveyed to Appellee Helen Goodman,

who also worked at the fishing camp on the Property with her son, Appellee Cliff

Goodman. In 1989, Appellant Lou Gatti, on behalf of Appellant Twin Palms, Inc.

(“TPI”), entered into a written sales contract with Helen Goodman for TPI to

purchase the Property, which required payments to Helen Goodman and to one of

her sons and also the assumption of the balance of an existing mortgage on the

Property (the Hunter mortgage). With respect to the payments to Helen Goodman,

the contract included a handwritten “Note Payment Schedule” that provided for

annual payments of $50,000 to Helen Goodman from 1989 to 1996. Title was to


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be transferred to TPI when the refinancing was complete and the Hunter mortgage

was paid off. Gatti made the first annual payment to Helen Goodman in 1989.

After that payment, Gatti alleged that he and Helen Goodman orally agreed to

modify the agreement. Although he could not recall the specific terms or the date

of modification, Gatti asserted that under the oral agreement, he “allowed Helen to

operate the camp, keep the profits of the camp and pay the [mortgage] and the

taxes.” The oral agreement was never memorialized in writing.

      Beginning in 1993, Helen Goodman took over management of the camp.

She paid the taxes and made several of the mortgage payments (which was paid off

by 2001). The utilities and licenses remained in her name. Gatti testified that he

“told her to pay herself what she thought that was fair.” Goodman testified that

because the property and liquor license remained in her name, she felt that she

could not leave the Property. The record contains evidence that Gatti

intermittently paid Appellees, but no one could recall what the money was for.

      TPI dissolved in 1996. In 2009, Helen Goodman transferred ownership of

the Property to Appellee Twin Palms Resort, LLC, of which she was the sole

owner. In 2013 and 2015, Gatti sent Helen Goodman letters offering to sell the

Property back to her but she did not respond to either letter. Then, in 2016, Gatti

discovered that Appellees had listed the Property for sale on the Internet, and he




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demanded that they remove the listing and convey the Property to him. On

September 26, 2016, Appellants sued Appellees.

      Appellants’ operative complaint included the following claims: (1) quiet

title; (2) unjust enrichment; (3) breach of contract; (4) specific performance; (5)

fraudulent misrepresentation; (6) fraud by omission; (7) negligent breach of

fiduciary duty; and (8) intentional breach of fiduciary duty. The district court

issued an order on March 23, 2018, granting summary judgment to Appellees after

determining that Appellants’ claims relied on an unenforceable oral agreement in

violation of the statute of frauds. The district court also determined that the claims

for quiet title, unjust enrichment, breach of contract, specific performance, and

negligent and intentional breach of fiduciary duty were barred by the various

applicable statutes of limitations, and that Appellants’ fraud claims were barred by

the statute of repose. In its order, the court also dissolved the Notice of Lis

Pendens Appellants had filed against the Property. The court also denied the

Appellees’ motion for Rule 11 sanctions, reasoning that although the Appellants’

claims were not successful, they were not frivolous, as is required for sanctions.

                                  II. DISCUSSION

      We review de novo a district court’s decision to grant summary judgment,

drawing “all reasonable inferences in the light most favorable to the non-moving

party.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary


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judgment is proper if “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986) (quotation marks

omitted).

A. Appellants’ Issues on Appeal

          Appellants present two arguments on appeal. First, they argue that the

district court erred in holding that the alleged oral modification of the sales

contract was unenforceable pursuant to the statute of frauds. They argue that the

district court erred in conflating Appellants’ reliance on the doctrine of waiver as

set out in Gilman v. Butzloff, 22 So.2d 263 (Fla. 1945), with the Florida law that

promissory estoppel is not an exception to the operation of the statute of frauds.

Second, Appellants argue that the district court erred in holding that the Florida

statutes of limitations and statute of repose bar their claims.

          1. Statute of Frauds

          Florida law requires contracts that cannot be performed within a year to be

in writing. See Fla. Stat. § 725.01. 1 “[T]o be within, and thus barred by, the

provision in the statute of frauds concerning agreements ‘not to be performed


1
    Fla. Stat. § 725.01 provides:
          No action shall be brought . . . upon any agreement that is not to be performed
          within the space of 1 year from the making thereof . . . unless the agreement or
          promise upon which such action shall be brought, or some note or memorandum
          thereof shall be in writing and signed by the party to be charged therewith or by
          some other person by her or him thereunto lawfully authorized.
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within the space of one year from the making thereof,’ it must be shown that

neither party’s performance was intended to be complete within one year.”

Lundstrom Realty Advisors, Inc. v. Schickedanz Bros.-Riviera Ltd., 856 So.2d

1117, 1122 (Fla. 4th DCA 2003) (quoting Fla. Pottery Stores of Panama City, Inc.

v. Am. Nat'l Bank, 578 So.2d 801, 804 (Fla. 1st DCA 1991)). “The statute should

be strictly construed to prevent the fraud it was designed to correct, and so long as

it can be made to effectuate this purpose, courts should be reluctant to take cases

from its protection.” LaRue v. Kalex Constr. & Dev., Inc., 97 So.3d 251, 253 (Fla.

3d DCA 2012) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937)).

      As Appellants acknowledge, Florida courts have held that promissory

estoppel cannot be used to overcome the statute of frauds. See DK Arena, Inc. v.

EB Acquisitions I, LLC, 112 So.3d 85 (Fla. 2013). However, in DK Arena, the

Florida Supreme Court noted that the doctrine of waiver was still available as a

defense to the statute of frauds including in the context of delayed performance.

Id. at 98. However, it held that the holding of the court below did not support

application of the waiver doctrine because “[t]he instant case did not involve a

simple delay in performance, but rather concerned an agreement which created an

extended due diligence period, under which EB held an unqualified right to

terminate the contract. This modification was unenforceable due to operation of the

Statute of Frauds.” Id.


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      Appellants argue that the district court erred when it held that promissory

estoppel was not available to defeat the statute of frauds defense because their

argument was instead based on the waiver doctrine. However, the alleged oral

modification here was not a simple delay in performance but created an entirely

new payment structure. Gatti testified that under the oral agreement, he no longer

had to make the annual payments but instead that his payment obligations would

be satisfied in that Goodman would operate the camp, keep the profits and pay the

expenses, and that she should pay herself a reasonable salary. As in DK Arena, the

alleged oral modification here was far different from the simple delay in

performance which DK Arena suggests might be pursuant to waiver.

      Moreover, the oral agreement upon which Appellants rely to support waiver

falls far short of the kind of delayed performance which DK Arena suggests might

warrant application of the waiver doctrine—i.e. “if the plaintiff has been caused to

delay his performance beyond the specified time by request or agreement or other

conduct of the defendant, the plaintiff can enforce the contract in spite of his

delay.” Id. (quotation and citation omitted). Finally, the facts in this case fall far

short of the waiver doctrine as described in Gilman: “‘We have held that waiver is

the intentional relinquishment of a known right . . .. It is necessary that the acts,

conduct, or circumstances relied upon to show waiver should make out a clear

case.” 22 So.2d at 26 (internal quotations and citations omitted).


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       For the foregoing reasons, Appellants could not rely on the doctrine of

waiver under Florida law to excuse the lack of written memorialization of the

modification.

       2. Statutes of Limitations and Statute of Repose

       None of the several applicable statutes of limitations at issue in this case

allow more than five years. 2 Appellants filed suit in 2016. Appellees argue that all

of Appellants’ claims accrued, at the latest, in 2001, which would of course mean

that the statutes of limitations would have long ago expired. Unless Appellants can

persuade us that the several causes of action did not accrue until 2016 (the only

other date Appellants suggest), their claims would be barred. Thus, we turn to the

crucial issue of accrual.

       Under Florida law, “the time within which an action shall be begun under

any statute of limitations runs from the time the cause of action accrues,” Fla. Stat.

§ 95.031, and “[a] cause of action accrues when the last element constituting the

cause of action occurs,” Fla. Stat. § 95.031(1).

       The general rule, of course, is that where an injury, although slight, is
       sustained in consequence of the wrongful act of another, and the law
       affords a remedy therefor, the statute of limitations attaches at once. It
       is not material that all the damages resulting from the act shall have
       been sustained at that time and the running of the statute is not

2
        Claims for quiet title, unjust enrichment, fraud, and breach of fiduciary duty have four
year statutes of limitation. See Fla Stat. § 95.11(3)(a), (j), (k), (p). Breach of contract claims
must be filed within five years. Id. § 95.11(2)(b). Only one year is allowed to bring a claim for
specific performance. Id. § 95.11(5)(a).
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      postponed by the fact that the actual or substantial damages do not
      occur until a later date.

Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 202 So.2d 859, 862 (quoting

City of Miami v. Brooks, 70 So.2d 306, 308 (Fla. 1954)).

      Appellants argue that the district court erred when it set 2001 as the last

possible date that their claims could accrue. The district court had reasoned that

2001 was the proper time for the accrual of the claims because that is when all of

Appellants’ obligations were completed. That is, their last annual payment to

Helen Goodman was due October 1, 1996, and their last-in-time obligation under

the original written sales contract was the final payment on the Hunter mortgage,

which was in 2001. Thus in 2001, Appellants were entitled under the sales

contract to have the title to the Property transferred to them. The district court

reasoned that Appellants could not delay the accrual by their unilateral failure to

seek transfer of the title after all of the other contractual obligations had been met.

We agree. As the district court stated, this would defeat the purpose of statutes of

limitations. “‘[H]ow resolutely unfair it would be to award one who has willfully

or carelessly slept on his legal rights an opportunity to enforce an unfresh claim

against a party who is left to shield himself from liability with nothing more than

tattered or faded memories.’” Allie v. Ionata, 503 So.2d 1237, 1240 (Fla. 1987)

(quoting Nardone v. Reynolds, 333 So.2d 25, 36 (Fla.1976)). This case presents a

classic example. Under either the original sales contract or the alleged oral
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agreement, all of Appellants’ payment obligations would have been satisfied as of

2001, and Appellants would obviously expect the contracted for transfer of title to

take place. Yet Appellants said nothing, waited almost fifteen years until 2016, 3

and then surprised Appellees with the vague alleged oral agreement asserted in this

litigation. We agree with the district court’s assessment that all of the claims

derived from Appellants’ failure to insist upon the required transfer of the deed in

2001, which started the clock. We agree with the district court that Appellants’

challenge in this suit comes too late.

       Similarly, the district court did not err when it held that Appellants’ fraud

claim was barred by the statute of repose. Under Florida law, fraud actions must

be initiated “within 12 years after the date of the commission of the alleged fraud,

regardless of the date the fraud was or should have been discovered.” Fla. Stat.

§ 95.031(2)(a). Appellees’ failure to transfer the title in 2001 started the clock for

the statute of repose for fraud and thus Appellants’ suit was too late.

       In conclusion, Appellants’ appeal fails for several reasons. The oral

agreement upon which they rely is unenforceable under the statute of frauds.

Moreover, their claims are all barred by the applicable statutes of limitations, and

the fraud claims are also barred by the statute of repose.


3
       There were no communications about the Property except for one letter in 2013—already
more than 12 years after 2001 and to which Helen Goodman did not respond—which merely
offered to resell the Property to Helen Goodman, but made no mention of the oral agreement.
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B. Appellees’ Cross Appeal

      Finally, the Appellees argue in their cross appeal that the district court

abused its discretion when it declined to award sanctions against the Appellants.

“A court’s decision to deny sanctions under Rule 11, 28 U.S.C. § 1927, and the

court’s inherent power is reviewed for abuse of discretion.” Peer v. Lewis, 606

F.3d 1306, 1311 (11th Cir. 2010). In deciding whether to impose Rule 11

sanctions, a court asks “(1) whether the party’s claims are objectively frivolous;

and (2) whether the person who signed the pleadings should have been aware they

were frivolous.” Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998).

      The district court did not abuse its discretion when it did not award

sanctions. Although the Appellants ultimately were unsuccessful, their claims

were not disposed of so easily as to make them frivolous.

      The judgment of the district court is affirmed in all respects.

AFFIRMED.




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