        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
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.




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