Third District Court of Appeal
State of Florida
Opinion filed May 24, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1319
Lower Tribunal No. 20-7265
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Danelia Gomez, et al.,
Appellants,
vs.
Carlos Gomez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Oscar
Rodriguez-Fonts, Judge.
Law Office of Mark A. Kamilar, and Mark A. Kamilar, for appellants.
Corona Law Firm, P.A., and Ricardo M. Corona and Michelle Denis,
for appellee.
Before SCALES, MILLER and BOKOR, JJ.
PER CURIAM.
Citing exclusively to Florida’s statute of frauds, 1 the trial court
dismissed, with prejudice, the three-count amended complaint of the
plaintiffs below, appellants Danelia Gomez and Odell Landeros. Count I of
the amended complaint alleges that appellee Carlos Gomez, the defendant
below, breached an oral joint venture agreement with appellants concerning
the acquisition, maintenance and sale of real property. Though the statute of
frauds generally does not apply to joint venture agreements to develop and
sell real estate for a profit, see Russell v. Thielen,
82 So. 2d 143, 146 (Fla.
1955), we affirm the dismissal of count I because there was no agreement
between the parties that appellee Gomez would share in the net profits of
the subject property’s sale. See Jackson-Shaw Co. v. Jacksonville Aviation
Auth.,
8 So. 3d 1076, 1093-94 (Fla. 2008) (“While the agreement may meet
one or even several elements of the [joint venture] test, it clearly does not
meet all of them. . . . [W]hile the parties did agree to share in the net profits,
JAA never agreed to share in the losses . . . should the project prove
unprofitable.’” (quoting Jackson-Shaw Co. v. Jacksonville Aviation Auth.,
510 F. Supp. 2d 691, 730 (M.D. Fla. 2007))).
Counts II and III of the amended complaint seek equitable relief and
the imposition of a constructive trust on allegations sounding in unjust
1
§ 725.01, Fla. Stat. (2017).
2
enrichment. Because such claims are not barred by the statute of frauds,
see Kolski ex rel. Kolski v. Kolski,
731 So. 2d 169, 172 (Fla. 3d DCA 1999),
we reverse the dismissal of counts II and II and remand to the trial court for
proceedings consistent with this opinion. 2
Affirmed in part; reversed in part and remanded with instructions.
2
We express no opinion on the merits of either of appellants’ surviving
counts.
3
