PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS
Plaintiff responds to Defendant’s Motion to Dismiss dated October 4, 2012 as follows:
I. The Written Agreement
Footnote 1 of Plaintiff’s Complaint makes it clear that “Plaintiff is not in possession of a signed copy of this contract, however it was signed by all parties and is believed to be in the possession of the Defendant.” Thus, the allegation that a signed copy of the agreement is in the sole and exclusive possession of one or more of the defendants precludes dismissal. Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972).
Moreover, according to Trawick’s Florida Practice and Procedure, 2003 Edition, Section 6-15 (Exhibits), Footnote 3, “A signed copy [of the document] is not required” to be attached under Rule 1.130. Similarly, the “attached or incorporated document does not have to be complete and may be supplemented by allegations in the pleading.” Id. at 6-15.
Finally, even if permanently lost by all parties and even if Plaintiff’s testimony could not supplement the fact that it was signed, a lost contract will not preclude a breach of contract action on the same. See, e.g., Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895)(allowing reestablishment of a lost contract for the sale of land and a specific performance claim to proceed simultaneously); Griffin v. Fries, 23 Fla. 173, 2 So. 266, 267-68 (1887)(allowing a claim for reestablishment to proceed with a claim for relief under such document in the same cause of action); Young v. Charnack, 295 So.2d 665, 667 (Fla. 3d DCA 1974)(action to reestablish and enforce lost mortgage and note). Defendant’s argument that Count I should be dismissed because a signed copy of the agreement is not attached is without merit.
II. Statute of Frauds
Defendant’s next argument is that the statute of frauds precludes Count II, the alleged breach of an oral contract. However, the statute of frauds is an affirmative defense, and cannot be asserted as a grounds for a motion to dismiss. Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963) (the statue of frauds affirmative defense may not be asserted as grounds for a motion to dismiss a complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint).
Additionally, because the contract could have been completed within a year the statute of frauds does not apply. Only if a contract could not possibly be performed within one year would it fall within the statute. See Hesston Corp. v. Roche, 599 So.2d 148 (Fla. 5th DCA 1992). Also, the statute of frauds only applies to executory contracts, not to agreements that have been fully performed. Full performance takes the agreement beyond the operation of section 725.01. See Moneyhun v. Vital Indus., Inc., 611 So.2d 1316, 1319 (Fla. 1st DCA 1993).
Finally, as identified in the attached Exhibit B, the initial term of the agreement was for February 3rd, 2004 until December 31st, 2004. See Paragraph 1(b). Thereafter, the “Agreement will be automatically renewed for additional periods of one-year each….”. Id. Thus, the initial termoftheagreementwaslessthanoneyearandthenitrenewsayearatatime. Becausethe contract renewed each year, it is not barred by the statute of frauds. As stated by the court in Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000):
In Rothman v. Gold Master Corp., 287 So.2d 735 (Fla. 3d DCA 1974), appellant appealed from an order granting defendant’s motion to dismiss his complaint with prejudice. In his complaint, appellant alleged that he entered into an oral contract of employment with the defendant to commence on July 1, 1965 and terminate on June 30, 1966. Further, he alleged that the oral contract was renewable each year by virtue of mutual acts and performances, that the parties annually renewed the contract and that on July 1, 1971 the contract was renewed with the understanding that appellant would relocate himself and his family to Florida. In November 1971, prior to the end of the term of the contract, appellant was dismissed from his employment without cause.
In reversing, the Third District held that where an agreement expires by its terms and without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old. See id. at 736. Further, the court held that if a pleading informs the defendant of the nature of the cause against him, the pleading is sufficient. See id. at 737 (citing Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971)). Thus, the oral renewal of a one-year oral contract took the contract out of the statute of frauds. See id.
As in Rothman, we hold in this case that appellant sufficiently stated a cause of action for breach of an oral agreement. This does not, however, preclude appellee from raising his affirmative defense of statute of frauds at a later stage in these proceedings.
(e.s.). Similarly, simply because the agreement between Plaintiff and Defendant renewed each year does not mean the matter is barred by the statute of frauds even if that affirmative defense is ultimately pled (which Plaintiff contends would be wholly without merit).
III. Unjust Enrichment has been adequately pled.
Defendant claims that Plaintiff did not adequately plead two elements of unjust enrichment, however it fails to take into account that Plaintiff reincorporated paragraphs 1-7 of the Complaint into that count. adequately pled.
Thus, all elements of unjust enrichment have clearly been
/s/ Michael Massey Michael Massey Fla. Bar No. 153680