United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
case is before the Court on Defendant Bruce Neal's Motion
to Dismiss. (Doc. 7). Plaintiff Laurie Kelly, who brought
both breach-of-contract and fraud claims following a series
of allegedly broken oral promises (Doc. 2), filed a response.
alleges that at some unspecified time in the past, she and
Neal entered into a fiduciary relationship whereby Neal
became her financial advisor and oversaw her $2.1 million
investment portfolio. (Doc. 2 ¶ 10). Sometime later,
Neal began asking Kelly to provide him with what ultimately
became a lengthy series of personal loans. (Id.
¶¶ 13-21). These loans, totaling $682, 103.55, were
spent on goods and services such as personal training, condo
upgrades, a new car, and Neal's children's tuition.
(Id. ¶ 20). The complaint then alleges that
“[w]ith each loan, Neal reassured Kelly that he would
repay the full amount owed plus interest when he was able. .
. . From year to year, Neal continued to make reassurances
that he would pay back the debt, both orally and through
written communications.” (Id. ¶¶ 22,
24). On July 12, 2017, when Kelly formally demanded
repayment, Neal refused, prompting the present action.
(Id. ¶ 26).
two-count complaint, Kelly contends that: (1) each of the
loans represents discrete oral contracts, and (2) Neal used
his knowledge of her finances and position as a fiduciary to
fraudulently induce reliance upon his repeated promises to
repay his debts. (Id. ¶ 28-44). For the
breach-of-contract claim, Neal counters that the oral
promises were illusory because they lacked consideration and
failed to specify essential terms. (Doc. 7 at 4-8). On the
fraud claim, he argues that the complaint is impermissibly
vague (Id. at 8-11). Neal also raises a statute of
limitations issue as to both counts. (Id. at 12-13).
Breach of Contract
argues that his promise to repay Kelly-to the extent any
agreement existed at all-was illusory and unenforceable
because it failed to specify essential terms, such as
relevant dates and interest rates, and lacked consideration.
(Doc. 7 at 4-7). Under Florida law, oral and written
contracts are subject to the same essential requirements:
offer, acceptance, consideration, and sufficient
specification of essential terms. W.R. Townsend
Contracting, Inc. v. Jensen Civil Constr., Inc., 728
So.2d 297, 302 (Fla. 1st DCA 1999); Winter Haven Citrus
Growers Ass'n v. Campbell & Sons Fruit Co., 773
So.2d 96, 97 (Fla. 2d DCA 2000). “To state a cause of
action for breach of an oral contract, a plaintiff is
required to allege facts that, if taken as true, demonstrate
that the parties mutually assented to a certain and definite
proposition and left no essential terms open.” W.R.
Townsend Contr., Inc., 728 So.2d at 300 (internal
citation omitted). Yet if nonessential terms remain open, an
oral contract remains enforceable. Id. at 302.
“[W]hat constitutes an essential term of a contract
will vary widely according to the nature and complexity of
each transaction and must be evaluated on a case-specific
basis.” ABC Liquors, Inc. v. Centimark Corp.,
967 So.2d 1053, 1056 (Fla. 5th DCA 2007).
putative contract is not complex, involving merely a verbal
promise from Neal to repay Kelly when he was able. The
complaint alleges verbal conversations, as well as the
existence of written records, that evince the necessary
contractual terms. See Doc. 2 ¶¶ 24-25
(illustrating that Kelly provided money to Neal, who
“continued to make reassurances that he would pay back
the debt. . . . [And] [i]n both oral and written
communications over the years, Neal repeatedly acknowledged
the debt he owed.”). This is good enough. See Great
Am. Ins. Co. v. Pino Kaoba & Assoc., Inc.,
08-FL-20847-CIV (S.D. Fla. 2008) (determining that
“notice pleading does not require detailed allegations
concerning the dates and specific terms of the alleged oral
contract, ” and that “further information . . .
as to specific terms of the alleged contracts may be adduced
also argues that the agreement lacked consideration because
it was an “I will if I want to” type of promise.
(Doc. 7 at 7). As Kelly alleges in the complaint, however,
Neal “assured Kelly that he would repay the full amount
owed plus interest when he was able.” (Doc. 2
¶ 22) (emphasis added). “[S]imply because a
contract is unclear as to when payment must be made does not
relieve a party of an obligation to make
payment.” Independent Mortg. & Fin. v.
Deater, 814 So.2d 1224, 1225 (Fla. 3d DCA 2002). Thus,
as Kelly relays the facts, Neal did not agree to pay back his
debt at some indeterminate point in the future; he instead
created a condition upon which his repayment hinged. (Doc. 2
¶ 22). “This type of agreement creates only a
conditional promise to pay so that the creditor is not
entitled to recover on the promise unless the promisor is in
fact able to pay the debt.” Hammond v.
Bicknell, 379 So.2d 680, 681 (Fla. 2d DCA 1980).
it is unclear if Neal could repay his debts. Whether this
condition was met is a fact-sensitive inquiry beyond the
bounds of a Rule 12(b)(6) motion; discovery will shed
additional light on whether the oral contract is enforceable.
Ultimately, Kelly's breach-of-contract claim-short and
plain though it may be-satisfies Rule 8(a)(2).
Fraud in Inducement
posits that Kelly has not pled her fraud claim with
sufficient particularity to withstand a motion to dismiss
under Rule 9(b). (Doc. 7 at 8-11). Under this heightened
pleading standard, a complaint that alleges fraud must set
forth with particularity the circumstances contextualizing
the ostensibly fraudulent statements. United States ex
rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1308
(11th Cir. 2002). Although Rule 9(b) applies to fraud claims,
it “must be read in conjunction with the notice
pleading standard of Rule 8. Particularity is sufficiently
plead when the complaint alleges fraud with sufficient
particularity to permit the person charged with fraud to have
a reasonable opportunity to answer the complaint and adequate
information to frame a response.” Fleeger v.
Wachovia Bank, 5:12-CV-294-Oc-32PRL at *8 (M.D. Fla.
2012) (internal citation omitted). To satisfy rule 9(b), the
Eleventh Circuit often requires complaints to outline the
“who, ” “what, ” when, ” and
“where” of what happened. Mizzaro v. Home
Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008). Yet
such specificity is not always necessary, as
“[a]llegations of date, time or place satisfy the Rule
9(b) requirement that the circumstances of the alleged fraud
must be pleaded with particularity, but alternative means are
also available to satisfy the rule.” Durham v. Bus.
Mgt. Assocs., 847 F.2d 1505 (11th Cir. 1988).
case, considering the simplicity of the fraud claim, the
pecuniary specificity that is alleged, and Neal's likely
knowledge of the relevant circumstances, Neal possesses a
“reasonable opportunity to answer the complaint and
adequate information to frame a response.”
Fleeger, 5:12-CV-294-Oc-32PRL at *8. Rule 9(b) ...