Opinion
No. 83-1148.
January 17, 1984.
Appeal from the Circuit Court, Dade County, Leonard Rivkind, J.
Scherman Zelonker, and Regina Zelonker, Hialeah, for appellant.
Frank, Strelkow Gay, North Bay Village, and Michael Frank, Miami, for appellee.
Before BARKDULL, BASKIN and FERGUSON, JJ.
Where uncontroverted affidavits and deposition testimony submitted in support of a summary judgment motion showed that the defendant, a business owner, had in 1981 renewed an earlier oral promise to plaintiff, his employee, to give plaintiff ownership in the business upon defendant's retirement in exchange for the plaintiff remaining in his employ, and that within the year defendant retired from the business and sold all his stock in the business to a third party, defendant had not demonstrated conclusively that plaintiff's cause of action for breach of contract was barred by the statute of frauds. Summary judgment was, therefore, inappropriate. There was nothing in the terms of the oral agreement to show that it could not be performed within a year. Further, the fact that the defendant did sell his business interest within a year of the agreement is a strong factor weighing against construction of the agreement as one within the statute of frauds. See Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937); Central National Bank of Miami v. Central Bancorp, Inc., 411 So.2d 358 (Fla. 3d DCA 1982).
Reversed and remanded for further proceedings.