Filing # 197455040 E-Filed 05/02/2024 08:56:39 AM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION

UCN: 522023CA008090XXCICI
CASE NO.: 23-008090-CI

PAUL HACKMANN,

plaintiff,

vs.

CITY OF ST. PETERSBURG,

FLORIDA, a municipal
corporation existing under the
laws of the State of Florida,

Defendant.

HEARING ON

DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT filed

1.17.2024 (DOC. 29)

PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION TO DISMISS

AMENDED COMPLAINT filed 1.26.2024 (DOC. 30}

BEFORE: The Honorable Thomas Ramsberger

DATE: Tuesday, April 16, 2024

TIME: Commencing at 3:38 p.m.

PLACE: All Attendees Via Telephone

Conference

Elizabeth Newman, CER

Executive Reporting Service
4699 Central Avenue
St. Petersburg, Florida 33713

***ELECTRONICALLY FILED 05/02/2024 08:56:39 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
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APPEARANCES:

HOWARD P. ROSS, ESQ.

Battaglia, Ross, Dicus & McQuaid, P. A.
The Sembler Center
5858 Central Avenue, Suite A
St. Petersburg, Florida 33707
727—381-2300
[email protected]

Attorney for the Plaintiff

10 JOSEPH P. PATNER, ESQ.

City Attorney's Office
ll Post Office Box 2842
St. Petersburg, Florida 33731
12 727—893—7401
[email protected]
13

l4 Attorney for the Defendant

15

l6

l7

18

l9

20

21

22

23

24

25
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P R O C E E D I N G S

THE COURT: The 3:30 hearing, this is Case

No. 23-8090. Do we have counsel on for the

plaintiff?
mflmmwaH MR. ROSS: Yes. Howard Ross for the
plaintiff.
THE COURT: All right. Good afternoon to you,
counsel.

And how about on behalf of the City of

10 St. Petersburg?
ll MR. PATNER: Good afternoon, Judge. Joseph
12 Patner for the City of St. Pete.
l3 THE COURT: All right. Good afternoon to you.
l4 And do we happen to have a court reporter
15 today?
16 MS. NEWMAN: Yes, Your Honor, this is Lizz
l7 Newman --
l8 MS. MASSIE: Yes, we do, Judge. Good
l9 afternoon. It's Lucy Massie with Huseby.

20 THE COURT: Okay.

21 MS. NEWMAN: I'm also a separate -— we've got

22 two court reporters. I'm Lizz Newman from

23 Executive, hired by the City.

24 THE COURT: Okay. Mr. Patner, you ordered --
25 this is your motion to dismiss today; correct?
 Page 4
MR. PATNER: It is my motion, Judge, and I did
order a court reporter, and I'm ready to proceed
when the Court is ready for me.
THE COURT: Okay. So the way I usually
mflmmwaH resolve this is whoever's motion it is to be

heard, I'll let that court reporter remain.

So I -— forgive me, I lost track. Who was

hired by the City?
MR. PATNER: The Executive Court Reporting,

10 Judge.

ll MS. NEWMAN: Lizz Newman, Executive Reporting

12 Service.

l3 THE COURT: Your name again, ma'am?

l4 MS. NEWMAN: Lizz Newman.

15 THE COURT: Lizz Newman. All right.

16 Ms. Newman, we'll have you stay.

l7 And Lucy Massie, we'll have you go have a good

l8 rest of your day, Ms. Massie. Okay?
l9 MS. MASSIE: Okay. Thank you.

20 THE COURT: Thank you-all.

21 All right. And counsels, I pulled up my
22 notes. Looks like we were here on December 6 for

23 a one-hour hearing on defendant's motion to

24 dismiss. There was some information about more

25 definitive statement, et cetera.
 Page 5
So, looking at the docket, today is,

Mr. Patner, your motion to dismiss the amended

complaint that was filed; correct?
MR. PATNER: That's correct, Judge.

mflmmwaH THE COURT: All right. And let me make sure I

understand.
Mr. Ross, your amended complaint was filed on
January 5 of 2024; correct?

MR. ROSS: I believe so. Yeah.

10 THE COURT: Okay. And I have a -- the

ll defendant, your motion pulled up.

12 And then, Mr. Ross, you also filed a response

l3 to that motion on January 26. I have that pulled

l4 up as well.

15 So as to not run out of time, if we can just

16 be efficient with the arguments. I'll have

l7 Mr. Patner go ahead and argue your motion, and

l8 then Mr. Ross can respond. Okay?

l9 MR. PATNER: Thank you, Judge.
20 As the Court noted, we're here on my motion to

21 dismiss the amended complaint. The prior

22 complaint was dismissed following our motion with

23 leave to amend.

24 The facts here are really kind of

25 straightforward. I‘m going to talk about the

 Page 6
complaint first. But it revolves around the fact
that the City sold some land to a neighbor of the

plaintiff. The City did not sell any land to the

plaintiff.
mflmmwaH The plaintiff is mad and complains about,

legally, that we didn't sell to him and is trying

to force a sale from the City of St. Petersburg to

the plaintiff.

And so when I look at the complaint itself,

10 there's a couple paragraphs I want to draw

ll attention to.
12 Paragraph 15 of the amended complaint,
l3 plaintiff alleges that the City never said it
l4 wouldn't sell to the plaintiff.

15 Well, I mean, that doesn't mean anything. We

16 probably didn't tell anybody we wouldn't sell in

l7 the entire city.

l8 In paragraph 25, they allege, well, there's an

l9 oral or written contract for the sale. Well,

20 which is it?
21 Now, they so desperately don't want to say
22 there's no written contract because that's fatal

23 to their complaint under the statute of frauds.

24 And if there had been a written contract, we know

25 darn well it would be attached to the complaint
 Page 7
and they would reference it.
So by the statement in paragraph 25, it's

either an oral or written contract, really tells

us they don't have a contract.

mflmmwaH In paragraph 29, again they say the City gave

no reason not to sell to the plaintiff. Well,

that tells us two things: One, it says that the

City didn‘t want to sell because it didn't get

sold under no contract. And secondly, it's based
10 upon a legal fiction that I have to give them a
ll reason why we wouldn't sell.
12 In paragraph 30, it's mentioned that the City

l3 entered into a contract with the neighbor. And

l4 that's correct. That is a written sales contract.

15 And they attach the neighbor's contract in

16 paragraph 32, which really I think works against
l7 what they're trying to say. Because if there had
l8 been a written contract, they would have attached
l9 it.

20 If the City wanted to contract the sale of the

21 property, we certainly have the ability to do so

22 by virtue of the sales contract that's attached
23 regarding the neighbor.
24 In paragraph 33 of the complaint, it states

25 that the City refused to sell to the plaintiff.

 Page 8

Well, yeah, we know that, because there's no

contract.

And in paragraph 39 of the amended complaint,

it says the City refused to prepare a contract for

mflmmwaH the sale of the property. Again, it's consistent

with what I said a moment ago.

And then in paragraph 46, there's some
reference to negligence action. And I'm not sure
how that fits in to what they're trying to say
10 here. So that's their allegations.

ll And, Judge, so what we have here is there's

12 two reasons independently why my motion to dismiss

l3 should be granted.
l4 First of all, as I'm sure the Court is

15 probably anticipating, there is no written

16 contract. And the plaintiff is attempting to
l7 artfully plead his way around the statute of
l8 frauds.

l9 But the fact of the matter is the statute of

20 frauds for the sale of real estate requires a

21 written contract.
22 That's one of the things we all learned —- one

23 of the first things we learned in our first

24 property classes. It's barred by Florida law,

25 this attempt to backdoor this or force a sale upon

 Page 9
us.

The leading case is DK Arena versus EB

Acquisitions. And I'm not going to beat it to

death, but it says "unless memorialized in a

mflmmwaH written document signed by the parties," there is

no -- there is no contract for real estate. There
is no promissory estoppel in Florida in regards to

written contracts.
I found an interesting citation when I was

10 checking in Lexis the DK Arena to make sure it was

ll good law, and I see this Court cited it in Reagh

12 versus HSBC with a Lexis cite, where this Court

l3 dismissed a complaint on similar facts for not
l4 attaching the written contract which would form
15 the basis of the sale of real estate.

16 And this Court noted that "The statute of

l7 frauds cannot be circumvented by artfully

l8 pleading." That was a quote. And that's Your

l9 Honor cites to DK Arena in that regard.
20 That in itself should be the end of this,

21 Judge. But since we're dealing with the

22 government, there's a secondary part of it. And

23 that's the case law I cite in Section B.

24 When you're dealing with the government, the

25 Court in City of Orlando versus West Orange and
 Page 10
others state not only does it have to have a
signed contract, it has to be signed by the -—
signed by the party, the governmental party.
In this case, it would have to be the City

mflmmwaH Council approval and signed by the mayor's office.

They have nothing along these lines. They have

nothing.

And then in addition, and going along with

that, sovereign immunity would prevent the

10 enforcement of a purported contract which was
ll never formally adopted by the government body.
12 And that's I‘m citing to Pan-Am Tobacco versus
l3 Department of Corrections.
l4 Judge, if they had had a hint of a contract,

15 they would have -- they would have attached it to

16 the complaint.

l7 The clearest evidence that there was no

l8 agreement to sell this property to Mr. Hackmann is

l9 the fact that we're here today. If the City had

20 wanted to sell, we would have.

21 And I just want to take a moment and then

22 respond to the plaintiff's response, I guess.

23 If you go through it, Judge, it seems to focus

24 almost entirely on this concept of waiver. And

25 the DK Arena case discusses waiver as well.
 Page ll
Yes, the law is if you have a written

contract, you could waive aspects of that contract

through non—written mechanisms, and that sort of

makes sense. And the DK Arena case goes through
mflmmwaH that. If you have a written real estate contract,

you can waive some of those rights through

non—written mechanisms.
However, the vice versa is not true. And
that's what they try and argue in their response,

10 that if you -- instead of saying you can waive

ll your written contract by oral actions, they're

12 trying to say you can have an oral agreement and
l3 waive it into a written contract.
l4 And there's just zero support for that in the
15 case. There's zero support for that in Florida

16 law.

l7 So, Your Honor, they had an opportunity to

l8 file an amended complaint. At this time, Judge,

l9 I'm requesting that this Court grant my motion

20 with prejudice and for the reasons before stated.

21 And if the Court would give me an opportunity
22 for two minutes on the back. And I know the Court

23 did not say that upfront. If you're not going to

24 do that, I understand, but I would request just

25 two minutes on the back end, Judge.
 Page 12
THE COURT: All right. And counsel, typically
what I do is let the person who filed the motion

make the argument, I hear a response, and if time

permits, a quick rebuttal.

mflmmwaH
So, Mr. Patner, if time permits, there will be

allowed a quick rebuttal of anything I haven't

already heard today.

Mr. Ross, if you'd like to go ahead and make

your response on the record. I also have your

10 written response in front of me.
ll MR. ROSS: Yes, Your Honor. May it please the
12 Court.

l3 I would like to first discuss Mr. Patner's

l4 comments. What sense would it make to waive the

15 statute of frauds if you have a written contract?

16 I do not recall seeing anything in the DK

l7 Arena case that says you cannot waive the statute

l8 of frauds for an oral contract. What else do you
l9 waive the statute of frauds for, for an oral
20 contract.

21 The contract involved was an oral contract.

22 And in some of the cases that are cited, the

23 contract is an oral modification of a written
24 contract where the oral modification would, but
25 for the waiver concept, require a writing. So
 Page l3
that concept seems contrary to DK Arena and

contrary to the law.

The need for a written contract is subject to

the ability to waive that right. Both DK and the

mflmmwaH other cases Cited say that. So it is not cast in

stone that every oral agreement has to be in

writing. There are the waiver part.

What DK did -- and the Court apparently is

quite aware of that case -— was say you can't have

10 promissory estoppel. I'd like to note that we

ll don't have any reference in DK or the other cases

12 to the other estoppel, equitable estoppel, for

l3 example.

l4 But that's not before the Court today because

15 the complaint does not raise equitable estoppel.

16 That may be coming, but it's not here today.

l7 This is not the first time the City has made

l8 the statute of frauds and sovereign immunity

l9 argument in a motion to dismiss.

20 The last motion to dismiss argued attaching a

21 copy of the contract, statute of limitations,

22 statute of frauds, immunity, mandamus, the more

23 definite statement, and other matter. We're down

24 to two items, the statute of frauds and the -— and

25 the immunity.
 Page 14
The amended complaint we are here on today

alleges the parties agreed to an express contract.

The express contract, I believe, is used

throughout DK.
mflmmwaH And in paragraph 27 of the complaint, it's
alleged that we've got the express contract
alleged, and then we allege the waiver of the

objection. So that's the structure we're in

today.

10 We are in a motion to dismiss, and the Court

ll is well—aware of what it has to do and what it

12 cannot do in a motion to dismiss.

l3 The cases, DK and the authorities that recite

l4 it, refer to say that waiver applied. I think

15 one -- one commentator says the -- the Court left

16 a bone for the -- for the lawyers.

l7 Given what went on at the last hearing, I

l8 think I'll stop right there.

l9 THE COURT: I'm sorry, Mr. Ross. I'm a little

20 confused. What was that last comment?

21 MR. ROSS: Oh, I was making a jovial reference

22 to the conversation you had about referring to the

23 horse and the dog at the last hearing.

24 THE COURT: Oh. Oh, oh, oh. Okay. I'm

25 sorry. The hearing prior to yours starting today.

 Page 15
I got you. Thank you. I enjoyed that levity.
MR. ROSS: Yeah. So --

THE COURT: All right. Does that -- does that

conclude your response?

mflmmwaH MR. ROSS: Not quite yet.

Well, we have not sought relief for promissory

estoppel. The complaint is crystal clear that

it's based on waiver. And DK Arena is clear that
waiver is still a good defense to the statute of
10 frauds.

ll So on that basis, we think that ground, that

12 one of the two grounds of the statute of the

l3 argument is not well-taken under the facts of this

l4 case.

15 There is one case we cited, Gatti, G-a-t-t-i,

16 that makes it clear that it said, "However, in DK

l7 Arena, the Florida Supreme Court noted that the

l8 doctrine of waiver was still available as a

l9 defense to the statute of frauds."
20 So that is a valid Supreme Court approved

21 method of not having a written contract. There

22 are also other primary and secondary authorities

23 in the response that support that position.

24 One of the cases says the primary purpose of

25 the statute of frauds is assumed to be

 Page l6
evidentiary, to provide reliable evidence of the
existence of the terms of the contract.
We have the existence of the terms of the

contract. That is why the neighbor's contract and

mflmmwaH all the stuff about the neighbor, that's one of

the reasons why that's in the complaint, because

we don't have the fear of not having a -— having

contract terms that would be in dispute if we have

an oral contract.

10 We have the terms upon which the City sell.

ll Those terms are approved by everybody as necessary

12 on the City‘s side to approve the terms once the

l3 blanks are filled in.

l4 We also have the purchase price because the

15 City went out and got -- got an appraisal and took

16 half of the appraised value from the neighbor, and
l7 half would come from my guy.

l8 So the core reason for the statute, which is

l9 the fear of not -- of having a battle over the

20 terms, doesn't exist. They're there, and they're

21 ready to go into a contract.
22 At this stage of a motion to dismiss with not

23 even an answer being filed, the complaint -- and a

24 complaint alleging a waiver and an express
25 contract, a dismissal is premature, and certainly
 Page l7
a dismissal with prejudice is premature.

Immunity -- I'm moving on. Immunity is

discussed on pages 5 to 10 of the response. The

complaint alleges there's an express agreement, as

mflmmwaH
I've mentioned a couple, and a course of conduct

between the parties.

And the authorities in the response say that
those two allegations offer defense to immunity of

the City. And in light of those two items, the

10 City no longer has its immunity and has to live
ll with its contracts like the rest of the world
12 does.

l3 Then the waiver argument would also apply to

l4 sovereign immunity. They can waive that.

15 In one of the cases cited, Sarasota County --
16 County Hospital or Public Hospital, the Court said
l7 "Where an agreement is arrived at by words, oral

l8 or written, the contract is said to be express.

l9 Several writings may constitute a valid contract."

20 So as far as attaching the contract or not

21 having a contract, it's too soon. We don't have

22 discovery. We could have a series of emails that

23 the Court finds constitute a written contract.

24 But as I said earlier, we don't need a written

25 contract because DK Arena says if they waived --
 Page 18
that if the City waived that requirement, we're

entitled to proceed without a written contract.

In the Sarasota case, they took "written,
legislative enactments directing remuneration to a
mflmmwaH private hospital in exchange for services" was
recognized in a -— either a waiver of sovereign
immunity or the formation of a contract.
So one of the cases talks about what I think

the City is saying that you have to have this

10 document that‘s signed and it's all pretty and

ll tight and everything in the right form. And the
12 case says, no, that‘s not what's required.

l3 Like with the statute of frauds at this stage

l4 of this case, the amended complaint, based on the

15 cited authorities, alleges enough to defend both

16 the statute of frauds and immunity at a

l7 pleading -- at a pleading level. We're nowhere

l8 near evidence.
l9 And the motion should be denied and the City
20 required to answer the amended complaint, and we
21 go forward with the case. Thank you.
22 THE COURT: Mr. Ross, before I give a quick

23 rebuttal to Mr. Patner, I'd just like to ask at

24 least a couple of questions for clarity's sake.
25 Part of the argument that I heard made, and
 Page l9
it's in your written response, and this was made

at the prior hearing on the original motion to

dismiss the original complaint, you put in your

complaint the word "express contract" in quotes.
mflmmwaH
I've been scrolling through this complaint and

I've kind of lost my place as to where it is. But

you've identified an express contract, not a

contract in writing, per se, but an arrangement

between the plaintiff and the defendant that
10 creates an express contract.
ll So where in the allegations of this complaint

12 does it identify somebody on behalf of the City

l3 that would have had the authority to enter into a,

l4 quote, "express contract" with the plaintiff? Is

15 that paragraph 19?

16 MR. ROSS: I have to grab it. But the

l7 complaint does not --

l8 THE COURT: I'm sorry. Hang on one second.
l9 I'm sorry, Mr. Ross, hang on.

20 Who has joined the call, please?

21 SPEAKER: Oh, I apologize. It's out of date.

22 I'm sorry.

23 THE COURT: I believe they -— they called in

24 and hung up.
25 Mr. Ross, is your client joining us today?
 Page 20
MR. ROSS: No.

THE COURT: Okay. Mr. Patner, do you have

anybody joining us today?

MR. PATNER: NO, Judge.

mflmmwaH THE COURT: All right. Sorry for the

interruption. I heard someone call in, and
obviously they said something about "out of date"
and hung up. Notwithstanding.

So, Mr. Ross, if you could help me understand,

10 is it paragraph l9 that you're alleging the person

ll that was speaking on behalf of the City in this,

12 quote, "express contract" relationship?

l3 MR. ROSS: The complaint lists a whole bunch

l4 of people. It doesn't name one person who did it.

15 It says my guy was dealing with all these people

16 with the City, and they between them reached an

l7 express agreement.
l8 That's the extent to which the complaint

l9 currently alleges being the nature of the express

20 agreement.
21 THE COURT: Well, I see in paragraph l9, Diane

22 Bozich, B—o—z-i—c-h, real estate specialist,

23 property management on behalf of the City. Who

24 else is identified in the complaint? Perhaps I

25 just missed. Other than that name.

 Page 21
MR. ROSS: Maybe it's in the response. Here,

it's the amended complaint, Document 26, Exhibit B

hereto, alleges that after a course of dealing

between plaintiff and the following agents,

mflmmwaH paragraph 2 of the response.

And it named Alfred Wendler, Aaron Fisch,

James Corbett, Diane Bozich, also known as

whatever her maiden name was. Debbie Raley, Evan

Burkey, Dirck Lutz, Jeannie Rebholz, Tucker

10 Hodges, Anthum Rivers, Ava Nelson, as well as

ll Weaver. That's in paragraph l3 of Exhibit A.

12 THE COURT: All right. So Mr. Ross, that's

l3 paragraph l3 of your complaint, then; correct?

l4 MR. ROSS: That's what the response appears to

15 say.

16 THE COURT: All right. I'm reading from your

l7 amended complaint. I think you've kind of gone

l8 over what paragraph l3.

l9 So to make it clear, what I want to understand

20 is, so the plaintiff's position is, by speaking to

21 several people -- and I'll quickly count, one,

22 two, three, four, five, six, seven, eight, nine,

23 ten, eleven, twelve, if I've got the number

24 correct -- by speaking to twelve different people

25 at the City, and I don't know their various
 Page 22
titles, et cetera, but it seems to me that there's

not a representation that anybody spoke with the

mayor or City Council or an attorney for the City.

But what plaintiff's argument here is, by

mflmmwaH speaking to twelve different people at the City,

the plaintiff and those twelve people put

together, those conversations amount to an express

contract for the purchase and sale of real estate?

MR. ROSS: Yeah. Yes. The sum total of all

10 that went on is what the case law seems to call an

ll express contract.
12 THE COURT: And then the other question I have
l3 is this: In paragraph 37 and in paragraph 38 the

l4 same, paragraph 37 says that the "Defendant

15 prevented or hindered the plaintiff's fulfillment

16 of any condition to plaintiff's right to

l7 purchase."

l8 That Paragraph 37 seems to be indicating a

l9 right to contract, not interfere with an existing

20 contract.

21 Can you help me under -- help me understand.

22 What do you mean in paragraph 37, that the

23 defendant, who's an alleged party to a contract,

24 so one party to the contract prevented or hindered

25 the plaintiff from fulfillment of any condition to

 Page 23
the right to purchase its share of the defendant's

surplus parcel?

MR. ROSS: The theory or what's behind that is

basically that they're complaining they didn't

$4001.5me
have a filled—in blank contract. And I'm saying
the City prevented that by not filling in the

contract.

THE COURT: So you're saying the City gave a

contract to the plaintiff at some point?

10 MR. ROSS: No, the -- the neighbor's contract

ll is a form contract with blanks filled in.

12 THE COURT: I understand.

l3 MR. ROSS: And I believe that's alleged in the
l4 complaint. And then ——
15 THE COURT: I understand. So let me get to my

16 next question, then. I'm sorry, Mr. Ross. Go

l7 ahead, please. Didn't mean to interrupt you.

18 MR. ROSS: Go ahead.

l9 THE COURT: Well, I'm getting to that question

20 next is -- the next question is, if I understand

21 this, how this lays out correctly, then, in your

22 allegations, because this is what was argued

23 before, is the City presented a contract to the

24 neighbor. The City and the neighbor end up

25 executing on that contract, and there's a purchase

 Page 24
and sale.
And the argument is that just because the City
doesn't present the plaintiff with that same

contract, that's what the City could have or

mflmmwaH should have done, and had they presented that

contract, then these conversations amongst

twelve people or emails, et cetera, would have put

the terms of that contract into those blank

spaces.

10 Have I followed your argument through?

ll MR. ROSS: Pretty much. The terms were —- are

12 determined by the neighbor's contract because

l3 these are equal parcels and they're selling for
l4 the same price and the same terms.

15 So the people didn't have to come up with ——

16 not all of them had to come up with it, but the

l7 City -- what's alleged is they got an appraisal,

l8 And half the appraised price is the purchase
l9 price. So that's where the purchase price comes

20 from.

21 THE COURT: Okay.

22 MR. ROSS: And I think I've lost track of the

23 question.
24 THE COURT: That's fine. Let me move, because

25 it's 4:09 and we‘ve run out of time, let me move

 Page 25
to Mr. Patner on any rebuttal that I haven't

already heard.
Counsel, go ahead, please.

MR. PATNER: Very quickly.

mflmmwaH There is zero case law to support plaintiff's

position that somehow they could force this upon

us.

The Sarasota case that counsel referred to a

couple times is not a real estate contract. The

10 DK Arena case is a real estate contract, and it is

ll in writing.

12 If they had a written contract, it would have

l3 to -- back up.

l4 We know there's no written contract. They had

15 to attach this or it's a fatal defect of the

16 complaint. They don't have a valid written real

l7 estate contract. They can't force this upon the
l8 government.
l9 There is no waiver of sovereign immunity or

20 any of these other things plaintiff is discussing.

21 There is no case law to support any of that.
22 Thank you, Judge.

23 THE COURT: Mr. Patner, have you had a full

24 opportunity to argue your motion today?

25 MR. PATNER: I have, Judge. Thank you.
 Page 26
THE COURT: Thank you.
Mr. Ross, have you had a full opportunity to
respond to the motion today?

CDQOWU'I‘bL/JNl—l
MR. ROSS: I have.

THE COURT: Okay. I'll back up a half a step

as I'm making the ruling on this motion.

I'll ask Mr. Patner, since it's your motion,
go ahead and prepare an order from today.

At the hearing on December 6, 2023, on the

10 original motion to dismiss, I was giving latitude

ll to the plaintiff to attach a written contract if

12 one existed, because I was unclear at that point

13 if one was existing because the allegations

l4 indicated that it may be a written contract; it

15 may not.
16 The use of the term "express contract," in my
l7 understanding of that term, "express" means
18 reduced to writing. However, for the contract —-

l9 for the case law that plaintiff is arguing,

20 perhaps there's other, quote, "express contracts"

21 that can be culled together from information.
22 I agree with defense counsel. The statute of

23 frauds is absolutely clear that when it comes to

24 the purchase and sale or other transactions

25 related to real estate, it shall be in writing.

 Page 27
And so the statute of frauds in and of itself
prevails in granting the motion to dismiss with
prejudice.
I don't disagree with plaintiff's counsel that

mflmmwaH there may be circumstances under some

circumstances, some facts, some scenarios that a

Court might find an express contract exists.
But I would believe that if an express
contract were to find exists, it wouldn't be
10 having the subject of that contract be the
ll purchase and sale of real estate.
12 So I disagree with the arguments of plaintiff
l3 that culling together twelve conversations, at

l4 least with twelve different people, other

15 documentation such as emails, et cetera, somehow

16 develops an express contract.
l7 The statute of limitations dictates that it be

l8 expressed in terms of being in written format with

l9 the basic terms.

20 I also disagree that the -- and this is my

21 phraseology -- the terms of the contract can be
22 pieced together, especially using a contract used
23 by a neighbor. I would think that argument would
24 lend itself to have to bring in any contract that
25 the City of St. Petersburg enters into relative to
 Page 28
real estate.

And then, finally, with regard to the defense

counsel's argument that there is no promissory

estoppel with regard to a written contract that

mflmmwaH
I'm aware of, counsels didn't really argue that in

terms of the case law, but there's also the

argument that, you know, sovereign immunity

discusses the idea -- and I'm confident
plaintiff's counsel is well—aware of this —— it
10 takes a level of authorizations for any

ll governmental entity to enter into a contract, let

12 alone execute on that contract.
l3 And as Mr. Patner was describing, in practical
l4 terms, it would require not only the signature of

15 a mayor or some higher up administrative authority

16 on behalf of the City, it would still be subject

l7 to approval by a City Council.

l8 And so, without a written contract, there's

l9 nothing to have be signed by a mayor or a
20 designee, and there's no written contract that
21 would then have to be followed up with approval by
22 a City Commission.

23 So for all those reasons, the Court agrees

24 with defense counsel that not only should the

25 complaint be dismissed, but it should be dismissed
 Page 29
with prejudice.

So, Mr. Patner, you have a court reporter

today. I usually give counsel the option. You're

welcome to recite my recitation and my rationale

mflmmwaH and my bases for reaching my decision, or you're
welcome to rely on a reference that the motion to
dismiss with prejudice is granted for the reasons
stated on the record. Which do you prefer?
MR. PATNER: Judge, the second I think would
10 be more accurate and less writing on my part.

ll THE COURT: All right.

12 Mr. Ross, does that work for you in terms of a

l3 recitation in the order that basically says that

l4 the order is granted with prejudice for the

15 reasons stated on the record?

16 MR. ROSS: Except the record will not exist if
l7 it's not transcribed with the Court's ruling.

l8 THE COURT: Mr. Ross --

l9 MR. ROSS: I need either the transcript or an

20 order that includes all of what you said.
21 THE COURT: Okay. Mr. Patner, do you mind

22 ordering the transcript, and we'll have a cost

23 paid by plaintiff and a cost paid by defendant?
24 MR. PATNER: That's fine, Judge. Thank you.
25 THE COURT: All right. So Mr. Ross, we'll
 Page 3O
have Mr. Patner order the transcript, all right,

with Ms. Newman today, and copies, the cost of

that will be shared equally by plaintiff and

defense. Does that work for you, Mr. Ross?

mflmmwaH MR. ROSS: It does.

THE COURT: Okay. So then, Mr. Ross, if you

have a copy of the transcript, are you comfortable

with the order reflecting "for the reasons stated
on the record," then?

10 MR. ROSS: I think I would prefer it refer to

ll the "reasons stated in the transcript," since

12 we're going to have it.

l3 THE COURT: And perhaps I'm not communicating

l4 well, but my reference to "the record" means the

15 official transcript of the proceeding today.

16 Let me back up a half a step.

l7 Mr. Ross, I would welcome you to prepare the

l8 order, and if you'd like to track all of the

l9 pronouncements that I made for the bases in

20 reaching my decision, you're welcome to.
21 I find that part of my job should be to tell

22 parties how I reached my decision. Sometimes on

23 more simpler matters, such as discovery type
24 requests that are routine, I don't go through that

25 much of analysis.
 Page 31
Part of my full-blown analyses have to do with

non-jury trials and motions for summary judgment

because those are evidentiary hearings.
So somewhat in between those two types of

mflmmwaH examples, the motion to dismiss today, although

relatively rudimentary, adding the component that

it's with prejudice, I think deserves an
explanation.

So, Mr. Ross, if you would like my

10 pronouncement to be included in the order, I'll

ll simply shift from Mr. Patner to let you prepare it
12 based upon getting a copy of the transcript, or we
l3 can simply put in the order that "for the reasons

l4 stated on the record," and the record is

15 whatever's in the transcript. Mr. Ross, what

16 would you prefer?

l7 MR. ROSS: That last -- that last thing. All

l8 I need is a reference to the what is the record.

l9 Because there was -- that the transcript is the
20 record.

21 So I think your last comment is fine, that the

22 order is granted -- or the motion is granted based
23 on -- you can call it "the record" and maybe in

24 parentheses put "transcript dated so—and-so."

25 That‘s all I need is an incorporation by
 Page 32
reference of the transcript. I'm not suggesting

that he has to repeat every word that's in the

transcript. As long as I have a copy and he has a

copy and there's a copy in the court file, my

mflmmwaH needs are met.

THE COURT: Mr. Patner, what's your position

on an order that would include "as stated on the

record," parentheses, "and described in the court

reporter's transcript of the hearing"?

10 MR. PATNER: That's fine, Judge. I can put

ll that language in there.

12 THE COURT: That sounds good.

l3 So, Mr. Ross, you're in agreement with a

l4 reference and parenthetical for the transcript of

15 the court reporter of the hearing; correct?

16 MR. ROSS: Correct.

l7 THE COURT: Okay.

l8 So, Mr. Patner, any questions about what's in

l9 the order today? And is there anything else you

20 believe the Court ought to address in that order
21 today?
22 MR. PATNER: No and no, Judge.

23 THE COURT: How about, Mr. Ross, any questions

24 about the order from today? And is there anything
25 else you'd like to address in that order today?
 Page 33
MR. ROSS: No, Judge.

THE COURT: Okay. If there's nothing else,

then, Mr. Patner, please prepare that, run it by

Mr. Ross. Please get it uploaded to JAWS in the

mflmmwaH next two to three business days.

MR. PATNER: Yes, Judge.

THE COURT: And if there's nothing else, then,

counsels and court reporter, everybody on this

call, have a great rest of your day. Okay?

10 MR. PATNER: Thank you, Judge.
ll MR. ROSS: Thank you, Judge.
12 THE COURT: Thank you—all. Thank you. Take

l3 care.

l4 (Proceedings concluded at 4:19 p.m.)

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 Page 34
CERTIFICATE OF TRANSCRIBER

STATE OF FLORIDA )

COUNTY OF PINELLAS )

I, Donna W. Everhart, RMR, RPR, FPR, CLR, for

Executive Reporting Service:

DO HEREBY CERTIFY that the foregoing transcript

pages 1 through 33, inclusive, is a true and correct
record of the proceedings (transcribed to the best of
my ability).

10 I FURTHER CERTIFY I am neither an attorney or

counsel of any of the parties hereto, nor a relative or
ll employee of any attorney or counsel employed by the
parties hereto, nor financially interested in the event
12 of said cause.

l3 DATED this 30th day of April, 2024.

l4

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wow w XMOJ’
18

l9

20 Donna W. Everhart
RMR, RPR, FPR, CLR
21 Executive Reporting Service
4699 Central Avenue
22 St. Petersburg, Florida 33713

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