Henry McDowell v. Roger Moore

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HENRY MCDOWELL,

Appellant/Cross-Appellee,

v.

ROGER MOORE and JEFF GARCIA, individually, and

NAUTICAL VENTURES SOUTH, INC., a Florida corporation,

Appellees/Cross-Appellants.

No. 4D2023-2783

[May 6, 2026]

Appeal and cross-appeal from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Mark Alan Speiser, Judge; L.T. Case No.

062014CA008507AXXXCE.

Kelly Ann Lenahan and David Francis Cooney of Cooney Trybus Law,

Fort Lauderdale, for appellant/cross-appellee.

Nancy W. Gregoire Stamper of Birnbaum, Lippman, & Gregoire, PLLC,

Fort Lauderdale, and Richard Alan Ivers of the Law Office of Richard A.

Ivers, Coconut Creek, for appellees/cross-appellants.

KLINGENSMITH, J.

This appeal and cross-appeal arise from a complex commercial dispute

concerning the enforceability of a purported commission agreement, the

scope of fiduciary duties among shareholders, and the procedural

propriety of several trial court rulings. The plaintiff, Henry McDowell,

seeks review of multiple adverse rulings including the entry of directed

verdicts in favor of the individual defendants, Roger Moore and Jeff Garcia,

while the corporate defendant, Nautical Ventures South, Inc. (“NVS”),

challenges the denial of its motion for directed verdict. After careful review

of the record, the briefs, and the applicable law, we affirm the trial court’s

entry of directed verdicts for Moore and Garcia, and reverse the denial of

NVS’s motion for directed verdict. We affirm as to all other issues raised

without comment.

I. Statement of Facts

1

This case arises from a business relationship formed in the context of

evolving contractual expectations concerning compensation through

commissions. McDowell was the founder and original owner of NVS, a

small business engaged in the sale of water sports equipment. At the time

relevant to this dispute, NVS was experiencing significant financial

difficulties, with McDowell unable to operate the business effectively on

his own. At that point, McDowell sought either to bring in additional

partners or sell the company.

In late 2010, McDowell entered discussions with Moore and Garcia to

transfer 80% of his ownership interest in NVS in exchange for a payment

of $5,000 and other consideration. The parties memorialized their

agreement in two documents, a Letter of Intent and a Shareholders’

Agreement. The Letter of Intent stated that Moore and Garcia, through an

affiliated entity, would provide a loan to NVS to alleviate its financial

obligations. They would also assume roles as officers and directors, while

McDowell would remain involved in the business as president and director.

Central to the dispute is the Letter of Intent’s paragraph 13, which

addressed McDowell’s compensation following the transfer of ownership.

That provision stated McDowell would receive a commission on wholesale,

rental operations, and export sales. However, the parties expressly

acknowledged that they had not yet agreed upon a commission schedule

due to time constraints, and would endeavor to do so in good faith after

the agreement’s execution. The provision further stated that the failure to

finalize such a schedule would not render the agreement unenforceable to

the extent permitted by law. The Shareholders’ Agreement incorporated

the Letter of Intent and included a severability clause preserving the

enforceability of valid provisions.

The trial evidence demonstrated that, prior to the Letter of Intent’s

execution, the parties exchanged communications regarding potential

commission structures. McDowell indicated that industry norms ranged

between approximately seven and a half percent and twelve percent, and

expressed a desire to earn income comparable to his prior earnings

through commissions. Moore testified that the parties had anticipated

McDowell might earn between $75,000–$100,000 annually depending on

sales performance, but no specific commission percentage or formula was

finalized. Draft agreements and handwritten notes reflected ongoing

negotiations and differing views regarding appropriate commission levels,

but no definitive agreement was reached prior to the agreement’s

execution.

2

Following the agreement’s execution, the parties continued to operate

NVS, but disputes arose regarding the nature and amount of McDowell’s

commissions. Initially, McDowell received payments that were at times

calculated at a rate of ten percent, though Moore characterized this as a

temporary measure to test such payments’ financial feasibility.

Thereafter, the commission rate was reduced to five percent, with

conflicting testimony as to whether McDowell had agreed to that reduction

or was coerced into accepting it. Additional disputes arose concerning

whether McDowell was entitled to commissions on all qualifying sales, or

only on those sales in which he was personally involved, as well as whether

certain product lines with lower profit margins should be excluded from

commission calculations.

The parties also disagreed over NVS’s financial practices, including the

use of a monthly draw to supplement McDowell’s income, which draw was

later discontinued due to cash flow concerns. Communications between

the parties reflect ongoing disagreements regarding the commission

arrangement’s interpretation, certain product lines’ profitability, and the

overall financial viability of paying commissions at the levels which

McDowell desired. Despite these disputes, McDowell continued to submit

commission reports, at times structuring the reports according to

proposed compromises that were never formally accepted.

In September 2013, at a joint meeting of shareholders and directors,

Moore and Garcia voted to terminate any existing commission

arrangements. By that time, the relationship between the parties had

deteriorated significantly. McDowell thereafter asserted that he was owed

substantial unpaid commissions, both for the period prior to termination

and for subsequent years, calculating his damages based in part on NVS’s

reported sales figures.

When the relationship between the parties became irreconcilable,

McDowell filed suit, asserting claims for breach of contract, fraudulent

inducement, and breach of fiduciary duty against Moore and Garcia, as

well as a breach of contract claim against NVS.

At trial, the court directed a verdict for Garcia on all counts against

him. The jury returned a verdict against NVS, finding that a binding

agreement existed, and awarded damages for breach of contract. The trial

court entered final judgment in accordance with that verdict. The jury

also found liability for breach of contract, fiduciary duty, and fraud against

Moore, but the trial court granted a renewed motion for directed verdict

post-trial for Moore. This appeal and cross-appeal followed.

3

II. Analysis

a. Directed Verdicts for Moore and Garcia

We begin with McDowell’s contention that the trial court erred in

granting directed verdicts for Moore and Garcia on the various claims

against them. A trial court’s ruling on a motion for directed verdict is

reviewed de novo. See MasTec N. Am., Inc. v. Morakis, 288 So. 3d 685, 688

(Fla. 4th DCA 2019). A directed verdict is proper only when, viewing the

evidence in a light most favorable to the nonmoving party, no reasonable

jury could render a verdict for that party. Id. (quoting Houghton v. Bond,

680 So. 2d 514, 522 (Fla. 1st DCA 1996)).

i. Breach of Contract

To prevail on a breach of contract claim, a plaintiff must establish the

existence of a valid contract, a material breach, and damages. See

Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 953 (Fla. 3d DCA

2017). A valid contract requires offer, acceptance, consideration, and

sufficiently definite essential terms. Triton Stone Holdings, L.L.C. v. Magna

Bus., L.L.C., 308 So. 3d 1002, 1006 (Fla. 4th DCA 2020).

The breach of contract claim’s central issue is whether the Letter of

Intent’s paragraph 13 constituted an enforceable agreement obligating

Moore and Garcia to pay commissions to McDowell. Resolution of this

issue turns on the fundamental principles governing contract formation

under Florida law, particularly the requirement that a contract contain

sufficiently definite essential terms to permit enforcement. As such, the

threshold inquiry on this issue is whether the parties formed a valid

contract as to McDowell’s commissions.

Florida courts have consistently emphasized that mutual assent

requires a meeting of the minds on all essential terms. See Triton, 308 So.

3d at 1007–08; Vision Palm Springs, LLLP v. Michael Anthony Co., 272 So.

3d 441, 444 (Fla. 3d DCA 2019); King v. Bray, 867 So. 2d 1224, 1227–28

(Fla. 5th DCA 2004). Where essential terms are left open for future

negotiation, no enforceable contract exists because the court cannot

supply material provisions upon which the parties failed to agree. See

Certified Motors, LLC v. Aventine Hill, LLC, 369 So. 3d 1254, 1257 (Fla. 2d

DCA 2023) (reiterating that it is not the role of the court to create a contract

where the parties have failed to do so). This principle is particularly

important in commercial settings, where the specificity of terms often

defines the scope of the parties’ obligations.

4

In this case, the Letter of Intent’s paragraph 13 expressly provides that

the parties had not agreed upon a commission schedule and would

endeavor to do so in good faith at a later time. The provision identifies

sales categories on which commissions might be paid, but omits any

specification of the commission rate, the calculation method, the duration,

or any objective mechanism by which those terms could be determined.

Each of these components constitutes an essential term in a compensation

agreement of this nature.

Florida law is also clear that provisions leaving essential terms open for

future agreement are unenforceable as “agreements to agree.” In John

Alden Life Insurance Co. v. Benefits Management Associates, Inc., 675 So.

2d 188, 189 (Fla. 3d DCA 1996), the court held that a contractual provision

requiring the parties to negotiate a future bonus was unenforceable

because it lacked definite terms and merely reflected an intent to reach an

agreement later. Similarly, in Certified Motors, the court reaffirmed that

an agreement to agree on material terms at a future date is not a binding

contract. 369 So. 3d at 1258.

The reasoning underlying this rule is straightforward and compelling.

A contract must provide a basis for determining whether a breach has

occurred and for calculating damages. Where essential terms are

indefinite, a court would be required to speculate as to the parties’ intent,

effectively rewriting the agreement. See State, Dep’t of Corr. v. C & W Food

Serv., Inc., 765 So. 2d 728, 730 (Fla. 1st DCA 2000) (“The court could not

afford a remedy for the breach of a promise to negotiate a contract, because

there would be no way to determine whether the parties would have

reached an agreement had they negotiated.”). This would undermine the

principle that contracts derive force from the parties’ mutual assent rather

than judicial construction.

The record here confirms that the parties never reached an agreement

on the essential terms of McDowell’s commission. Pre-execution

communications reflect ongoing negotiations and differing expectations.

McDowell referenced industry norms as a benchmark for the commission

percentages which he sought. Moore, by contrast, testified that any

commission structure would need to be tied to profitability, and the parties

did not agree upon any specific percentage. Draft agreements and

handwritten notes similarly demonstrate that the parties contemplated

different potential structures, but failed to finalize any.

This lack of agreement is further underscored by the parties’ conduct

after the Letter of Intent’s execution. The evidence shows that commission

5

payments were inconsistent, subject to unilateral modification, and the

subject of ongoing dispute. At various times, McDowell received

commissions calculated at different rates, including ten percent and later

five percent, with conflicting testimony as to whether the parties had

mutually agreed upon these changes. The parties also disagreed about

whether commissions applied to all qualifying sales or only those

personally generated by McDowell. These disputes illustrate the absence

of any agreed-upon framework governing commissions.

McDowell argues that the Letter of Intent should nevertheless be

enforced, because it states that the parties’ inability to agree on a

commission schedule would not render the agreement unenforceable.

However, that language is expressly qualified by the phrase “to the extent

enforceable by law.” Florida law does not permit enforcement of an

agreement that lacks essential terms, and parties cannot contract around

this requirement. See Certified Motors, 369 So. 3d at 1258. Thus, the

savings clause does not cure the provision’s fundamental indefiniteness.

McDowell further contends that the commission arrangement

constituted part of the consideration for the transfer of his NVS ownership

interest. Even if we accept that characterization, it reinforces, rather than

undermines, the conclusion that the provision is unenforceable.

Consideration, particularly in the context of a stock sale, must be

sufficiently definite to permit enforcement.

For example, in Zell v. Cobb, 566 So. 2d 806, 808 (Fla. 3d DCA 1990),

the court held no enforceable contract for the purchase of shares existed,

in part because the parties had not agreed to the shares’ price. Similarly,

in Bee Line Air Transport, Inc. v. Dodd, 496 So. 2d 874, 875 (Fla. 3d DCA

1986), the court held that a contract lacking a specified purchase price or

an objective method for determining said price was unenforceable.

Here, the alleged commission served as part of the purchase price, yet

the parties did not agree upon any amount or calculation method. This

absence of definiteness is fatal to contract formation.

McDowell’s reliance on the implied covenant of good faith and fair

dealing is likewise misplaced. That covenant cannot create contractual

obligations where none exist, because the covenant attaches only to the

performance of express contractual terms, and cannot serve as an

independent basis for liability. See Ins. Concepts & Design, Inc. v.

Healthplan Servs., Inc., 785 So. 2d 1232, 1235 (Fla. 4th DCA 2001).

Because the parties never agreed upon enforceable commission terms, no

contractual duty exists upon which the covenant could operate.

6

Finally, McDowell argues that Moore and Garcia breached the

agreement by failing to negotiate a commission schedule in good faith.

However, even assuming such a duty existed, it arises solely from the

unenforceable provision itself. Florida courts have declined to enforce

obligations to negotiate in good faith where the underlying agreement lacks

essential terms, as doing so would indirectly enforce an otherwise invalid

contract. See C & W Food Serv., 765 So. 2d at 729–30 (explaining that an

obligation to negotiate in good faith is, at most, an agreement to agree in

the future and is not enforceable because the parties had not yet agreed

on the essential terms). The absence of a definite agreement precludes

imposing liability for failure to negotiate its terms.

The trial court correctly concluded that no enforceable contract existed

with respect to McDowell’s commissions. Without a valid contract, no

breach could occur as a matter of law. Accordingly, the directed verdicts

for Moore and Garcia on the breach of contract claim were proper.

ii. Breach of Fiduciary Duty

We next consider whether the trial court erred in granting directed

verdicts for Moore and Garcia on McDowell’s breach of fiduciary duty

claim. On this claim, the question presented is whether, viewing the

evidence in the light most favorable to McDowell, a legally sufficient basis

existed for a reasonable jury to return a verdict for McDowell.

To prevail on this claim under Florida law, a plaintiff must establish

the existence of a fiduciary duty, a breach of that duty, and damages

proximately caused by the breach. Brouwer v. Wyndham Vacation Resorts,

Inc., 336 So. 3d 372, 373 (Fla. 5th DCA 2022). It is well established that

majority shareholders in a closely held corporation owe fiduciary duties to

minority shareholders, including the duty not to use the majority’s control

to the minority’s detriment. Granicz v. Moore, 603 So. 2d 103, 104 (Fla.

2d DCA 1992).

Although McDowell correctly asserts that Moore and Garcia, as

majority shareholders, owed fiduciary duties to McDowell, the existence of

such duties does not end the inquiry. The critical question is whether the

alleged breach of fiduciary duty is legally cognizable and sufficiently

distinct from other claims, particularly where, as here, the same

underlying conduct forms the basis of a breach of contract claim.

A breach of fiduciary duty claim cannot be maintained where it is

wholly dependent upon, and not independent from, an alleged contractual

7

relationship that is itself unenforceable. In Zell, the court rejected a

fiduciary duty claim that arose from an alleged contractual relationship,

reasoning that where no contract exists, a plaintiff cannot repackage the

same allegations as a breach of fiduciary duty. 566 So. 2d at 809–10. The

court explained that absent a duty or breach independent of the alleged

breach of contract, the fiduciary duty claim necessarily fails. Id.

The reason for this result is rooted in the distinction between duties

imposed by law and those arising from agreement. A tort claim, such as

breach of fiduciary duty, must rest on obligations that exist independently

of the parties’ contractual expectations. See Frutafino, S.A.S. v. Dole Chile,

S.A., 405 So. 3d 497, 500 (Fla. 3d DCA 2025) (“It is a fundamental,

longstanding common law principle that a plaintiff may not recover in tort

for a contract dispute unless the tort is independent of any breach of

contract.”) (quoting Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300

So. 3d 1236, 1239 (Fla. 3d DCA 2020)). If an alleged breach of fiduciary

duty merely mirrors the failure to perform under an unenforceable

agreement, then recognizing such a claim would effectively circumvent the

requirement that contracts contain definite essential terms. In other

words, a party cannot obtain through tort what it cannot obtain through

contract.

In this case, McDowell’s fiduciary duty claim is not independent of the

alleged commission agreement. The operative complaint alleges that

Moore and Garcia breached their fiduciary duties by failing to pay

commissions and by terminating the commission arrangement. On

appeal, McDowell also argues that Moore and Garcia failed to negotiate a

commission schedule in good faith. However, each of these theories

derives directly from the Letter of Intent’s paragraph 13, which we have

already determined is an unenforceable agreement to agree.

The obligation to negotiate a commission schedule did not arise from

any general fiduciary duty owed by majority shareholders. Rather, the

obligation arose solely from paragraph 13. Because that provision is

unenforceable, it cannot serve as the foundation for imposing liability

under a fiduciary duty theory. See Zell, 566 So. 2d at 810. As previously

stated, to hold otherwise would allow McDowell to enforce indirectly,

through a fiduciary duty claim, a contractual obligation that is

unenforceable as a matter of law. This is precisely the result that Zell

prohibits. 566 So. 2d at 810.

Moreover, the pleadings and evidence do not establish any breach of

fiduciary duty independent of the commission dispute. McDowell does not

allege that Moore and Garcia engaged in self-dealing, diverted corporate

8

opportunities, or otherwise exercised their control in a manner that

harmed him as a minority shareholder apart from the commission issue.

The absence of such independent misconduct further underscores that the

fiduciary duty claim is merely duplicative of the contract claim. See

Frutafino, 405 So. 3d at 500 (explaining that a tort claim “must go beyond

and be independent from the failure to comply with the contract”).

Even if we were to assume that a fiduciary duty could arise in

connection with negotiations between the parties, McDowell’s claim would

still fail because the theory which he advances on appeal was not properly

pled. Florida law requires that a party’s claims be set forth in the pleadings

with sufficient specificity to provide notice to the opposing party. See

Schneider v. First Am. Bank, 336 So. 3d 43, 47 (Fla. 4th DCA 2022). A

trial court lacks authority to award relief on an unpled theory unless the

issue was tried by consent. Id.

Here, McDowell’s operative complaint alleges that Moore and Garcia

breached their fiduciary duties by failing to pay commissions owed under

the agreement. The complaint does not allege that they breached a duty

by failing to negotiate a commission schedule in good faith. This

distinction is significant. A claim based on failure to pay under agreed

terms is materially different from a claim based on failure to reach

agreement in the first instance. The former presupposes the existence of

agreed terms, while the latter challenges the negotiation process itself.

The record further reflects that McDowell attempted to add a failure to

negotiate theory through a proposed amended complaint, which the trial

court denied. Under these circumstances, allowing McDowell to proceed

on that theory at trial would undermine the purpose of the pleading

requirements and result in unfair surprise to the defendants. Schneider,

336 So. 3d at 47.

McDowell’s assertion that the issue was tried by consent does not

salvage the claim. Although issues not raised in the pleadings may be

tried by consent where evidence is introduced without objection, this

doctrine does not apply where the evidence is relevant to issues already in

the case. Anchor Prop. & Cas. Ins. Co. v. Trif, 322 So. 3d 663, 670 (Fla.

4th DCA 2021). The evidence concerning the parties’ negotiations was

plainly relevant to the breach of contract claim and therefore cannot be

construed as consent to try a separate fiduciary duty theory. Additionally,

the trial court expressly preserved the defendants’ objections to

McDowell’s unpled claims, further negating any inference of consent.

9

Finally, even if the fiduciary duty claim were otherwise viable, the

absence of an enforceable contract would preclude recovery of the

damages sought. McDowell’s damages theory is based entirely on the

commissions which he contends he should have received. Without a valid

agreement establishing entitlement to those commissions, any award of

damages would necessarily be speculative. Florida law does not permit

recovery of speculative damages. See Gonzalez v. Barrenechea, 170 So. 3d

13, 16 (Fla. 3d DCA 2015); W.W. Gay Mech. Contractor, Inc. v. Wharfside

Two, Ltd., 545 So. 2d 1348, 1350–51 (Fla. 1989).

In sum, while Moore and Garcia owed fiduciary duties to McDowell as

majority shareholders, the conduct alleged as a breach of those duties is

not independent of the unenforceable commission agreement. The

fiduciary duty claim is therefore barred as a matter of law under Zell. 566

So. 2d at 810. Additionally, the theory advanced on appeal was not

properly pled and was not tried by consent. For each of these reasons, the

trial court correctly entered directed verdicts for Moore and Garcia on the

breach of fiduciary duty claim.

iii. Fraudulent Inducement

We next address McDowell’s claim that the trial court erred in granting

directed verdicts for Moore and Garcia on McDowell’s fraudulent

inducement claim. The determinative question here is whether the

evidence, viewed in the light most favorable to McDowell, was legally

sufficient to support each element of fraudulent inducement. We conclude

the trial court correctly directed verdicts on this claim for Moore and

Garcia for four reasons.

Fraudulent inducement requires proof of a false statement concerning

a material fact, knowledge by the representor that the statement is false,

an intention that the representation induce another to act on it, and

consequent injury to the party acting in justifiable reliance on the

representation. Prieto v. Smook, Inc., 97 So. 3d 916, 917 (Fla. 4th DCA

2012) (quoting Shakespeare Found., Inc. v. Jackson, 61 So. 3d 1194, 1199

n.1 (Fla. 1st DCA 2011)). The doctrine is designed to remedy situations in

which a party is induced to enter into a contract by misrepresentations of

existing fact. The doctrine does not extend to mere promises of future

conduct or statements of opinion. See Tres-AAA-Exxon v. City First Mortg.,

Inc., 870 So. 2d 905, 907 (Fla. 4th DCA 2004); Vance v. Indian Hammock

Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1371–72 (Fla. 4th DCA 1981).

A critical limitation on fraudulent inducement claims, like breach of

fiduciary duty claims, is that the alleged misrepresentation must be

10

independent of the promises contained in the contract itself. See

Frutafino, 405 So. 3d at 500. A party cannot recast a breach of contract

claim as a tort claim for fraud where the alleged misrepresentation relates

to the same subject matter as the contract. See B & G Aventura, LLC v. G-

Site Ltd. P’ship, 97 So. 3d 308, 309–10 (Fla. 3d DCA 2012). This too

prevents tort law from being used to circumvent the limitations of contract

law. This requirement is grounded in the distinction between a

misrepresentation of present fact, which may support a fraud claim, and

a promise of future performance, which generally does not. If every

unfulfilled promise could be recast as fraud, the carefully defined

boundaries of contract liability would be rendered meaningless.

Accordingly, Florida law requires that the alleged fraud be separate and

distinct from the breach of contractual obligations.

In this case, McDowell’s fraudulent inducement claim is based on by

Moore’s and Garcia’s alleged misrepresentations regarding the amount of

commissions which McDowell would receive if he transferred his

ownership interest in NVS. However, these statements, even when viewed

in the light most favorable to McDowell, do not constitute actionable

misrepresentations of existing material fact.

First, the alleged statements concerning anticipated commissions are,

by their nature, forward-looking. The statements reflect expectations or

projections regarding future performance, rather than representations of

present fact. Such statements are not actionable as fraud unless the

promisee proves the promisor had a present intent not to perform at the

time the statement was made. See Prieto, 97 So. 3d at 917–18.

The record here is devoid of evidence that Moore or Garcia made any

specific, definite representation regarding commissions with a present

intent not to honor such represenation. To the contrary, the evidence

demonstrates that the parties were engaged in ongoing negotiations and

had not reached an agreement on a commission structure. The absence

of a finalized agreement undercuts any claim that a specific false

representation was made.

Second, the alleged misrepresentations are not independent of the

agreement’s subject matter. The commission arrangement is addressed

directly in the Letter of Intent’s paragraph 13, which expressly

acknowledges that the terms remained to be negotiated. Again, where a

written agreement addresses the alleged misrepresentation’s subject

matter, Florida law precludes a fraud claim based on prior or

contemporaneous statements that are inconsistent with or subsumed

within the agreement. See B & G Aventura, 97 So. 3d at 309.

11

The reason is simple. The Letter of Intent does not merely fail to include

a specific commission term. Rather, the Letter of Intent affirmatively

states that no agreement has been reached, and the parties will attempt

to negotiate an agreement in the future. This express acknowledgment

negates any reasonable reliance on prior statements suggesting the parties

already had agreed upon a specific commission. A party cannot claim to

have been misled into believing that a term was fixed when the governing

document explicitly states that the term was not fixed.

Third, McDowell’s reliance on the alleged representations was not

justifiable as a matter of law. Justifiable reliance is an essential element

of fraudulent inducement. See Prieto, 97 So. 3d at 917. Where a written

agreement contradicts the alleged misrepresentation, reliance on the prior

statement is generally deemed unreasonable. See TRG Night Hawk Ltd. v.

Registry Dev. Corp., 17 So. 3d 782, 784 (Fla. 2d DCA 2009). The law

recognizes this principle to prevent parties from avoiding the consequences

of the contracts which they execute. Id. In this case, the Letter of Intent

clearly informed McDowell that the commission schedule had not been

finalized. Any reliance on alleged prior statements suggesting otherwise is

directly contradicted by the agreement’s express language. Under these

circumstances, no reasonable jury could find that McDowell justifiably

relied on such statements.

Fourth, McDowell’s fraudulent inducement claim suffers from the same

fundamental deficiency as his breach of contract claim, namely the

absence of definite terms regarding the commission. Without an agreed-

upon commission structure, it is impossible to determine whether any

representation was false or whether any damages resulted from reliance

on that representation. The lack of specificity that renders the contract

unenforceable likewise precludes the fraud claim.

In short, McDowell failed to present legally sufficient evidence of a false

statement of material fact, justifiable reliance, or damages arising from

any independent misrepresentation. The alleged statements concern

future expectations, are subsumed within the parties’ written agreement,

and are contradicted by the express language of that agreement. Such

allegations cannot support a claim for fraudulent inducement.

Accordingly, the trial court properly granted directed verdicts for Moore

and Garcia on the fraudulent inducement count.

b. NVS’s Cross-Appeal

12

Finally, we address NVS’s cross-appeal, which contends that the trial

court erred in denying NVS’s motion for directed verdict on McDowell’s

breach of contract claim. Like the other claims discussed herein, the

resolution of this issue turns on the same foundational question about

whether the Letter of Intent’s paragraph 13 constituted an enforceable

contract. However, the cross-appeal’s procedural posture differs in that

the jury returned a verdict against NVS, and the trial court declined to

disturb that verdict despite the underlying agreement’s legal deficiencies.

A trial court’s ruling on a motion for directed verdict is reviewed de

novo. See Morakis, 288 So. 3d at 688. A directed verdict should be granted

where the evidence, viewed in the light most favorable to the nonmoving

party, cannot support a legally sufficient verdict. See id. (quoting

Houghton, 680 So. 2d at 522). Critically, where the dispositive issue is one

of law rather than fact, such as the existence of an enforceable contract,

the matter is particularly appropriate for resolution by directed verdict.

As explained above, paragraph 13’s enforceability presents a pure

question of law because the material facts concerning the Letter of Intent’s

contents are undisputed. Paragraph 13 expressly acknowledges that the

parties had not agreed upon the commission arrangement’s essential

terms and would attempt to do so in the future. Florida law provides that

such provisions are unenforceable as agreements to agree. See John Alden

Life Ins. Co., 675 So. 2d at 189; Certified Motors, LLC, 369 So. 3d at 1258.

This conclusion’s logical consequence is dispositive of NVS’s liability. A

breach of contract claim cannot be sustained in the absence of a valid and

enforceable contract. See Deauville, 219 So. 3d at 953. Because

paragraph 13 fails to establish definite essential terms regarding the

commission, paragraph 13 cannot serve as the basis for imposing

contractual liability on NVS.

The jury’s finding that the Letter of Intent contained “all essential terms

to be a binding contract as to the commissions” does not alter this

conclusion. While questions of fact are generally reserved for the jury, the

determination of whether a contract is sufficiently definite to be

enforceable is a question of law for the court. See Triton, 308 So. 3d at

1006. A jury cannot, through its verdict, supply essential terms that the

parties themselves failed to establish. Just as a court cannot create a

contract, a jury is similarly precluded from creating a contract rather than

being limited to resolving whether a contract was created.

The record further demonstrates why enforcing paragraph 13 would

require precisely the sort of judicial speculation that Florida law forbids.

13

The parties, including NVS, never agreed on a commission percentage,

with evidence reflecting a range of possibilities. Nor did the parties agree

on whether commissions would apply to all qualifying sales, how

commissions would be calculated, or how long the obligation would

continue. These terms’ absence leaves no objective basis for determining

breach or calculating damages. Without a definite contractual framework,

any damages award necessarily rests on assumptions about what the

parties might have agreed, rather than what they actually agreed.

McDowell argues that NVS’s course of performance as a corporate

entity, including paying some commissions, demonstrates the existence of

an enforceable agreement. While course of performance may, in some

circumstances, aid in interpreting ambiguous contractual terms, course

of performance cannot supply essential terms where none exist. Florida

law distinguishes between ambiguity, which permits interpretation, and

indefiniteness, which precludes enforcement. See Certified Motors, 369

So. 3d at 1257. Here, the problem is not ambiguity in agreed terms, but

the absence of agreement altogether.

Similarly, McDowell’s argument that the commission provision should

be enforced because he fully performed by transferring his shares does not

cure the lack of definiteness. While partial performance may, in certain

contexts, support enforcement of otherwise uncertain agreements, partial

performance cannot create a contract where the parties never agreed upon

the essential terms. See Triton, 308 So. 3d at 1009. The doctrine of part

performance does not permit a court to impose contractual obligations

that the parties did not define.

The Letter of Intent’s provision that the failure to agree on a commission

schedule would not render the agreement unenforceable likewise does not

alter the analysis. As discussed above, that language is expressly limited

to enforceability “to the extent permitted by law.” Because the law does

not permit enforcement of agreements lacking essential terms, parties

cannot otherwise avoid its application by circumventing this requirement.

The undisputed evidence establishes that the parties failed to agree on

the commission arrangement’s essential terms. As a matter of law,

paragraph 13 is an unenforceable agreement to agree. Because no valid

contract existed, NVS was entitled to judgment as a matter of law on the

breach of contract claim like the other defendants in this case. The trial

court therefore erred in denying NVS’s motion for directed verdict.

III. Conclusion

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We affirm the trial court’s rulings granting directed verdicts for Moore

and Garcia, and reverse the denial of NVS’s motion for directed verdict for

the reasons discussed above. Accordingly, we remand with instructions

to enter judgment in NVS’s favor. We affirm on all other issues without

comment.

Affirmed in part, reversed in part, and remanded with instructions.

SHAW and LOTT, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

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