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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