FISHER v. KEYES COMPANY, 271 So.2d 787 (Fla.App. 3 Dist. 1973)

IVAN B. FISHER, APPELLANT, v. THE KEYES COMPANY, A FLORIDA CORPORATION, APPELLEE.

No. 72-1113.District Court of Appeal of Florida, Third District.
January 8, 1973.

Appeal from the Circuit Court, Dade County, Thomas Edison Lee, J.

Page 788

Katz Salmon, Miami, for appellant.

Blackwell, Walker Gray and Mark Hicks, Hilery F. Silverman and David R. Weissman, Miami, for appellee.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

Plaintiff-appellant, Ivan B. Fisher, seeks review of the lower court’s order denying his motion for summary judgment in an action involving the purchase of a warehouse.

In an attempt to purchase a warehouse located in Hialeah, Florida, plaintiff-appellant, Ivan B. Fisher, made an offer to the owners and delivered a deposit for the proposed purchase to the real estate broker handling the sale, The Keyes Company. Plaintiff alleges that he withdrew his offer before it was accepted and demanded that his deposit be returned by The Keyes Company. The trial court entered a summary judgment awarding a broker’s commission to The Keyes Company against Fisher and the sellers. The sellers did not appeal the summary judgment against them but this order was appealed by Fisher to this court which reversed the lower court on the basis that no contract for the sale was executed which could produce liability on the prospective purchaser for a broker’s commission. Once back on remand to the circuit court, Fisher, in a further attempt to retain his deposit, moved the court for a summary judgment based upon the prior decision of the District Court of Appeal finding that no contract for sale was executed. The motion for summary judgment was denied by the circuit court and this appeal ensued.

To be consistent with this court’s decision in its previous opinion, see Fisher v. Keyes Company, Fla.App. 1972, 262 So.2d 705, we hold that it was error to deny plaintiff’s motion for summary judgment. Consequently, the court’s order denying plaintiff’s motion for summary judgment is reversed, and the court below is directed to enter an order requiring the deposit to be returned to the plaintiff.

Reversed and remanded.