ROYAL NETHERLANDS REALTY, INC v. ROSS, 421 So.2d 642 (Fla.App. 3 Dist. 1982)

No. 81-1528.District Court of Appeal of Florida, Third District.
October 26, 1982. Rehearing Denied December 6, 1982.

Appeal from the Circuit Court, Dade County, Rhea Pincus Grossman, J.

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Manners, Amoon, Whatley Tucker and James W. Whatley, Miami, for appellants.

Holland Knight and Daniel A. Amat and Rachel Simonhoff, Floyd, Pearson, Stewart, Richman, Greer Weil and Robert C. Biegen, Lamchick, Glucksman Johnston and Steven G. Glucksman, Miami, for appellees.

Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.

SCHWARTZ, Judge.

The appellants are real estate brokers who were the plaintiffs below in an action to recover a commission from the appellees Ross and Oppenheimer. On cross-motions for summary judgment, the trial court entered judgment for the defendants. Since we conclude, directly to the contrary, that the plaintiffs were shown to have earned their commission as a matter of law, we reverse the judgment under review and order that one be entered in the brokers’ favor instead.

As inferentially conceded by the fact that both sides sought summary relief below, the operative facts are entirely undisputed. Ross and Oppenheimer each held a one-third interest — Milton C. Harry owned the other third — in an office building on Douglas Road in Miami. On September 19, 1979, they signed a 100-day exclusive listing agreement with the appellants “to find a purchaser[1] for said property on the following price and terms[2] or at any other price and terms acceptable to [Ross and Oppenheimer]” in return for a commission of six per cent of the sale price. Harry did not join in the execution of this contract. However, as the brokers were at all times aware, a Ross-Oppenheimer-Harry joint venture agreement contained a specific provision that, in the event of a disagreement between them as to whether to accept an offer to purchase the property, the one who did not wish to sell was required to purchase the interests of those who did on essentially the same terms.[3]

On November 5, 1979, the appellants complied with their end of the bargain contained in the listing agreement. On that date, Diplast, S.A., a Panamanian corporation which was produced by the brokers, and Ross and Oppenheimer, all executed a

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detailed purchase and sale agreement for the parcel in question.[4] The contract specifically recognized the option provisions of the joint venture by providing that Diplast could cancel the agreement and recover its $35,000 deposit if it could not secure 100% of the realty because of Harry’s refusal to agree. In accordance both with this provision and the joint venture agreement itself,[5] therefore, Oppenheimer and Ross called upon Harry to elect, as he was obliged to do, whether he would join in the sale to Diplast or purchase their interests himself. Almost simultaneously, the brokers informed the appellees that if the latter occurred, their brokerage commission would be limited to six per cent of two-thirds of the sale price, which represented the interest of Oppenheimer and Ross. On November 30, 1979, Harry informed his coventurers that he opted to buy their shares rather than sell to Diplast, which consequently withdrew from the agreement. Because of a continuing dispute over the terms of the option, however, Harry’s purchase of Ross and Oppenheimer’s two-thirds of the property was never consummated.[6] Apparently for this reason, they refused to pay the appellants’ brokerage commission, and this action resulted.

As has been indicated, we conclude that the appellants are entitled to the $35,400 brokerage fee for which they sued[7]
simply because there is no doubt that they fulfilled their contractual obligation to “find a purchaser,” Diplast (or, as is developed below, Harry), which was ready, willing and able to buy the property on terms which were acceptable to, and indeed accepted by Oppenheimer and Ross. Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (1945); Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929).

It is equally clear that the sellers’ contentions in opposition to this determination are without merit. First, since the parties specifically did not require that the commission would be earned only if a sale took place, it does not matter that Ross and Oppenheimer’s interests were not in fact transferred either to Diplast or Harry. Walker v. Chancey, 96 Fla. 82, 117 So. 705
(1928); Knowles v. Henderson, supra; Schumacher v. Wellman, 415 So.2d 120 (Fla. 4th DCA 1982); 7 Fla.Jur.2d Brokers §§ 86-87, 90 (1978).

Second, it is similarly inconsequential that Ross and Oppenheimer owned only two-thirds of the land the appellants were purportedly hired to sell. It is true that the general rule, as established in Keyes Co. v. Moscarella, 223 So.2d 83 (Fla.3d DCA 1969),

that a person giving an exclusive listing agreement to a broker is bound even though the property is not owned by him at the time of the exclusive listing agreement [is] * * * subject to an exception where the broker had knowledge of his employer’s inability to deliver good title because of a refusal of the co-owner to join in the employment.

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Bryan v. Justice, 247 So.2d 340, 341 (Fla.3d DCA 1971) Chastain v. Carroll, 307 So.2d 491 (Fla.2d DCA 1975); see also Hensley Ins. Co. v. Echols, 159 Fla. 324, 31 So.2d 625 (1947). Although the brokers were clearly aware of Harry’s outstanding interest, we nevertheless think that this “exception” may not be applied to the unique facts of this case. In cases like Bryan
and Echols, the broker either had no reason to believe that the other co-owners would join in the conveyance or affirmatively knew to the contrary; thus, there was, at the least, no assurance that his employer’s interests would actually be purchased. In the instant situation, however, because of the option provision of the appellees’ joint venture arrangement, the plaintiffs’ successful efforts in finding a purchaser meant, if the contract were followed, that Ross and Oppenheimer’s two-thirds of the realty would necessarily be subject to sale on satisfactory terms — either to the buyer, if Harry agreed, or to Harry himself, if, as in the event, he did not. Thus, the brokers’ employment to find a purchaser for the entire parcel was essentially to find one — either that third party or Harry — for Ross and Oppenheimer’s shares. Under this analysis of the transaction, the owners in fact owned all the property, their two-thirds, which was really the subject of the listing agreement. In actuality, therefore, neither the general rule to which we have referred, nor, all the more obviously, its exception, is implicated in the legal situation before us. It follows that there is no ground[8] for denying the brokers the fee which Oppenheimer and Ross agreed to pay and which the plaintiffs — by producing Diplast and thus, alternatively and simultaneously, Harry — clearly earned.

For these reasons, we reverse the judgment under review with directions to enter judgment for the appellants against Oppenheimer and Ross[9] for the $35,400 commission, interest, costs, and, as provided by the purchase and sale agreement,[10]
attorney’s fees for services rendered in the trial court.[11]

Reversed and remanded with directions.