Dauer v. Pichowski

• Decision Date: 19 March 1982
• Docket Number: No. 81-83,81-83
• Citation: 413 So.2d 62
• Parties: Maxwell and Reva DAUER, as trustees, Appellants, v. James J. PICHOWSKI, Sr., Ron Martino, and Sam C. Martino, Appellees/Intervenors.
• Court: Florida District Court of Appeals

Page 62

413 So.2d 62

Maxwell and Reva DAUER, as trustees, Appellants, v. James J. PICHOWSKI, Sr., Ron Martino, and Sam C. Martino, Appellees/Intervenors.

No. 81-83.

District Court of Appeal of Florida,

Second District.

March 19, 1982.

Rehearing Denied April 26, 1982.

S. W. Moore of Brigham, Reynolds, Byrne, Moore, Muir & Gaylord, Sarasota, for appellants.

Anthony T. Martino of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellees/intervenors.

GRIMES, Judge.

This is an appeal from the award of a brokerage commission.

In 1954 and 1955 James Pichowski, a resident of Miami, and others purchased a large tract of property on the Hillsborough River adjacent to Fletcher Avenue. The following year, all but 114 acres of this property was sold to Ben Cosor and others. In 1971, the Cosor group resold their property, consisting of approximately 660 acres, to a group of investors including the present landowner, Dr. Maxwell Dauer. Mr. Pichowski obtained a commission for his services as the broker handling the transaction for the seller. In 1975, Dr. and Mrs. Dauer acquired controlling interest in the property from their associates. On December 5, 1975, Pichowski asked brokers Ron Martino and Sam Martino of Tampa to assist him in the sale of his 114 acres. Realizing that Hillsborough County was interested in creating a regional park, Ron Martino showed the Pichowski property to Edward Radice, the county director of parks and recreation, in early 1976. Recognizing that the county might want more than 114 acres for its park, Martino and Radice also looked at the adjoining Dauer parcel.

On May 30, 1977, Mr. Pichowski telephoned Dr. Dauer asking for the exclusive right to sell his property. Dauer declined to give an exclusive listing but indicated that the property was and had been on an open listing since 1971. Pichowski said that Dauer told him, "Just find a buyer and don't worry about your 10% commission," but Dr. Dauer denied that aspect of the conversation. The only selling price for the property ever publicly quoted by Dauer was $10,000 an acre. On June 2, 1977, Pichowski wrote a letter to Dauer purporting to register Hillsborough County as a potential purchaser of all or part of the 660 acres and attached a copy of a letter dated June 1, 1977, from Sam Martino to Pichowski which referred to the Dauer property and read as follows:

Dear Mr. Pichowski:

This is to inform you that we have, this date, brought to the attention of the Hillsborough County Park Division and furnished data, maps, etc. to them, concerning their possible purchase of the above property. We quoted them $6,500.00 per acre as per your instructions, which includes a 10% commission payable to you and the undersigned on a 50/50 basis in the event said land is purchased, negotiated or acquired by 'eminent domain' proceedings by the Hillsborough County Park Division.

On February 21, 1978, June 26, 1978, and July 6, 1978, Mr. Pichowski wrote Dr. Dauer advising him of the continuing efforts of the Martinos to consummate a sale of the property to Hillsborough County. On August 22, 1978, Hillsborough County purchased Pichowski's 114 acres, and the Martinos received a real estate commission for their services in bringing about the sale. On October 16, 1978, Dauer's administrative assistant wrote Pichowski advising him that he had no authority to negotiate the sale of the Dauer property and that any of his activities pertaining to that property were being done at his own risk. Thereafter, Hillsborough County land acquisition agents negotiated directly with Dauer for the purchase of a portion of his property to round out the county park. Hillsborough County offered to buy 117 acres for $4,200 per acre, but Dauer declined the offer. Hillsborough County then filed a condemnation suit to acquire the 117 acres as part of its park. Pichowski and the Martinos intervened in the action claiming their right to a 10% commission. Following a nonjury trial on the merits of the intervenors' claim, the court entered an order finding that they were entitled to a 10% real estate commission on the final value of the parcel established in the condemnation proceedings. ¹

It is well settled that a condemnation proceeding does not constitute a sale for purposes of the right to be paid a real estate commission. Preston v. Carnation Co., 196 Cal.App.2d 43, 16 Cal.Rptr. 240 (1961); Haigler v. Ingle, 119 Colo. 145, 200 P.2d 913 (1948); Wilson v. Frederick R. Ross Investment Co., 116 Colo. 249, 180 P.2d 226 (1947); Schwenn v. S. Goldberg & Co., 88 N.J.Super. 113, 210 A.2d 808 (1965), aff'd 91 N.J.Super. 346, 220 A.2d 421 (1966); Shaw v. Avenue D Stores, Inc., 115 N.Y.S.2d 194 (Sup.Ct.1952); Emerson C. Custis & Co. v. Tradesman's National Bank & Trust Co., 155 Pa.Super. 282, 38 A.2d 409 (1944). Even where he is the procuring cause of property being acquired by condemnation, a broker can only recover a commission if there is a specific provision in the brokerage contract to this effect. Wilson v. Frederick R. Ross Investment Co.; Shaw v. Avenue D Stores, Inc. The recurring theme of these cases is that the property owner should not be required to pay a real estate commission under the normal brokerage contract when his property is condemned because in such circumstances he is not a willing seller. In Wilson the court concluded that a transaction may be considered a sale for purposes of a broker's commission only when the owner agrees on the property to be sold, concurs as to the time at which he is to give up possession, and has the power to negotiate a satisfactory price. Obviously, condemnation meets none of these tests.

The only Florida decision to discuss the issue is Keyes Co. v. Florida Nursing Corp., 340 So.2d 1254 (Fla. 3d DCA 1976). In that case, Dade County sought the assistance of a broker in finding property to be used as a rehabilitative center for chronic alcoholics. The broker found the defendant's property and secured from the defendant an option agreement under which Dade County could purchase the property. At the same time, the broker obtained a written brokerage contract from the defendant. Dade County accepted the option agreement, but the defendant refused to go forward with the sale because of a change in management. Dade County then began eminent domain proceedings. During the progress of these proceedings, the parties agreed to a price and the conditions of a judgment of condemnation. The broker sued for a commission but was unsuccessful in the trial court. On appeal, the court acknowledged that an eminent domain proceeding is not a sale and cited several of the cases referred to above as authority for the proposition. However, the court ruled that the brokerage contract was susceptible to being construed as a promise to pay a commission for the finding of a purchaser and that if under those circumstances the defendant had prevented the broker from obtaining a commission by wrongfully refusing to proceed with the sale, the broker would be entitled to recover his commission. The court...