McIver v. St. Joe Corporation, 1D01-2358.

• Decision Date: 13 September 2002
• Docket Number: No. 1D01-2358.,1D01-2358.
• Citation: 828 So.2d 394
• Parties: H. Bruce McIVER, Appellant, v. ST. JOE CORPORATION, formerly known as St. Joe Paper Company, Appellee.
• Court: Florida District Court of Appeals

828 So.2d 394

H. Bruce McIVER, Appellant, v. ST. JOE CORPORATION, formerly known as St. Joe Paper Company, Appellee.

No. 1D01-2358.

District Court of Appeal of Florida, First District.

September 13, 2002.

R. Stuart Huff of Law Office of R. Stuart Huff, Coral Gables; Ben H. Wilkinson of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee; and Adam Lawrence of Lawrence & Daniels, Miami, for Appellant.

Kenneth G. Oertel and C. Anthony Cleveland of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for Appellee.

KAHN, J.

Appellant, H. Bruce McIver (McIver), challenges a final summary judgment in favor of appellee, St. Joe Paper Company (St.Joe). McIver is a licensed Florida real estate broker who sued St. Joe in 1996, alleging breach of contract, after St. Joe refused to pay him a commission in connection with the conveyance of property known as Topsail Hill (Topsail). In December 1995, St. Joe agreed to a Consent Final Judgment with the State, following the dismissal of a condemnation proceeding instituted by the State. By the terms of the Consent Final Judgment, the State, among other things, agreed to pay St. Joe $84 million for the Topsail property. Because we find that the circuit court erred in granting summary judgment on McIver's express contract claim, we reverse and remand that claim for further proceedings. We affirm the remaining issues on appeal.

In the order on appeal, the circuit judge found the following facts as undisputed:

On or before December 17, 1990, the Plaintiff [McIver] orally contracted with the Defendant [St. Joe] to provide consulting services and to act as real estate agent and broker for the sale of approximately 600 acres, for which services the Plaintiff was to be paid 2% of the sale price. The primary potential purchaser was the State of Florida.

The Plaintiff worked diligently on behalf of the Defendant, managing to get the property on a state list [Conservation and Recreation Lands (CARL) Trust Fund] that was a prerequisite for it being considered for purchase, and engaging in extensive negotiations with the State on behalf of the Defendant. A sales contract, however, was never entered into between the Defendant and the State, or any other purchaser, nor did the Plaintiff bring to the Defendant an offer from a purchaser able and willing to buy the property at the price Defendant indicated was acceptable.

Some time in June or July of 1994, the State's representative, a Mr. Ivester, proposed a "friendly condemnation", i.e., if the Plaintiff agreed to it, the State would institute eminent domain proceedings on the property. The thinking of Plaintiff and Defendant was that in such a proceeding, the State would most likely have to pay more money for the property than they were offering because the appraisals would be based upon the highest and best use of the property. The Defendant directed the Plaintiff to tell the state to go ahead with the condemnation.

The eminent domain proceedings were commenced in September of 1994. Although the Defendant welcomed the condemnation proceedings, formally, through its pleadings, it objected and contested the issue of public purpose for the taking. The trial court granted the Defendant's Motion to Dismiss in December of 1995. Shortly thereafter, while a motion for rehearing was pending, the State and the Defendant entered into a stipulation, resulting in the entry of a consent final judgment which provided, in part, for compensation to the Defendant for its property in the amount of $84,000,000, exclusive of attorney's fees and costs. It is based upon this figure, plus the value of certain non monetary benefits, that the Plaintiff claims a 2% commission or fee.

Based on these facts, the court determined that McIver "can not recover from the Defendant on any theory advanced." The court also made the following findings:

The most that can be said ... is that the Plaintiff was the procuring cause of the property being acquired by condemnation. Since the Plaintiff can point to no evidence in the record to show that the contract between the parties provided for a commission in the event of acquisition by condemnation, the Plaintiff is not entitled to his fee and there is thus no breach of contract.

* * *

Here the parties specifically had not agreed upon the purchase price. And, a willing defendant in a condemnation proceeding, is not the same as a willing seller with respect to determining if there has been a sale.... For better or for worse, once the proceedings were initiated against the Defendant's property, it had no authority to withdraw from negotiations, or to refuse to sell the property to the State. True, the Defendant had successfully obtained an order of dismissal, but a motion for rehearing was pending, and an appeal was apparently contemplated, certainly possible. If the appeal time had run and the parties continued negotiations that resulted in a sale, the Plaintiff might have an argument. But that is not what happened.

The court entered summary judgment in favor of St. Joe.

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.... Thus, our standard of review is de novo." Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000). We find that a genuine issue of material fact exists as to whether the State and St. Joe arrived at a "sales contract," which would entitle McIver to a commission pursuant to his express contract with St. Joe, thereby precluding summary judgment on this claim.

McIver asserts that St. Joe's conveyance of Topsail to the State satisfies the criteria in Dauer v. Pichowski, 413 So.2d 62 (Fla. 2d DCA 1982), for a "sale," and thus a jury could find that the State acquired Topsail by a voluntary "sale" rather than by involuntary condemnation and McIver would be entitled to a commission pursuant to his express agreement with St. Joe. St. Joe agrees that Dauer controls, but maintains that Dauer established a bright-line test applicable to condemnation cases.

In Dauer, the Second District stated, "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." 413 So.2d at 63. The court further explained that "[e]ven 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." Id. at 63-64. The court cited several cases in support of its recitation, including Wilson v. Frederick R. Ross Investment Co., 116 Colo. 249, 180 P.2d 226 (1947), and Shaw v. Avenue D Stores, Inc., 115 N.Y.S.2d 194 (Sup.Ct.1952). See Dauer, 413 So.2d at 63-64. The court summarized the law regarding why condemnation did not constitute a "sale" for purposes of a broker's commission agreement:

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 [1] agrees on the property to be sold, [2] concurs as to the time at which he is to give up possession, and [3] has the power to negotiate a satisfactory price. Obviously, condemnation meets none of these tests.

Id. at 64.

The circuit court adopted St. Joe's view of Dauer as setting forth a bright-line rule that once the State has initiated a condemnation action, any conveyance that occurs while that action is pending does not constitute a sale for purposes of a broker's commission, unless the brokerage agreement provides for such a contingency. We do not read Dauer so strictly. Rather, the three "tests," or factors, set forth in Dauer should be examined in light of the facts in each case.

In Dauer, the circuit court had awarded the brokers, who were intervenors in a condemnation suit, a ten percent commission on the final value of the property, to be established in the condemnation proceeding. See id. at 63. The ...