Arbogast v. Bryan, 79-303

• Decision Date: 04 February 1981
• Docket Number: No. 79-303,79-303
• Citation: 393 So.2d 606
• Parties: C. B. ARBOGAST, Jr., C. B. Arbogast Real Estate, Inc., and C. B. Arbogast, Jr., Patrick J. Ryan, Robert F. McRoberts, Jr., Eva Arbogast and Mary Ann Ryan, as trustees of the said corporation, Appellants, v. Gerald E. BRYAN, Appellee.
• Court: Florida District Court of Appeals

Page 606

393 So.2d 606

C. B. ARBOGAST, Jr., C. B. Arbogast Real Estate, Inc., and C. B. Arbogast, Jr., Patrick J. Ryan, Robert F. McRoberts, Jr., Eva Arbogast and Mary Ann Ryan, as trustees of the said corporation, Appellants, v. Gerald E. BRYAN, Appellee.

No. 79-303.

District Court of Appeal of Florida, Fourth District.

Feb. 4, 1981.

Rehearing Denied March 3, 1981.

Martha C. Warner, Warner, Fox & Seeley, Chartered, Stuart, for appellants.

J. Stockton Bryan, Stuart, for appellee.

MOORE, Judge.

The appellee, Bryan, successfully sued the appellants for recovery of portions of real estate commissions allegedly withheld from him. Appellants seek reversal of the final judgment entered in favor of the appellee after a non-jury trial. We find that the appellee waived his right to payment and we reverse.

Bryan was employed as a real estate salesman from 1969 to January, 1975 by the broker, C. B. Arbogast Real Estate, Inc. The broker corporation was dissolved in July, 1975, approximately six months after the appellee had terminated his employment, and suit was not commenced until December, 1975. In his suit, the appellee contended that the broker wrongfully withheld portions of several real estate commissions which were due him. All of the commissions involved large real estate transactions between four sets of buyers and sellers.

Bryan's arrangement with the broker was apparently an oral one in which they agreed that all commissions earned through the procuring efforts of Bryan would be divided equally. The broker's ordinary business expenses were to be paid from its share of the commissions. During Bryan's employment, the broker retained the services of Patrick J. Ryan, a market analyst and consultant, whose function was to provide advice on techniques of getting sellers and buyers together on large real estate transactions. Ryan was paid a fee of 1% of the gross sales price of all consummated transactions. This fee was deducted from the total commission and the remainder was then divided equally. The trial court held that the payments to Ryan were corporate business expenses which were not the responsibility of Bryan and he entered the final judgment for those amounts. This appeal followed.

We find it unnecessary to determine whether portions of Ryan's fees were wrongfully withheld from Bryan's commissions because we find that the trial court erred in failing to determine that Bryan had waived his right to payment. At the time of, or shortly after, the closing of each transaction, Bryan received his share of the commissions. Because some of the transactions involved deferred payments, some of Bryan's commissions were deferred until actual payment was made. Nevertheless, Bryan was aware that the fees paid to Ryan caused a reduction in his commissions and he voiced no objection for over six years.

The doctrine of waiver is aptly defined in 22 Fla.Jur.2d, Estoppel & Waiver, §§ 86-97 and 89, as follows:

§ 86 Waiver is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. It may be express or implied; and when a party waives a right under a contract he cannot, without the consent of his adversary, reclaim it....

Waiver is distinguishable from estoppel. Waiver operates to "estop" one from asserting that which he might otherwise have relied upon, but it is not a true estoppel. That kind of waiver which consists merely in renouncing some right, or in ratifying what one might repudiate is not estoppel, though it has been called such. Nevertheless, waiver, although it is not technically speaking an estoppel, may be affected by various acts and different courses of conduct which operate in the final analysis as an estoppel or at least a quasi-estoppel.

§ 87 A party may waive any rights to which he is legally entitled, whether guaranteed by the Constitution, conferred by statute, or secured by contract....

§ 89 The following are essential to a waiver: The existence at the time of the waiver of a right, privilege, advantage or benefit which may be waived; the actual or constructive knowledge thereof; and an intention to relinquish such right, privilege, advantage, or benefit.

Waiver may be express or implied. Although waiver does not arise from forbearance for a reasonable time, it may be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived....

(Footnotes omitted; emphasis added)

Applying the foregoing criteria to the instant case, it is readily apparent that Bryan waived strict compliance with what he contends was the contractual agreement between himself and the broker. ¹ The evidence indicates that he knew of the arrangement with...