Atkins v. Keller
| Decision Date | 23 June 1981 |
| Docket Number | No. 80-2379,80-2379 |
| Citation | 400 So.2d 168 |
| Parties | Allen L. ATKINS, Appellant, v. Leonard KELLER, d/b/a Leonard Keller Realty, and Keller Realty Corporation, aFlorida Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Cohen & Manheimer and Peter Manheimer, Miami Beach, for appellant.
Shorenstein & Lewis and Marvin W. Lewis, Miami Beach, for appellees.
Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
The defendant, Allen Atkins, appeals from a final judgment entered in favor of Leonard Keller, d/b/a Leonard Keller Realty and Keller Realty Corp.
Pursuant to a brochure sent by Atkins (Seller) to Keller, a registered broker in the State of Florida (Broker), concerning certain property owned by the Seller, the two parties entered negotiations which resulted in a written contract of February, 1980, which the Seller rejected because of dissatisfaction with certain provisions relating to partial releases of mortgages and because of the failure to provide for a personal guaranty or bank letter of credit which would provide additional security for the proposed purchase money mortgage. The Broker acknowledges that the demand of the Seller for a personal guaranty or bank letter of credit created a problem, prompting a conference telephone call among the Seller, the Broker and the attorney for the prospective purchaser. At this time, the Seller withdrew this demand and the prospective purchaser's attorney thereupon prepared a contract including certain modifications requested by the Seller. At the Seller's request, the contract was forwarded to a Mr. Nixon at the Pan American Bank of Orlando (Nixon was the trustee for a land trust that included the real property). Thereafter, the Seller would not sign the contract, nor would he allow Nixon to do so. The Broker, having found a purchaser willing to fulfill the Seller's requirements for sale, demanded his $65,000.00 commission (as provided for in the contract) from the Seller, who refused to pay. A law suit by the Broker was then filed, resulting in a judgment in favor of the Broker for the principal amount of $65,000.00 plus costs ($546.41), which read in part as follows:
....
"THIS CAUSE came on to be heard before the Court, without a jury, and the Court having considered the matters set forth in the pleadings, the testimony elicited at the trial of this case, as well as the documentary evidence produced by the respective parties and having heard argument of counsel and being otherwise fully advised in the premises finds that based upon the credible evidence adduced in this cause:
(a) It is undisputed that the Plaintiffs are and at all times were licensed real estate brokers.
(b) The Defendant, by means of an oral open listing submitted certain real estate owned by the Defendant, title to which was held in the name of Pan American Bank of Orlando, to the Plaintiffs, as a broker.
(c) Pursuant to the terms of said oral listing and as subsequently acquiesced and approved by the Defendant, Plaintiffs procured a Purchaser to said property, who was ready, willing and able to consummate the purchase of said property, upon the terms agreed upon by the Defendant, as Seller, and Plaintiffs' prospective Purchaser.
(d) Said terms were embodied in a revised draft of the Contract for Sale of Real Estate prepared by the attorney for the prospective Purchaser, and said...
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