Belen School, Inc. v. Higgins, 83-1879

• Decision Date: 10 October 1984
• Docket Number: No. 83-1879,83-1879
• Citation: 462 So.2d 1151,10 Fla. L. Weekly 390
• Parties: 23 Ed. Law Rep. 422, 10 Fla. L. Weekly 390 BELEN SCHOOL, INC., d/b/a Belen Jesuit Intercultural Center, Appellant/Cross Appellee, v. Joseph J. HIGGINS, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 1151

462 So.2d 1151

23 Ed. Law Rep. 422, 10 Fla. L. Weekly 390

BELEN SCHOOL, INC., d/b/a Belen Jesuit Intercultural Center, Appellant/Cross Appellee, v. Joseph J. HIGGINS, Appellee/Cross Appellant.

No. 83-1879.

District Court of Appeal of Florida,

Fourth District.

Oct. 10, 1984.

Rehearing Denied Feb. 13, 1985.

R. Lawrence Bonner of Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., Miami, for appellant/cross appellee.

Bernard Berman of Bernard Berman, P.A., Fort Lauderdale, for appellee/cross appellant.

PER CURIAM.

We reverse and remand with direction to enter judgment in favor of appellant/cross appellee, rendering the cross appeal moot.

HERSEY, GLICKSTEIN and BARKETT, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

GLICKSTEIN, Judge.

We deny the motion for rehearing on the basis that nothing new was brought to this court's attention. We grant the request to explain our decision through opinion, however, in order that we may edify bench and bar.

In this case, appellant Belen School, Inc., (Belen) wanted to build a new school facility, for which purpose it required approximately $3,000,000. To this end, Belen had approached and dealt with several lending institutions. Dade Federal Savings & Loan Association had indicated a willingness to lend a portion of the funds, $1,000,000, if others could contribute the rest. At that time, Atlantic Federal Savings & Loan had offered $750,000, Flagler Federal Savings and Loan had offered $250,000, and First Federal Savings and Loan of Broward (later Glendale Federal) had acknowledged receipt of the loan package and promised to respond quickly. Belen, however, had not yet been able to obtain a mortgage contract nor final mortgage commitment at that point.

Belen then signed a contract with appellee Joseph Higgins, a mortgage broker, on February 27, 1979, under which it agreed to pay him 5% of the amount secured if he was able to perform under the contract. Appellee did some work toward obtaining mortgage commitments from various groups, and on March 26 did produce a letter from him giving four lenders who had "expressed a strong interest" in the financing. The four were the exact institutions previously mentioned and with which Belen had already been negotiating.

Mortgages were formally contracted for with this same group of four lenders, in the precise amounts already listed, with the addition of $500,000, supplied by Glendale Federal, on November 19, 1979. Higgins then sought his 5% commission, which Belen refused to pay. He then sued under the contract for the commission, and received a jury award of $125,000 (5% of $2,500,000). Belen had unsuccessfully sought a directed verdict, a judgment notwithstanding the verdict, and a new trial. It appealed the final judgment and denial of these motions.

We were faced with the question of whether the trial court erred in entering a judgment in accordance with the jury's verdict and in denying the motions for directed verdict, judgment notwithstanding the verdict, and new trial. We held that it did as a matter of law and ordered entry of a verdict for Belen.

This case had to be decided from an evaluation of whether appellee performed under the contract, there having been neither pleadings nor evidence addressed to quantum meruit or other basis for payment. Whether appellee performed depended on what constituted performance under the contract, and this dispute revolved around two parts of the contract, which are the preliminary clause:

We are herewith contracting for your services to assist us in obtaining a permanent mortgage in the amount of $3,000,000.00 for a period of twenty-five (25) years with interest terms not to exceed 10.25% for the above captioned property. In consideration of your services to obtain said mortgage, we agree to pay you the sum of 5 (five)% of the full amount of the mortgage desired, said sum due and payable to you as follows:

and clause 6:

(6) We agree that this letter contract will remain in full force and effect for a period of thirty (30) days from the date of acceptance, with any extensions beyond said date to be mutually agreed upon, and in the event any mortgage loan or commitment shall be obtained on the said property on or before said date, whether obtained by the undersigned or anyone, Joseph J. Higgins shall be entitled to a commission amounting to the percentage of the...