Bodon Industries, Inc. v. Brown, 93-2119

• Decision Date: 21 October 1994
• Docket Number: No. 93-2119,93-2119
• Parties: 19 Fla. L. Weekly D2248 BODON INDUSTRIES, INC., a Texas Corporation, Appellant/Cross-Appellee, v. John D. BROWN, Individually, et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 33

645 So.2d 33

19 Fla. L. Weekly D2248

BODON INDUSTRIES, INC., a Texas Corporation, Appellant/Cross-Appellee, v. John D. BROWN, Individually, et al., Appellees/Cross-Appellants.

No. 93-2119.

District Court of Appeal of Florida,

Fifth District.

Oct. 21, 1994.

Rehearing Denied Nov. 22, 1994.

PETERSON, Judge.

Bodon Industries, Inc. (buyer), appeals an award to Exceltech, Inc., formerly known as Williams Steel Industries, Inc. (seller), of one-half of a broker's commission paid by the seller to two real estate brokers who procured the sale of a concrete plant between the parties. We reverse.

S.W. Williams and John D. Brown were president and vice-president of the seller. In 1978, the seller purchased a parcel of real property located in Ocoee, Florida, upon which the seller subsequently operated a concrete plant. In 1983 Williams and Brown contacted D.S.J. Realty, Inc. (DSJ), to discuss the possibility of selling the property.

The buyer was an out-of-state corporation whose president was Donald R. Faust. Faust operated a number of concrete plants and was interested in acquiring a Florida plant. Thomas J. Deserable, a resident of Texas and an experienced operator of concrete plants, learned of the buyer's desire to acquire a Florida plant. He offered to assist in finding such a plant because he was interested in moving from his then-employer. He expected no compensation except reimbursement of travel expenses, although he was obviously interested in a job at an acquired plant. The buyer asked Deserable to begin a search.

Among other efforts, Deserable asked his sister-in-law, Regina Scott, a real estate broker and president of Sun World Realty, Inc. (Sun World), if she was aware of a suitable site. She, in turn, contacted DSJ, who informed her of the availability of the seller's plant and who agreed to share equally its broker's commission if a sale took place. Scott then showed the plant to Deserable. On January 10, 1984, Scott sent a letter to DSJ informing it that the plant had been shown and that information regarding the plant had been supplied to Deserable, Faust and another person evidently not related to the parties to this action. Williams acknowledges that he received a copy of the letter.

Williams signed a commission agreement, dated January 25, 1984, which provided for a $50,000 commission. The agreement identified the buyer as Robert Curtis and Associates (a nominee of the buyer) and provided that "this fee becomes a part of the contract between DSJ Realty Co. and Sun World Realty (50/50 split--)." However, negotiations between the seller and the buyer were not successful and the buyer purchased an unrelated parcel of property in Sarasota.

In August 1984 negotiations resumed between the seller and the buyer, initially without the knowledge of the brokers, and a sale was completed on September 7, 1984, for $1,000,000. The brokers suspected a pending sale no later than August 17, 1984, when Sun World's attorney directed a letter of inquiry to DSJ demanding its share of any commission earned by the latter. DSJ responded by indicating that it had contacted both Williams and Scott, and Williams had assured it that Williams would "live up to the Commission Agreement." On September 5, 1984, DSJ forwarded a letter and a copy of all the correspondence concerning the suspected sale to Williams. A copy of this letter entered into evidence contained a stamp of the seller bearing the date September 7, 1984.

When the brokers' efforts to collect a commission were ignored or refused, Sun World filed a multi-count complaint against the seller, the buyer, and Williams and Brown individually. DSJ later joined as a co-plaintiff. The complaint alleged a commission due from the seller on the January 10, 1984 agreement to pay a $50,000 commission, or in the alternative, a commission based upon quantum meruit because the brokers were the procuring cause of sale. Other counts alleged that the buyer tortiously interfered with the business relationship between the brokers and seller and that all the defendants had conspired to defraud the brokers of a commission. A jury found the seller liable on the quantum meruit count and awarded the brokers a $100,000 commission to be shared by the...