Cushman & Wakefield of Florida, Inc. v. Williams

• Decision Date: 08 November 1989
• Docket Number: No. 89-00646,89-00646
• Citation: 551 So.2d 1251,14 Fla. L. Weekly 2619
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 2619 CUSHMAN & WAKEFIELD OF FLORIDA, INC., Appellant, v. Marnie Ruth WILLIAMS (f/k/a Marnie Ruth Troutman), Louis A. Dombrova, Appellees.

Page 1251

551 So.2d 1251

14 Fla. L. Weekly 2619

CUSHMAN & WAKEFIELD OF FLORIDA, INC., Appellant, v.Marnie Ruth WILLIAMS (f/k/a Marnie Ruth Troutman), Louis A. Dombrova, Appellees.

No. 89-00646.

District Court of Appeal of Florida Second District.

Nov. 8, 1989.

William E. Sizemore and Ronald W. Fraley of Thompson, Sizemore & Gonzalez, P.A., Tampa, for appellant.

Richard J. McKay of Hill, Ward & Henderson, P.A., Tampa, for appellees.

PARKER, Judge.

Cushman & Wakefield of Florida, Inc., who was the defendant in the trial court, appeals a final judgment entered against it, which awarded commissions to Marnie Ruth Williams and Louis A. Dombrova.We reverse.

Appellees Williams and Dombrova filed a complaint against Cushman & Wakefield for damages in connection with unpaid commissions.Both are former employees of Cushman & Wakefield and were employed as real estate brokers/salespersons.Both signed employment contracts with Cushman & Wakefield.The employment contract, among setting forth other terms and conditions of employment, established the circumstances under which salespersons were entitled to commissions and fees on transactions in which they rendered services.Paragraph nine of the employment contract set forth conditions under which former employees could share in commissions collected by Cushman & Wakefield subsequent to the termination of the employee's employment.It states in pertinent part:

(b) Employee shall not be entitled to share in any commissions or fees collected by C & W subsequent to the termination of Employee's employment, except under the following conditions:

(i) If any transaction has been finally consummated prior to the termination of Employee's employment but the commission or fee is not collected or due until after the termination:

....

(iii)If a duly authorized written offer to lease specifying the essential terms of a lease agreement, including the rental rate, size and location of premises, length

of lease term, and concessions and special conditions required, has been made to a specifically identified landlord or tenant prior to the termination of Employee's employment, and thereafter within a period of three months, a lease substantially in accordance with and pursuant to such offer is consummated.

For the purpose of this Paragraph 9, ... a lease shall not be deemed consummated unless and until an agreement of lease has been fully and unconditionally executed and exchanged by and between the landlord and tenant.Employee's share of any commissions and fees collected by C & W subsequent to the termination of Employee's employment shall be subject to reduction by an amount to be determined by C & W if subsequent work or negotiations are necessary to conclude the transaction and C & W assigns other of its employees to handle same, to any commission or fee sharing arrangement made by Employee with any other C & W employees, and to all the other applicable terms and conditions of this Agreement.Except as specifically provided in this subparagraph (b), Employee shall not be entitled to any commissions, fees or other compensation whatsoever from C & W subsequent to the termination of Employee's employment....

In 1982, appellees, as sales representatives of Cushman & Wakefield, negotiated a lease agreement between Golden Eagle Service Corporation, the lessee, and Cypress Center I Joint Venture, the lessor.The Wilson Management Company, a property management firm, represented the lessor in this transaction.The lease agreement was for a five-year term ending on September 30, 1987.

In addition to the lease agreement, Williams and Dombrova negotiated on behalf of Cushman & Wakefield a brokerage commission agreement which set forth the rates and circumstances under which Cushman & Wakefield would be entitled to the payment of a commission from the Wilson Company.The commission agreement provided for the payment of a four percent commission to Cushman & Wakefield based upon the aggregate rental amount for the entire term of the lease.In addition, the commission agreement provided for the payment of a possible future commission to Cushman & Wakefield if one of two possible scenarios occurred.First, Cushman & Wakefield was guaranteed a two percent commission on rentals generated by the tenant exercising an option or right contained in the original lease.Second, Cushman & Wakefield could be entitled to a commission if the tenant renewed or extended the lease or leased additional space and Cushman & Wakefield actively participated in this separate transaction.These two alternatives for possible future commissions read as follows:

If the term of the lease is renewed or extended, or if the tenant leases any other additional space from the landlord, pursuant to an option or right contained in the original lease, in the original building, landlord shall pay additional commissions to C & W equal to two percent (2%) of the aggregate rental ... payable over the renewal or extension term or for such additional or other space.

C & W shall not be entitled to commissions on renewals, extensions or leases of additional space that are not pursuant to options or rights contained in the original lease unless C & W actively participates in the negotiation of such a renewal extension or lease of additional space.

Pursuant to the terms of the commission agreement, the Wilson Company paid Cushman & Wakefield a four percent commission based upon the total rental value over the lease term.This sum was thereafter divided with appellees under the terms of the standard schedule of compensation which was incorporated into the employment contracts.

Between March 1983 and December 1984, both appellees voluntarily resigned from employment with Cushman & Wakefield.Thereafter, neither appellee performed any services on behalf of Cushman & Wakefield in regard to the lease agreement.

In 1985, the tenant, Golden Eagle Service Corporation, assigned and transferred its rights under the lease agreement to its parent corporation, Investment Service for America Corporation.Thereafter, Investment Service continued to occupy the Cypress Center I premises and pay rent pursuant to the lease agreement terms as negotiated...