Easton-Babcock & Associates, Inc. v. Fernandez

• Decision Date: 18 February 1998
• Docket Number: No. 97-902,EASTON-BABCOCK,97-902
• Citation: 706 So.2d 916
• Parties: 23 Fla. L. Weekly D512 & ASSOCIATES, INC., Appellant, v. Manuel FERNANDEZ, Appellee.
• Court: Florida District Court of Appeals

Page 916

706 So.2d 916

23 Fla. L. Weekly D512

EASTON-BABCOCK & ASSOCIATES, INC., Appellant, v. Manuel FERNANDEZ, Appellee.

No. 97-902.

District Court of Appeal of Florida,

Third District.

Feb. 18, 1998.

Rehearing Denied April 1, 1998.

Silver & Garvett, P.A. and Tim D. Henkel, Coral Gables, for appellant.

Arnaldo Velez, Miami, for appellee.

Before JORGENSON, LEVY and GREEN, JJ.

GREEN, Judge.

Appellant, Easton-Babcock & Associates, Inc. ("Easton-Babcock") is a commercial real estate brokerage firm which brought suit below against appellee, Manuel Fernandez, for an unpaid real estate commission fee. The case proceeded to trial by a jury which ultimately rendered its verdict in favor of Easton-Babcock. Fernandez's post-trial motion for judgment notwithstanding the verdict and/or renewed motion for directed verdict was granted by order of the lower court and final judgment was entered in favor of Fernandez. This appeal was then taken and for the ensuing reasons, we reverse.

We begin by acknowledging that the evidence and reasonable inferences therefrom adduced at the trial below must be viewed in a light most favorable to the non-moving party. See Woods v. Winn Dixie, 621 So.2d 710, 711 (Fla. 3d DCA 1993). Further, all conflicts in the evidence must be resolved in favor of Easton-Babcock as the nonmoving party. When viewed in this light, the evidence reveals that Easton-Babcock is a commercial real estate brokerage firm which renders its services primarily in the commercial warehouse district located near the Miami International Airport. Fernandez is a real estate broker and owner of a number of warehouses in the airport district, two of which were the subject matter of this litigation. One of the warehouses, Building One, is a multi-bay warehouse which can accommodate up to seven tenants. The other, Building Two, is a warehouse which accommodates only two tenants.

From late 1989 until 1992, Easton-Babcock procured most of the tenants in Buildings One and Two for Fernandez. For its services, Easton-Babcock timely received a six percent brokerage commission from Fernandez with one exception. In one instance, Easton-Babcock was forced to initiate a prior lawsuit against Fernandez to recoup an unpaid commission. That suit was settled and Fernandez was permitted to pay the unpaid commission over a period of time. ¹

Sometime in the fall of 1992, Fernandez discussed the sale of Building One with an Easton-Babcock agent. Fernandez agreed to pay a six percent commission if Easton-Babcock procured a ready, willing, and able buyer for Building One. Easton Babcock then placed its listing sign on Building One. Thereafter, Jorge Noriega, a Chilean businessman, spotted Easton-Babcock's sign while touring the airport district in search of warehouses to purchase. Noriega telephoned Easton-Babcock and they subsequently met with Fernandez. After various offers and counteroffers, Noriega and Fernandez reached an agreement in principle on the material terms for Noriega's purchase of Building One. Noriega then instructed Easton-Babcock to memorialize the agreed upon terms in writing and to present the same to Fernandez for his signature. Easton-Babcock submitted a confirmation letter dated October 28, 1992, which outlined the agreed upon terms, to Fernandez for his signature.

Sometime after receiving this confirmation letter, Fernandez informed Noriega and Easton-Babcock, for the first time, that he could not go through with the sale of Building One because of a pending bank foreclosure action on the building. During the negotiations, which preceded the October 28 confirmation letter, Fernandez had never disclosed the existence of any pending foreclosure action which would impair his ability to sell Building One. What Easton-Babcock did not know at the time, however, and what it subsequently learned, was that the foreclosure action had been resolved and voluntarily dismissed on October 12, 1992, sixteen days prior to the October 28 confirmation letter.

When Fernandez claimed an inability to close on the deal with Noriega because of the foreclosure matter, Easton-Babcock took him at his word and did not seek its commission for procuring a ready, willing, and able purchaser of Building One. According to their testimony, Easton-Babcock's agents simply decided to "call it a day" on Building One. Easton-Babcock continued to seek out property for Noriega and ultimately persuaded Noriega to purchase Building Two from Fernandez in February 1993. Fernandez paid Easton-Babcock a commission for this sale, although it was lower than the customary six percent because Fernandez was having cash flow problems at that time.

After his purchase of Building Two, Noriega expressed a continuing interest in purchasing other warehouses. Accordingly, Easton-Babcock showed him other prospects. Sometime during late summer or early fall of 1993, Easton-Babcock attempted to reopen negotiations for Noriega's purchase of Building One from Fernandez. Easton-Babcock thereupon learned that on October 8, 1993, Fernandez and Noriega had already executed a contract for the sale and purchase of Building One. Noriega was the only prospective purchaser with whom Fernandez had negotiated for the sale of Building One. Moreover, Fernandez had drafted the sale contract which provided that no brokerage commission was owing and due. The material terms of this sales contract were identical to the terms previously negotiated by Easton-Babcock in October 1992. Noriega and Fernandez closed their deal on January 13, 1994. Easton-Babcock then submitted its written demand to Fernandez for payment of its real estate commission on Building One. When Fernandez declined to pay the same, this suit was filed.

The case proceeded to trial by jury. After Easton-Babcock rested its case in chief, Fernandez moved for directed verdict. The motion was denied and the case was ultimately given to the jury. The jury was instructed, among other things, to decide whether a sale of Building One had taken place, and if so, whether Easton-Babcock was the procuring cause of the sale. ² The jury returned its verdict in favor of Easton-Babcock and awarded compensatory damages in the sum of $46,500.00, which represented a six percent commission from the sale of Building One.

Fernandez filed post-trial motions for judgment notwithstanding the verdict and/or renewed motion for directed verdict. Citing primarily to Richland Grove & Cattle Co., Inc. v. Easterling, 526 So.2d 685 (Fla.1988), Fernandez argued that as a matter of law, Easton-Babcock could not be deemed the procuring cause of the sale where, for approximately eleven and one half months (i.e., October 1992 until September 1992), Easton-Babcock had not been involved in continuous negotiations for the sale of Building One and thus had effectively abandoned its listing. The trial court agreed, granted the motion, and entered final judgment for Fernandez. On this appeal, Easton-Babcock urges that the lower court erred where there was evidence from which the jury could conclude that it produced a purchaser on terms acceptable to the seller in 1992; and that the seller affirmatively misrepresented his ability to sell the property at that time in order to exclude Easton-Babcock from the negotiations. Alternatively, Easton-Babcock's urges that its nonparticipation in the negotiations for eleven and one half months was not an unreasonable length of time so as to constitute an...