Fearick v. Smugglers Cove, Inc.

• Decision Date: 18 January 1980
• Docket Number: No. 79-113,79-113
• Citation: 379 So.2d 400
• Parties: Patrick J. FEARICK, Appellant, v. The SMUGGLERS COVE, INC., a Dissolved Florida Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 400

379 So.2d 400

Patrick J. FEARICK, Appellant, v. The SMUGGLERS COVE, INC., a Dissolved Florida Corporation, et al., Appellees.

No. 79-113.

District Court of Appeal of Florida, Second District.

Jan. 18, 1980.

H. Stephen Frank, Fort Myers, for appellant.

Robert P. Rosin of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellees.

C. Michael Jackson of Stewart, Stewart, Jackson & Keyes, Fort Myers, for appellees, Parsons, Wood and Shapiro.

Steven L. Studybaker, Cape Coral, for appellees, Outer Island Development of Florida, Inc., and Robert Hollopeter.

HOBSON, Judge.

Appellant, a licensed real estate broker, appeals the dismissal with prejudice of his fourth amended complaint. In five counts, he sought to recover a brokerage commission for services allegedly performed in connection with the sale of certain property owned by Smugglers Cove, Inc.

The factual allegations in appellant's complaint state that he and Bauer, the president of Smugglers Cove, orally entered into an exclusive listing agreement in August of 1973 for the sale of property owned by the corporation. The sale price was set at $925,000, with the purchaser to assume a $200,000 mortgage, and appellant was to receive a 6% Commission if he procured a ready, willing and able purchaser. Thereafter, appellant undertook certain steps to advertise and sell the property, including placing signs on the property.

Although the purchase price had twice been reduced, the property remained unsold as of early February, 1976, resulting in a further reduction to $750,000. Thereafter, appellant contacted Hollopeter, president of Outer Island Development of Florida, Inc., which was in the process of developing a tract of land adjacent to the property. Hollopeter was informed that appellant was the exclusive broker and of the terms and conditions of the sale. After appellant had had several meetings with Hollopeter and had informed Bauer that a potential purchaser had been located, Bauer contacted another broker and offered him $4,000 if he would arrange an introduction with Hollopeter and if a sale resulted. Thereafter, Hollopeter told appellant that he was no longer interested in purchasing the property.

On July 1, 1976, the shareholders of Smugglers Cove consented to dissolution of the corporation, pursuant to Section 607.254, Florida Statutes (1975), and executed articles of dissolution pursuant to Section 607.267. After the filing of the articles of dissolution, a quit-claim deed was executed on July 7, 1976, transferring the subject property to the shareholders of the corporation. The property was then sold to Outer Island for $650,000. Appellant alleges that he demanded payment of his commission, but received only $2,500 for his services.

Appellant filed a complaint against appellee in February, 1977; the fourth amended complaint was filed in September, 1978, and dismissed with prejudice in January, 1979. Count I of the complaint is an action against Smugglers Cove for the real estate commission; Count II is against Bauer individually for entering into an unauthorized contract on behalf of the corporation; Count III is a claim against Bauer and Erb as trustees for payment of corporate debts in their capacity as directors; Count IV is an action against the shareholders of Smugglers Cove for the real estate commission; and Count V is an action against Hollopeter for tortious interference with the contract for the real estate brokerage commission.

We agree with the trial judge's dismissal of Counts II, and IV; however, we find that there was error in his dismissal of Counts I, III and V.

The question presented is essentially a question of pleading, I. e., whether the appellant's fourth amended complaint states causes of action against the defendants; "whether, in other words, if the allegations of the amended complaint were proved, the defendant(s) would be liable to the (plaintiff) for damages." Wiley v. Dow, 107 So.2d 166, 168 (Fla. 1st DCA 1958). See also Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). In testing a complaint on a motion to dismiss, all facts properly pleaded are deemed admitted. On an appeal from a final judgment dismissing the complaint, it is irrelevant whether or not the appellant would have been able to present sufficient evidence to prevail on the merits. Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Connelly v. Merritt, 273 So.2d 7 (Fla. 1st DCA 1973).

Count I of appellant's fourth amended complaint alleges facts which, if proven, will entitle him to his brokerage commission from Smugglers Cove, Inc. The parties had orally entered into an exclusive listing (agency to sell) agreement. ¹ Under such an agreement, the owner retains the right to sell the property Independently of the broker. However, if the sale is to a ready, willing and able purchaser Procured by the broker, the owner is liable for the broker's commission. Nicholas v. Bursley, 119 So.2d 722 (Fla. 2d DCA 1960).

Whether a broker is a procuring cause is a question of fact to be determined from the surrounding circumstances. Wilkins v. Tilton Real Estate & Ins., Inc., 257 So.2d 573 (Fla. 4th DCA 1971); National Airlines, Inc. v. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964). Generally, to be the procuring cause of a sale, "a broker must show that he called the potential purchaser's attention to the property and that it was through his efforts that the sale . . . was consummated." B & B Super Markets, Inc. v. Metz, 260 So.2d 529, 531 (Fla. 2d DCA 1972). If the broker locates a purchaser, inaugurates negotiations with him, and so informs the seller, he is the procuring cause and is entitled to his commission even though the seller interrupts the negotiations and sells to the purchaser at a price lower than the one which the broker was authorized to accept. Estes v. Moylan, 94 So.2d 362, 365 (Fla.1957); Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876 (1944); 7 Fla.Jur.2d, Brokers §§ 92, 99.

A broker was found to be the procuring cause in a case factually similar to the instant case. Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975); Realty Marts, Inc. v. Barlow, 348 So.2d 63 (Fla. 1st DCA 1977). There, as here, the broker found a customer who was ready, willing and able to purchase and showed him the property. The customer rejected a sales contract submitted by the broker and initiated negotiations directly with the seller....