Florida Boca Raton Housing Ass'n v. Marqusee Associates of Fla., Inc., 64-878
| Decision Date | 13 July 1965 |
| Docket Number | No. 64-878,64-878 |
| Citation | 177 So.2d 370 |
| Parties | FLORIDA BOCA RATON HOUSING ASSOCIATION, Inc., a Florida corporation, Appellant, v. MARQUSEE ASSOCIATES OF FLORIDA, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Williams, Salomon & Kenney, Miami, for Appellant.
Martin Yelen, Miami, for appellee.
Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.
The appellant, Florida Boca Raton Housing Association, Inc., was defendant in the trial court. The action at law, brought by the appellee, Marqusee Associates of Florida, Inc., claimed the balance of a brokerage commission. A final judgment was rendered in favor of the appellee after a nonjury trial. The appellee had acted as broker on behalf of the vendor-appellant in the sale of certain real property. The appellant accepted a purchase money mortgage on the property sold. It was agreed that the broker's fee would be paid by the appellant periodically out of proceeds from the mortgage payments.
The complaint alleged that the appellant acknowledged its indebtedness to the plaintiff and that part payment was made, leaving a balance due of $24,518.88. Attached to the complaint was a letter of acknowledgment which indicated the parties had agreed for the payment by the appellant-vendor of the brokerage commission to be made 'over a period of five years in equal installments commencing with the first principal payment on the mortgage, and payable as, if and when principal payments are made, and accelerated if said principal payments are accelerated.' It was then alleged that the appellant had disposed of the mortgage either by assignment or sale and that therefore the agreed payments on the commission were accelerated.
The appellant moved to dismiss on the sole ground that the complaint failed to state a cause of action. The motion was denied. In its answer the appellant admitted the making of the agreement but denied that it was indebted thereon. The answer set forth that the assignment of the mortgage was for far less than the principal amount and that because of this fact the plaintiff was not entitled to recover any further portion of the indebtedness on the commission.
The parties entered into a stipulation that there was no need for testimony and that the pleadings presented only a question of law for the court to determine. The trial judge found for the plaintiff in the amount claimed and the defendant now appeals.
On this appeal two points are presented. The first urges that the judgment must be reversed because there is no proof in the record that the plaintiff was a licensed broker or real estate salesman at the time the alleged commission was earned. This point could only have been raised on the motion to dismiss inasmuch as it was not raised in the answer and since the stipulation at trial was that no evidence need be presented. We must determine therefore whether or not a complaint for an indebtedness based upon an earned brokerage commission is fatally defective if it fails to allege that the plaintiff is a licensed real estate broker or salesman.
Section 475.41 Fla.Stat., F.S.A., provides as follows:
'No contract for a commission or compensation for any act or service enumerated in subsection (2) of § 475.01 shall be valid unless the broker or salesman shall have complied with this Chapter in regard to registration and renewal of the certificate at the time the act or service was performed.'
It may well be argued that this statute establishes a public policy in the State of Florida under which unlicensed real estate brokers or salesmen are not entitled to recover commissions in the courts of this State and that accordingly, the holding of a license must be alleged in the complaint to entitle the broker or salesman to relief with failure to do so, making the complaint vulnerable to attack by a motion to dismiss. Cf., Pokress v. Tisch Florida Properties, Inc., Fla.App.1963, 153 So.2d 346.
In O'Daniel v. Kulosa, 97 Fla. 269, 120 So. 357, the Supreme Court of Florida considered the sufficiency of an allegation in a declaration to comply with a previous statute on the same subject. That statute (Fla.Laws 1925, Ch. 10233 § 3) provided in part:
'* * * No person shall be permitted to recover in any court in this State for services rendered or claimed to have been rendered in the sale or purchase of real estate, unless such person has, at the time of such transaction, complied with the provisions of this Act as to payment of license fees.'
It was held that a...
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