Gilman Yacht Sales, Inc. v. FMB INVESTMENTS, INC.

• Decision Date: 23 February 2000
• Docket Number: No. 4D98-3635.,4D98-3635.
• Citation: 766 So.2d 294
• Parties: GILMAN YACHT SALES, INC., Appellant, v. FMB INVESTMENTS, INC.; LBB/Oceantide, Inc.; and Oviatt Marine, Inc. Appellees.
• Court: Florida District Court of Appeals

766 So.2d 294

GILMAN YACHT SALES, INC., Appellant, v. FMB INVESTMENTS, INC.; LBB/Oceantide, Inc.; and Oviatt Marine, Inc. Appellees.

No. 4D98-3635.

District Court of Appeal of Florida, Fourth District.

February 23, 2000.

Opinion Corrected on Grant of Rehearing March 31, 2000.

Robert L. Jennings and James B. Innes of Jennings & Valancy, P.A., Fort Lauderdale, for appellant.

Gregory G. Olsen and Paul M. Volmert of Morgan, Olsen & Olsen, Fort Lauderdale, for appellees FMB Investments, and LBB/Oceantide.

Ralph L. McGrath, Jr. of Vernis & Bowling of Fort Lauderdale, P.A., Fort Lauderdale, for appellee Oviatt Marine, Inc.

FARMER, J.

FMB Investments (seller) and Roger Triplett (buyer) entered into a contract for the sale of a yacht. Oviatt Marine Group, which held the listing, and Gilman Yacht Sales, which procured the buyer, participated as brokers in arranging the sale. Buyer failed to close within the time set by contract. As a result, seller and the two brokers took the deposit as liquidated damages under paragraph 7 of the contract which provides:

"In the event that closing is not consummated due to non-performance of Buyer... all deposit funds paid prior to closing shall be retained by the Seller and Broker as liquidated and agreed damages, and the parties shall be relieved of all obligations under this Agreement. Buyer and Seller agree that the forfeited deposit shall be [divided] equally between the Seller and Broker(s) after all expenses incurred on behalf of Buyer against the Vessel have been paid from the deposit." [e.s.]

Two months later, buyer contacted Oviatt (listing broker) to express his continuing interest in purchasing the vessel. As a consequence of discussions that ensued, buyer purchased the yacht from seller under an oral agreement, with title conveyed by a new corporation formed by seller for this sale.¹ Listing broker received a full 10% commission of $120,000 from this sale under the oral agreement, the entire commission payable under the listing agreement.

After learning of the sale, Gilman (selling broker) filed suit for a commission against seller and listing broker, as well as the new corporate entity that had formally conveyed title. In time, selling broker moved for a partial summary judgment. The motion was based on paragraph 14 of the original contract which provides:

"This Contract shall be binding on all parties herein, their heirs, personal representatives and/or assigns, when this Contract shall have been signed by all parties or their duly authorized agents. Seller agrees not to sell the vessel or enter in to any contract for the sale while this contract is in effect. If the sale is not consummated per the terms of this Agreement, and the Buyer and Seller make direct arrangements between themselves within two (2) years after this agreement is terminated for transfer of ownership of the vessel, the Seller agrees to pay Broker(s) an amount identical to the commission the Broker(s) would receive under the terms of this Agreement." [e.s.]

The trial court denied this motion, reasoning that the provisions of paragraph 14 dealing with a brokers commission for a later sale had been, as it were, trumped by the provisions of paragraph 7 dealing with buyers breach.

Selling broker then filed an amended complaint, again asserting a right to the commission under paragraph 14. The adverse parties in turn filed their own motion for summary judgment, arguing again that paragraph 7 prevailed over paragraph 14. The trial court granted their motion and ultimately entered a final judgment in their favor. Again, the court concluded that, as a matter of law, paragraph 7 extinguished any obligations of the seller and the listing broker to the selling broker under paragraph 14 of the original contract. On appeal, selling broker maintains that the trial court's construction of the written contract is erroneous. We agree.

The interpretation of a written contract is a question of law to be decided by the court. DEC Electric, Inc. v. Raphael Construction Corp., 558 So.2d 427, 428 (Fla.1990); Royal Oak Landing Homeowner's Assoc. v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). An appellate court is not bound to give the trial judge's interpretation or construction of a contract any weighted presumption of correctness. Royal Oak Landing, 620 So.2d at 788; see also Florida Power Corp. v. Lynn, 594 So.2d 789, 791 (Fla. 2d DCA)

. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language. See Gumberg v. Gumberg, 755 So.2d 710 (Fla. 4th DCA 199...