Kline v. Pyms Suchman Real Estate Co., s. 73--1515

• Decision Date: 19 November 1974
• Docket Number: 74--332,Nos. 73--1515,s. 73--1515
• Citation: 303 So.2d 401
• Parties: Stanley J. KLINE et al., Appellants, v. PYMS SUCHMAN REAL ESTATE COMPANY, a Florida corporation, Appellee. Stanley J. KLINE et al., Appellants, v. Irwin E. KOTT, Appellee.
• Court: Florida District Court of Appeals

Page 401

303 So.2d 401

Stanley J. KLINE et al., Appellants, v. PYMS SUCHMAN REAL ESTATE COMPANY, a Florida corporation, Appellee.

Stanley J. KLINE et al., Appellants, v. Irwin E. KOTT, Appellee.

Nos. 73--1515, 74--332.

District Court of Appeal of Florida, Third District.

Nov. 19, 1974.

Rehearing Denied Dec. 11, 1974.

McCormick, Bedford & Backmeyer, Miami, for appellants.

Pallot, Stern, Proby & Adkins, Bolles, Goodwin, Ryskamp & Welcher, Jepeway, Gassen & Jepeway, Kovner, Mannheimer, Greenfield & Cutler, Miami, for appellees.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PEARSON, Judge.

These appeals, which arose out of the same litigation, were prosecuted separately but may properly be considered together. Each appeal is from a summary final judgment for the plaintiffs, counter-defendants in an action for a real estate broker's commission. The appellants, who were some of the defendants, are Stanley J. Kline, Charlotte Kline and E. B. Kline. They will be referred to as the Klines. The appellees are Irwin E. Kott and Pyms-Suchman Real Estate Company.

The appellees are seeking real estate broker's commissions. The appellants are defending upon a claim that the brokers are not entitled to commissions because of their failure to disclose appellee Pym's interest as a purchaser and because of the broker's misrepresentations as to the true value of the land involved.

The dispute between appellant-sellers and appellee-purchasers arose out of an abortive buy-sell real estate transaction. The claims for commission were consolidated in the trial court with an action for specific performance brought by the purchasers. The case culminated in a judgment for specific performance and that judgment was affirmed upon appeal. See Kline v. Devcon Realty Corp., Fla.App.1973, 285 So.2d 641.

Sometime prior to September 19, 1972, the appellants (Stanley J. Kline, Charlotte Kline, and E. B. Kline), the Slewetts, the Danskys and the Kotts, being all of the owners of the property, authorized Irwin E. Kott (one of the owners and a real estate broker) to find a buyer for the property at a price of two million dollars in return for a $200,000 commission. Kott, on behalf of all of the owners of the property, then approached Jack Pyms to find a purchaser for the property at the two million dollar price in return for half that commission. Pyms then discussed the offer with Clifford Suchman, his partner in the appellee brokerage company, Pyms-Suchman Real Estate Company. They procured Jemco Mastercraft Homes, Inc., a corporation in which Messrs. Pyms and Suchman owned fifty percent (50%) of the capital stock, to accept the offer made by Kott to sell the property for two million dollars. All of the discussions relative to the sale of the property to Jemco were had through Kott, the spokesman for the selling group.

All of the owners of the property, including the appellants, then signed the written contract to sell the property to Jemco for two million dollars. The appellants, even though they signed the contract, had 'always felt that the land was worth more.' Despite the appellants' belief that the property was worth more than the two million dollar price set on it by the appellants and the other owners, the appellants did not cause an appraisal to be made on the property until after suit was filed.

Throughout the transaction, the purchasers had no conversations or meetings with any of the sellers, as all conversations up through the date of closing were with sellers' agent, Kott. At all times, Kott was aware of the fact that Jack Pyms and Clifford Suchman were principals in Jemco. There were never any negotiations over the price, as Jemco purchased it for the sellers' asking price of two million dollars.

Kott owned a one-ninth interest in the property. As a broker and representative of the other purported sellers, including appellants, Kott had presented the offer of sale and arranged a purchase through Pyms-Suchman. There followed a series of assignments of the contract, with Devcon Realty Corp. and SOJ Realty Corp., as trustees, ultimately acquiring the interest in the contract. Jack Pyms and Clifford Suchman are the principals of appellee, Pyms-Suchman Real Estate Company, and together they also owned fifty percent of the stock of Jemco, the original buyer, and SOJ Realty Corp., one of the ultimate assignees.

The contract provided that the brokers were to receive a two hundred thousand dollar ($200,000.00) commission from the sale, and Pyms and Kott agreed to participate equally in that commission.

Appellants-Kline refused to deliver their deed conveying their interest in the property to the purchasers. Thereafter, Devcon and SOJ commenced the action for specific performance mentioned above. The appellants answered the complaint and affirmatively defended on the basis that there existed a conspiracy between Kott, Pyms and Suchman for the purpose of defrauding appellants and to effect a sale of the property at a price less than its fair value. The appellants alleged that Kott, as well as Pyms, knew that the land in question was worth in excess of $4,000,000.00 when the deposit receipt was executed. They further alleged that Kott was acting as a real estate broker and had breached his fiduciary duty owed to the appellants as their broker. It was specifically alleged that Kott failed to make a full disclosure to the appellants prior to the signing of the contract of sale as to the identity of the buyers and as to the fair value of the land. Kott filed in the court below a crossclaim against the appellants claiming his share of the real estate commission, and the appellants filed a counter-crossclaim against Kott claiming the alleged breach of fidicuary duty set forth above. The trial court enterted a summary final judgment in favor of Kott granting him judgment in the sum of approximately $67,000.00 and dismissing with...