Richland Grove & Cattle Co., Inc. v. Easterling

• Decision Date: 19 May 1988
• Docket Number: No. 70523,70523
• Parties: 13 Fla. L. Weekly 321 RICHLAND GROVE & CATTLE CO., INC., etc., Petitioners, v. Tom EASTERLING, Respondent.
• Court: Florida Supreme Court

Page 685

526 So.2d 685

13 Fla. L. Weekly 321

RICHLAND GROVE & CATTLE CO., INC., etc., Petitioners, v. Tom EASTERLING, Respondent.

No. 70523.

Supreme Court of Florida.

May 19, 1988.

Rehearing Denied July 12, 1988.

A.P. Gibbs of Gibbs, McAlvanah & Parnell, P.A., Dade City, for petitioners.

Charlie Luckie, Jr. of McGee, Luckie & Tyner, a div. of Dayton, Sumner, Luckie & McKnight, P.A., Brooksville, for respondent.

OVERTON, Justice.

This is a petition to review Richland Grove & Cattle Co., Inc. v. Easterling, 505 So.2d 451 (Fla.2d DCA 1987), in which the district court certified the following question as one of great public importance:

WHEN A REAL ESTATE BROKER'S CONTRACT DOES NOT PROVIDE A TIME WITHIN WHICH IT IS TO BE PERFORMED, AND THE LAW IMPLIES PERFORMANCE WITHIN A REASONABLE TIME, IS THE QUESTION OF WHETHER PERFORMANCE OCCURRED WITHIN A REASONABLE TIME NORMALLY ONE OF LAW OR FACT?

Id. at 454. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We find the question is one of law when, as in this case, the broker did not contact the seller concerning the specific property for a period of two and one-half years. That circumstance requires a finding that the contract was abandoned. We hold that no commission is due and we quash the decision of the district court.

This cause was commenced when the respondent, Tom Easterling, a real estate broker, filed a complaint against Richland Grove & Cattle Co., Inc., to recover a real estate broker's commission on the sale of a citrus grove belonging to that company. The Richland Grove Company is owned by the O'Berry family and C. Wynn O'Berry is president. In late 1979, O'Berry entered into an open, verbal listing of the grove property with Easterling. In November, 1980, Easterling produced a prospective purchaser, whose offer was refused by O'Berry. In May of 1983, O'Berry sold the property to Floyd Philmon and his wife.

At trial, Floyd Philmon testified that he had learned of the property from his son, a school teacher, who had been told about the property by a fellow teacher who also worked as a real estate associate for Easterling. The senior Philmon approached O'Berry directly about the property and advised him that he had had no contact with any broker. O'Berry testified that at the time he talked to Philmon he had had no contact with Easterling about this specific property from November of 1980 to May of 1983, and felt he no longer had the property listed with Easterling since he believed Easterling had abandoned his listing.

Easterling testified that he had been showing the property during the two and one-half year period from November, 1980, to May, 1983; that he discussed it with his sales personnel and real estate agents from other offices; that he had contacted O'Berry about a man from Tampa who wanted to take half the property but couldn't remember whether that offer had taken place before or after November, 1980; and that he saw O'Berry regularly on social occasions and thought he had mentioned the property to him at those times. On cross-examination, he testified that from November, 1980, until May, 1983, he "might or might not have" contacted O'Berry about this specific piece of property. In May, 1983, Easterling made a demand for a commission because he believed the listing contract was still valid and his salesperson had informed the son of the purchaser about the property and, therefore, was the procuring cause of its sale.

The trial court found that the facts were in dispute and submitted the issue of abandonment to the jury. The jury found for the broker and a judgment was entered accordingly. On appeal, the Second District affirmed in a split decision. The majority opinion acknowledged that after November, 1980, "while appellee and O'Berry remained personal friends and had contact nearly every week, there was no further contact specifically regarding the property until May, 1983," but concluded that "because there is support for the trial judge's finding that there existed disputed facts, the issue of abandonment of the contract by reason of the lapse of a reasonable amount of time was properly submitted to the jury." 505 So.2d at 453-54. The dissent concluded that this thirty-month period clearly represented an abandonment as a matter of law because "[t]here is no dispute over the fact that appellee did not specifically contact appellant concerning the property from November of 1980 until May of 1983." 505 So.2d at 455 (Grimes, J., dissenting). It relied on our decision in Shuler v. Allen, 76 So.2d 879 (Fla.1955), which found that a seventeen-month gap constituted abandonment, and the decision in Wilkins v. W.B. Tilton Real Estate and Insurance, Inc., 257 So.2d 573 (Fla. 4th DCA 1971), which determined that a nineteen-month gap constituted abandonment.

We find that our decision in Shuler v. Allen is controlling. In that case, the sellers had orally listed a hotel for sale with a broker at a price of $100,000, with $50,000 to be paid in cash and the balance to be represented by a mortgage or mortgages. In July of 1951, prospective purchasers from South Carolina made an offer to purchase the property for $90,000 with $45,000 to be paid in cash and the balance secured by mortgages. The Shulers rejected the offer, stating that they would accept no less than $100,000. From the fall of 1951 until March of 1953, the broker testified that he had periodic...