Sanson v. Dutcher, Higginbotham and Bass, Inc., 79-2416

• Decision Date: 29 July 1981
• Docket Number: No. 79-2416,79-2416
• Citation: 401 So.2d 913
• Parties: Arthur M. SANSON, Jr., a/k/a A. M. Sanson, Jr., and Nancy Mann Sanson, a/k/a Nancy W. Sanson, Appellants, v. DUTCHER, HIGGINBOTHAM AND BASS, INC., formerly known as Dutcher, Higginbotham, Mayer and Bass, Inc., Appellee.
• Court: Florida District Court of Appeals

Page 913

401 So.2d 913

Arthur M. SANSON, Jr., a/k/a A. M. Sanson, Jr., and Nancy Mann Sanson, a/k/a Nancy W. Sanson, Appellants, v. DUTCHER, HIGGINBOTHAM AND BASS, INC., formerly known as Dutcher, Higginbotham, Mayer and Bass, Inc., Appellee.

No. 79-2416.

District Court of Appeal of Florida, Fourth District.

July 29, 1981.

Robert E. Ziegler of Rogers, Morris & Ziegler, Fort Lauderdale, for appellants.

Raymond A. Doumar of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellee.

KAPNER, LEWIS, Associate Judge.

Defendant/appellant (Seller) appeals from an adverse judgment awarding plaintiff/appellee (Real Estate Broker) a commission for services rendered in connection with the sale of Seller's home. The trial court found as follows:

1. That although the Exclusive Right of Sale Agreement between the Plaintiff and Defendants dated April 7, 1977, had expired, the evidence credibly established that the Plaintiff continued, even during the ninety day period after the expiration of said Exclusive Right of Sale Agreement, to further promote counteroffers between the Defendants as sellers and the buyers, that as late as March of 1978, the plaintiff showed the defendants' home to a prospective purchaser, which efforts the defendants had opened their doors to receive and, accordingly, it cannot be said that the plaintiff abandoned its efforts to sell the defendants' home.

2. That while the evidence is not sufficient to support fraud or conspiracy on the part of the defendants to cheat or deny the plaintiff of its commission, there was a showing sufficient to conclude that the defendants excluded the plaintiff from an opportunity to further negotiate any counteroffers or any contract between the defendants and the buyers, eventually leading up to the April 10, 1979, Deposit Receipt Contract executed by the same purchasers and the defendants.

3. That the evidence was clear and convincing that the plaintiff devoted substantial time, effort and money to promote the selling of the defendants' home; however, this Court is mindful that such alone is not sufficient to justify a commission, but that the plaintiff's efforts and the nature of the plaintiff's relationship with the defendants and purchasers generated the cement that eventually sealed the final contract between the same buyers and the defendants which contract was substantially similar to the original offer obtained by the plaintiff from the same purchasers and accordingly, the efforts of the plaintiff satisfied the element of continuous negotiations as required by the procuring cause doctrine.

The basic issue raised by appellant is whether the trial judge correctly applied the procuring cause doctrine to the facts of this case, taking into consideration that the actual sale was consummated after the...