FORD REALTY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
LANE WOOD, INC., JIM KAY HOMES, INC., AND FORD DEVELOPMENTS, INC., APPELLEES
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Ford Realty contracted with Ford Developments as an exclusive real estate broker, but the contract was terminated in March 1975 for allegedly unsatisfactory performance. Ford Realty sued for breach of contract and damages based on fraudulent conspiracy, and the trial court granted summary judgment for all defendants. The appellate court reversed, finding factual issues precluding summary judgment on the contract claim and procedural defects in pleading the tort claims.
Summary judgment was improper. Whether Ford Realty satisfactorily performed its duties under the contract was a factual question for the jury, not determinable on summary judgment. Additionally, the amended complaint improperly intermingled breach of contract and tort allegations without separating them into distinct counts, and the defendants did not plead an economic privilege defense that might have been available to Jim Kay Homes and Lane Wood regarding tortious interference claims.
[1] A genuine issue of material fact exists regarding whether a party's performance under an exclusive brokerage agreement was unsatisfactory, precluding summary judgment on…
[2] A claim for tortious interference with a contractual relationship may be barred by economic privilege, but this defense must be affirmatively pled.
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Join FLexlaw to unlock all legal intelligence“On the contract action as against Ford Developments, Inc., the only party other than the appellant to the exclusive brokerage agreement, it was an issue of fact to be determined as to whether or not the appellant had failed to satisfactorily perform under the agreement which would permit the committee to terminate the agreement for cause.”
Establishes that satisfactory performance is a factual question precluding summary judgment
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Join FLexlaw to unlock all legal intelligenceFord Realty entered into an exclusive real estate brokerage contract with Ford Developments, Inc. (a subsidiary of Jim Kay Homes, Inc., which was owne…
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PER CURIAM.
Appellant entered into an exclusive real estate brokerage contract with the appellee, Ford Developments, Inc. (a wholly owned subsidiary of Jim Kay Homes, Inc., which was owned 100% by Lane Wood, Inc.)
By its terms, the contract was to expire on the 30th day of April, 1977. It contained a paragraph permitting premature termination upon a finding by a committee that the appellant’s services were unsatisfactory.1 Pursuant to this provision, a committee was created and the appellant’s contract was terminated, allegedly for unsatisfactory performance, on the 18th day of March, 1975. The appellant then brought an action to recover compensatory damages for the breach of the employment agreement, and punitive damages alleging a fraudulent conspiracy to cause its termination as the exclusive sales agent. After an amended complaint had been filed, the trial court granted a summary judgment for all the defendants. We reverse.
On the contract action as against Ford Developments, Inc., the only party other than the appellant to the exclusive brokerage agreement, it was an issue of fact to be determined as to whether or not the appellant had failed to satisfactorily perform under the agreement which would permit the committee to terminate the agreement for cause. Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla.2d DCA 1979); Wills v. Sears, Roebuck and Company, 351 So. 2d 29 (Fla.1977); Mejiab v. Rodriguez, 342 So. 2d 1066 (Fla.3d DCA 1977); Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975); McClendon v. Key, 209 So. 2d 273 (Fla. 4th DCA 1968); Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
The amended complaint was inart-fully drawn and interwove the breach of contract action and the alleged cause of action for tortious conduct among its several paragraphs. It apparently attempts to allege either tortious interference with the business relationship or a conspiracy to fraudulently cause the termination. As to the alleged tort of interference with the contractual relationship, the appellees, Jim Kay Homes, Inc. and Lane Wood, Inc., claim economic privilege, citing Wackenhut Corporation v. Maimone, 389 So. 2d 656 (Fla. 4th DCA 1980); Ethyl Corp. v. Balter, 386 So. 2d 1220 (Fla.3d DCA 1980); Nitzberg v. Zalesky, 370 So. 2d 389 (Fla.Sd DCA 1976). We find this argument unavailable to these appellees because no such defense was pled although it might, in fact, constitute a bar to such a tortious claim. However, the plaintiff also has attempted to allege a conspiracy to cause the wrongful discharge, which would be a different cause of action sounding in tort. Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547 (Fla.1977); Margolin v. Morton F. Plant Hospital Association, Inc., 342 So. 2d 1090 (Fla.2d DCA 1977); Snipes v. West Flagler Kennel Club, Inc., 105 So. 2d 164 (Fla.1958).
Therefore, we reverse the summary judgment as to all defendants and return the matter to the trial court with directions to require the plaintiff to file an amended complaint within a set number of days,2 setting out its breach of contract claims and tortious claims in separate counts, and thereafter to receive such responsive pleadings from the defendants in the trial court as they may be advised.
This opinion is not to be construed as preventing the trial court, upon further appropriate proceedings, from entertaining additional motions for summary judgment.
Reversed and remanded, with directions.
. “10. Termination. This Agreement may be terminated during the term hereof as follows:
(c) In the event that Realty does not satisfactorily perform its duties and render its services to Developments as outlined above, then this Agreement may be terminated by Developments based on the majority decision of a committee composed of five (5) members, two of whom are appointed by Realty, two of whom by Jim Kay Homes, Inc. and David L. Rozen.”
. Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla. 1963); Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956).
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Peacock v. Gen. Motors Acceptance Corp., 432 So. 2d 142 (Fla. 1st DCA 1983)…971), cert. den., 249 So. 2d 36 (Fla.1971) (unjustified interference is part of the plaintiffs case) with Wackenhut Corp. v. Maimone, 389 So. 2d 656 (Fla. 4th DCA 1980), pet. for rev. den., 411 So. 2d 383 (Fla. 1983); Ford Realty v. Lane Wood, Inc., 405 So. 2d 222 (Fla. 3d DCA 1981) (justification or privilege is an affirmative defense). . The counterclaim count for tortious interference alleged: 6. This is a claim against GMAC for the tortious, intentional, and unjustified interference with the advantageou…
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Melbourne Med. Lab., Inc. v. LAB Corp. OF Am., 722 So. 2d 962 (Fla. 5th DCA 1998)…ntageous business relationship and the setoff defense based thereon. MML is correct that competition or economic privilege is an affirmative defense to a tortious interference claim and as such must be pled. See Ford Realty, Inc. v. Lane Wood, Inc., 405 So. 2d 222 (Fla. 3d DCA 1981). Lab Corp did not plead any affirmative defenses to the counterclaim, instead arguing competition for the first time at the summary judgment hearing. Although Lab Corp contends that the amended counterclaim is unclear as to what c…
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Republic Nat'l Bank v. Araujo, 697 So. 2d 164 (Fla. 3d DCA 1997)…ion of Republic’s failure to properly monitor the investments was properly one for the jury rather than the court on a motion for summary judgment. See Lees v. Pierce, 648 So. 2d 839, 840-41 (Fla. 5th DCA 1995); Ford Realty, Inc. v. Lane Wood, Inc., 405 So. 2d 222, 223 (Fla. 3d DCA 1981); Space Distribs., Inc. v. Flagship Bank, 402 So. 2d 586, 589 (Fla. 5th DCA 1981); DeCarlo v. Sammons, 375 So. 2d 351, 351 (Fla. 3d DCA 1979). Hence, the trial court’s denial of this motion was not error. We further find no e…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Politis v. Gen. Hotel & Rest. Supply Corp., 386 So. 2d 1220 (Fla. 3d DCA 1980)
- Grady Scott Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975)
- Watkins DRY Wall, Inc. v. Drummond Court Corp., 373 So. 2d 719 (Fla. 3d DCA 1979)
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Wackenhut Corp. v. Maimone, 389 So. 2d 656 (Fla. 4th DCA 1980)
- Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979)
- Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547 (Fla. 1977)