C. ROBERT CUSICK, AS TRUSTEE, L. RONALD CAPOZZOLI, INDIVIDUALLY, AND RICHARD VAZZA, INDIVIDUALLY, APPELLANTS,
v.
CONDOMINIUM MARKETING CONSULTANTS, INC., A FLORIDA CORPORATION; ALICIA CERVERA, INDIVIDUALLY, AND JEAN INMAN, INDIVIDUALLY, APPELLEES
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An assignee who knows of a brokerage commission agreement is bound by it, even without express assumption.
[1] An assignee who accepts an assignment pursuant to all terms and conditions of a purchase agreement and assumes all obligations is bound by those terms and conditions to t…
[2] An assignee with knowledge of a brokerage commission agreement is subject to that agreement, even if the assignee did not expressly assume that specific obligation.
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Join FLexlaw to unlock all legal intelligenceCusick, as assignee of a real estate purchase agreement, knew of a $250,000 brokerage commission owed by his assignor. CMC sued Cusick for the commiss…
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NESBITT, Judge.
C. Robert Cusick purchased real estate as assignee of the contract of sale. He appeals an order granting summary final judgment in the amount of $250,000 plus interest in favor of Condominium Marketing Consultants, Inc. and its owners (CMC), in CMC’s suit for brokerage commission due. CMC cross-appeals an order denying its motion for attorneys’ fees under Section 57.105, Florida Statutes (1981).
The Assignment of Agreement of Purchase and Sale provided:
The Assignee [Cusick] does hereby accept this Assignment pursuant to all of the terms and conditions set forth in the Purchase Agreement and assumes all of the obligations and agrees to be bound by and to comply with all of the terms and conditions set forth therein to the same extent as if the Assignee had originally executed the Purchase Agreement as Purchaser. The original Purchase Agreement in unambiguous terms rendered, the purchaser liable to CMC for “all real estate brokerage commissions which may be owing .... ”
It is undisputed that Cusick knew his assignor had agreed to pay CMC a $250,-000 brokerage commission. Cusick’s defense to CMC’s suit was that although he had knowledge of the brokerage commission agreement, he never adopted or expressly assumed the obligations of that particular agreement. This defense is, as a matter of law,-unavailing, Fiberchem, Inc. v. General Plastics Corp., 495 F. 2d 737 (9th Cir.1974) (an assignee with knowledge of the equities of a third party against the assigned right takes his claim subject to those equities); see also Shreve Land Company, Inc. v. J & D Financial Corp., 421 So. 2d 722, 724 (Fla.3d DCA 1982) (an assignee succeeds to his assignor’s rights under the assignment of a contract and takes it with all the burdens to which it is subject in the hands of the assignor), but is not so devoid of merit as to constitute a frivolous defense justifying the award of attorneys’ fees pursuant to Section 57.105. See the discussion in Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982). Consequently, both orders under review must be affirmed.
Affirmed.
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Ciamar Marcy, Inc. v. Renato M. Monteiro da Costa, 508 So. 2d 1282 (Fla. 3d DCA 1987)…n itself reveals, the defendants’ resistance to the plaintiff’s claim for punitive damages — although now declared to be devoid of merit — was, at the least, arguable both factually and legally. See Cusick v. Condominium Marketing Consultants, Inc., 434 So. 2d 25 (Fla. 3d DCA 1983). The final judgment under review is affirmed in all respects, except that the award of attorney’s fees for the plaintiff is reversed. Affirmed in part, reversed in part.…
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The Keyes Co. v. Friedes, 497 So. 2d 916 (Fla. 3d DCA 1986)…rance Co., 410 So. 2d 501 (Fla.1982), for attorney’s fees awards under Section 57.105, Florida Statutes (1985). See Fireman’s Fund Insurance Co.'s v. Rojas, 447 So. 2d 1023, 1023 (Fla. 3d DCA 1984); Cusick v. Condominium Marketing Consultants, Inc., 434 So. 2d 25, 26 (Fla. 3d DCA), pet. for review dismissed, 436 So. 2d 98 (Fla.1983); Allen v. Estate of Dutton, 384 So. 2d 171, 175 (Fla. 5th DCA), pet. for review denied, 392 So. 2d 1373 (Fla.1980). For the above reasons, the final order awarding attorney’s f…
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Marchetta v. Turner, 541 So. 2d 1323 (Fla. 3d DCA 1989)…assignees. If there is an obligation of the initial buyer to pay a broker’s commission — a question not yet resolved — there is at least a genuine issue of fact and law as to the assignee’s liability. See Cusick v. Condominium Mktg. Consults, Inc., 434 So. 2d 25 (Fla. 3d DCA), pet. for rev. dismissed, 436 So. 2d 98 (1983)(assignee of sales contract, who knew his assignor had agreed to pay brokerage commission under purchase agreement, was liable for the commission). Reversed and remanded.…
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
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Shreve Land Co., Inc. v. J & D Fin. Corp., 421 So. 2d 722 (Fla. 3d DCA 1982)
- Amertec-Granada, Inc. v. OLD Republic Ins. Co., 421 So. 2d 722 (Fla. 3d DCA 1982)
- Fiberchem, Inc. v. Gen. Plastics Corp., 495 F.2d 737 (9th Cir. 1974)