JOSEPH GATT, APPELLANT,
v.
THE KEYES CORPORATION, A FLORIDA CORPORATION, APPELLEE
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A real estate broker sued a seller for commission after procuring a contract for the sale of property. The seller's defense was that the buyer was not ready, willing, and able to complete the purchase because the buyer exercised a contractual option to cancel due to excessive repair costs. The court reversed summary judgment, finding disputed material facts regarding whether the buyer was ready, willing, and able.
Summary judgment was improperly entered because the seller's denial and affidavit in opposition to the broker's complaint placed in issue whether the buyer was ready, willing, and able, creating material questions of fact that precluded summary judgment.
[1] A broker is entitled to a commission when a purchaser is ready, willing, and able to complete the purchase, even if the sale does not close due to a contingency in the pu…
[2] A purchaser's right to avoid a contract based on inspection results renders the purchaser not ready, willing, and able to close.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The seller appeals from an order entering summary judgment in favor of a broker for his real estate commission.”
Establishes the nature of the appeal and that the seller/Gatt is challenging the summary judgment in favor of the broker.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGatt listed property with a broker for a 6% commission on the condition the broker find a ready, willing, and able purchaser. A prospective buyer sign…
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NESBITT, Judge.
The seller appeals from an order entering summary judgment in favor of a broker for his real estate commission. We reverse.
Gatt entered into a multiple listing agreement with a broker under which the broker was to find a ready, willing and able purchaser for Gatt’s property in exchange for a commission of six per cent of the sales price. A prospective purchaser signed a contract for purchase and sale. One of the terms of the contract was that the purchaser had the option to avoid the contract and receive reimbursement of his deposit if the roof and termite inspections indicated that repairs and/or termite eradication would cost in excess of three per cent of the purchase price.
The closing was set for November 1, 1981 at which time the inspections were not available. Subsequently, the prospective purchaser requested return of his deposit because the closing had not taken place. Gatt’s attorney responded that there was an understanding that the closing would be delayed to await the reports from the roof and termite inspections. When the reports were finally obtained, it became apparent that the repairs would be in excess of three per cent. On this basis, the purchaser notified Gatt’s attorney that he was exercising his option to have his deposit returned.
The broker instituted this action against Gatt for its broker’s commission alleging that it had procured a ready, willing and able purchaser. Gatt filed a general denial and two affirmative defenses. First, he claimed that at all relevant times he was ready, willing and able to proceed with the closing; and, second, he argued that the purchaser was not ready, willing and able because he chose to avoid the contract. On the broker's motion, Gatt’s second affirmative defense was stricken as being legally insufficient. Ultimately, summary judgment was entered in favor of the broker. The matters raised by Gatt’s affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense. Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. 1st DCA 1983); Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432 (Fla. 2d DCA), cert. denied, 177 So. 2d 475 (Fla.1965). Nonetheless, the denial by the seller, as well as his affidavit in opposition to the summary judgment, placed in issue the question as to whether the purchaser was ready, willing and able. Summary judgment was, therefore, improperly entered.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432 (Fla. 2d DCA 1965)
- Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. 1st DCA 1983)
- Hodge v. Jacksonville Terminal Co., 177 So. 2d 475 (Fla. 1965)
- Miller v. State, 177 So. 2d 475 (Fla. 1965)