IRVING KERN, APPELLANT/CROSS APPELLEE,
v.
BENNY L. MARTZ, ET AL., APPELLEES/CROSS APPELLANTS
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The court held that the amended complaint stated a cause of action, and it was reversible error to dismiss it.
A broker sued buyers for a real estate commission after the trial court dismissed the complaint. The buyers argued the seller owed the commission and …
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LETTS, Judge.
The trial court dismissed, with prejudice, an amended complaint filed by a broker seeking a real estate commission and other relief. We reverse.
The facts are complex, but we see no need to set them forth in agonizing detail. Basically, the broker had suffered dismissal of his complaint against the buyer and his associates after they successfully argued that the complaint, and its attached exhibits, called for payment of any brokerage fee due by the seller not the buyers. Apparently they were also successful in their contention that in any event, the contemplated sale never took place. However, the complaint alleged that the buyers were obligated to pay the commission and that the sale was concluded. Indeed, the sales agreement attached to the complaint, while obligating the seller to pay the commission in one segment thereof appeared elsewhere to place the onus of actually paying over any commission on the buyers.
As we view the amended complaint, it stated a cause of action against all the defendants and the defenses thereto must be affirmatively pled. We do not hold that the broker’s allegations can survive a directed verdict or even a summary judgment. That remains to be seen. We simply hold that it was reversible error to dismiss the amended complaint in favor of the buyer and his associates.
REVERSED AND REMANDED.
DOWNEY and WALDEN, JJ., concur.
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Kairalla v. John D. & Catherine T. MacARTHUR Found., 534 So. 2d 774 (Fla. 4th DCA 1988)…umerous occasions that a dismissal with prejudice should not be ordered without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action. Kern v. Martz, 462 So. 2d 867 (Fla. 4th DCA 1985); Delia and Wilson, Inc. v. Wilson, 448 So. 2d 621 (Fla. 4th DCA 1984); Hansen v. Central Adjustment Bureau, Inc., 348 So. 2d 608 (Fla. 4th DCA 1977). In the instant case, the trial court concluded that the plaintiff could not re…