E & S REALTY, INC., APPELLANT,
v.
AMERICAN EQUITY INTERNATIONAL CORP., AMERICAN EQUITY DEVELOPERS, INC., 2555 DEVELOPERS, INC., CORAM RESOURCES, S.A., ALDRICH RESOURCES, S.A., CLUB ATLANTIS, A JOINT VENTURE AND LAWYERS TITLE INSURANCE CORPORATION, APPELLEES
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Florida appellate court reversed summary judgment for defendants on accord and satisfaction claim, holding that a genuine issue of material fact exists regarding whether the plaintiff modified a restrictive endorsement on a settlement check with the defendants' consent.
A genuine issue of material fact precludes summary judgment where evidence suggests a restrictive endorsement on a settlement check may have been modified with both parties' consent, defeating an accord and satisfaction defense.
[1] A restrictive endorsement on a settlement check does not effect an accord and satisfaction if the endorsement was modified with the consent of both parties, presenting a…
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Join FLexlaw to unlock all legal intelligence“If the said modification was accomplished with the consent of both parties herein, there could be no accord and satisfaction sufficient to bar the plaintiff's claim brought below for real estate brokerage commissions.”
Court explaining that consensual modification of the endorsement would defeat the accord and satisfaction defense.
Shirley Attias, principal of plaintiff E & S Realty, Inc., received an $8,459.57 check from defendants containing a restrictive endorsement stating 'f…
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PER CURIAM.
The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings upon a holding that a genuine issue of material fact is raised upon this record as to whether an accord and satisfaction was reached in this case.
Although the plaintiff’s principal, Shirley Attias, accepted from the defendants an $8,459.57 check containing a restrictive endorsement which stated “final payment on all [plaintiff’s] commissions at Club Atlantis,” a genuine issue of material fact is presented as to whether Ms. Attias modified this endorsement, in the presence of and with the consent of an authorized agent of the defendants, by adding the language, “on units that closed.” If the said modification was accomplished with the consent of both parties herein, there could be no accord and satisfaction sufficient to bar the plaintiff’s claim brought below for real estate brokerage commissions. See Burley v. Mummery, 222 So. 2d 261 (Fla. 3d DCA 1969). This being so, summary judgment was inappropriately entered in this case given the state of this record.
Moreover, we are unpersuaded that the summary judgment should be affirmed on other grounds. We have not overlooked the defendants’ contentions to the contrary on this point, but find them to be without merit.
Reversed and remanded.
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Cited By
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Madison AT Soho II Condo. Ass'n, Inc. v. Devo Acquisition Enters., LLC, 198 So. 3d 1111 (Fla. 2d DCA 2016)…147 (Fla. 5th DCA 1990). Courts in Florida and elsewhere have plainly characterized statements that an offer was tendered in full satisfaction of a disputed claim as restrictive endorsements. See, e.g., E & S Realty, Inc. v. Am. Equity Int’l Corp., 478 So. 2d 1160, 1160 (Fla. 3d DCA 1985); Jobear, Inc. v. Dewind Mach. Co., 402 So. 2d 1357, 1358 [*1119] (Fla. 4th. DCA 1981); Yelen v. Cindy’s, Inc., 886 So. 2d 1234, 1235 (Fla. 3d DCA 1980); see. also Rhone v. State Auto. Mut. Ins. Co., 858 F. 2d 1507, 1511 (11t…
Authorities Cited
- Burley v. Mummery, 222 So. 2d 261 (Fla. 3d DCA 1969)