LARRY E. HALBERT AND GARRY K. HALBERT, APPELLANTS,
v.
FIRST REALTY SERVICES, INC., APPELLEE
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PER CURIAM.
This cause is before us on appeal from a final judgment entered pursuant to a directed verdict in favor of the plaintiff below (First Realty Services, Inc.) regarding an exclusive right to sale clause in a real estate contract. We reverse.
If there is room for difference among reasonable men as to existence of a material fact sought to be established or as to a material inference which reasonably might be drawn from established facts, the case should be submitted to the jury. Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. 3d DCA 1967).
Upon review of the record, we find that the ambiguous testimony of Mr. Halbert (defendant below) would support a jury finding that the real estate contract had been modified such that a nonexclusive right to sale existed.
Accordingly, we reverse and remand for a new trial.
WENTWORTH and ZEHMER, JJ., and J. LEWIS HALL, Jr., Associate Judge, concur.
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Applegate v. Nat'l Health Care Affiliates, Inc., 667 So. 2d 332 (Fla. 1st DCA 1995)…2d 1323 (Fla. 4th DCA 1986). There appear to be factual questions regarding whether appellant’s failure to receive notice was attributable to neglect on her part or an excusable misunderstanding. Compare Pierre v. Oriente Sugar Cane Planting, Inc., 504 So. 2d 431 (Fla. 1st DCA 1987) (reversing and remanding for further proceedings despite the employee’s untimely notice of appeal because the appellant had been denied due process of law under the particular circumstances of the case, specifically, the fact tha…
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Kiwanis Club OF Little Havana, Inc. v. de Kalafe, 723 So. 2d 838 (Fla. 3d DCA 1998)…by failing to permit the jury to consider whether the agreement was modified. Whether a written contract has been modified by subsequent oral agreement or by course of dealing is a question of fact for the jury. Halbert v. First Realty Serv., Inc., 504 So. 2d 431 (Fla. 1st DCA 1987). The court’s repeated erroneous instructions to the jury were tantamount to directing a verdict in de Kalafe’s favor. See Gencorp, Inc. v. Wolfe, 481 So. 2d 109, 112 (Fla. 1st DCA 1985), review denied, 491 So. 2d 281 (Fla.1986).…
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Burina Robinson v. Fla. Unemployment Appeals Comm'n & Morrison, Inc., 526 So. 2d 198 (Fla. 4th DCA 1988)…tice, nor did she receive a previously-mailed notice of the hearing before the appeals referee. Under these circumstances dismissal of her February 24, 1985 appeal constitutes a denial of due process. See Pierre v. Oriente Sugar Cane Planting, Inc., 504 So. 2d 431 (Fla. 4th DCA 1987); State ex rel. Owra v. Florida Department of Commerce, Division of Employment Security, 351 So. 2d 769 (Fla. 3d DCA 1977). Accordingly, I concur in the result attained by the majority opinion.…
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- Miami Coin-O-Wash, Inc. v. McGOUGH, 195 So. 2d 227 (Fla. 3d DCA 1967)