THUY THANH NGUYEN, APPELLANT,
v.
ROTH REALTY, INC., A FLORIDA CORPORATION, F/K/A FLORIDA BUSINESSES AND COMMERCIAL REALTY, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Roth Realty appealed a judgment in a real estate commission dispute, but the appellate court reversed because Roth Realty's complaint failed to allege compliance with a condition precedent in the exclusive listing contract—a requirement to provide a list of shown properties within ten days of contract expiration.
The complaint was fatally defective because it failed to allege compliance with the condition precedent. Roth Realty was required to allege that it had furnished the required list of parties to whom the property was shown within ten days of the termination date. The judgment against Nguyen was therefore improper.
[1] A complaint must state a cause of action.
[2] Failure to allege compliance with a condition precedent in a contract renders a complaint fatally defective.
Previewing 2 of 5 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“At common law, every condition precedent had to be alleged.”
Establishes the fundamental pleading requirement that conditions precedent must be alleged in a complaint
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn June 23, 1986, Nguyen and Roth Realty entered into an exclusive right of sale contract expiring December 31, 1986. The contract entitled Roth Realt…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.110(B) cases and more on FLexlaw
EATON, O.H., Jr., Associate Judge.
Nguyen appeals a final judgment rendered against him in a suit for a real estate commission.
On June 23, 1986, the parties entered into an exclusive right of sale contract for the sale of real estate. By its terms, the contract expired on December 31, 1986. It also provided for payment of a real estate commission after the expiration if the purchaser was “anyone with whom REALTOR or those working by or through the REALTOR, or the owner, has had negotiations prior to Termination Date.” However, in order to be entitled to the commission after the expiration date of the contract, the realtor had to comply with a condition precedent. That condition required the realtor “to furnish to Owner no later than ten (10) calendar days after Termination Date, a list of the names of all those parties to whom Property has been shown by the REALTOR and those working by or through the REALTOR prior to Termination Date.”
Roth Realty did not provide the name of the one party to whom the property had been shown and Nguyen ultimately sold the property to that party. Naturally, Roth Realty, Inc., sued.
Nguyen moved to dismiss the complaint because it failed to allege compliance with the condition precedent contained in the contract. The motion was heard just before commencement of the trial and it was denied. The issue was renewed to no avail by Nguyen after Roth Realty, Inc. rested .its ease and again by post trial motion.
The issue on appeal is whether the complaint stated a cause of action without alleging the condition precedent.
At common law, every condition precedent had to be alleged. Trawick, Fla. Prac. and Proc., § 6-20 (1988 ed.); Carson, Florida Common Law Pleading Practice and Procedure, p. 76 (rev. ed. 1940); Crandall, Florida Common Law Practice, subsection 65 (1928); Newton Rubber Works v. Graham, 171 Mass. 352, 50 N.E. 547 (1898). Prior to the modern rules, general averment of performance of conditions precedent was allowed by statute. Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 So. 171 (1903). Florida Rule of Civil Procedure 1.120(c) now authorizes that procedure in place of the statute.
In Florida courts, a complaint must state a cause of action. Fla.R.Civ.P. 1.110(b). While federal courts are inclined to ignore proper pleading requirements, that is not so in Florida practice. Trawick, Fla.Prac. and Proc., § 7-5.1 (1988 ed.). Craftsmanship in pleadings frame the issues between the parties so they can “know what they’ve got to meet and get ready to meet it.” Massey-Ferguson, Inc. v. Santa Rosa Tractor Company, Inc., 366 So. 2d 90 (Fla. 1st DCA), cert. denied, 376 So. 2d 75 (Fla.1979). The failure to allege compliance with the condition precedent made the complaint in this case fatally defective. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So. 2d 795 (Fla. 3d DCA 1964). See Ashley v. Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985); San Marco Contracting Co. v. State Dept. of Transportation, 386 So. 2d 615 (Fla. 1st DCA 1980); Massey-Ferguson, Inc. v. Santa Rosa Tractor Company, Inc., supra; Capital Nat. Bank v. Southern Pine Isle Corp., 353 So. 2d 600 (Fla. 3d DCA 1978), cert. denied, 368 So. 2d 1363 (1979); Old Republic Ins. Co. v. Von Onweller Const. Co., 239 So. 2d 503 (Fla. 2d DCA 1970).
Both in its brief and at oral argument, appellee requested leave to amend the complaint in the event it lost this appeal. However, in this case appellee was on notice that its complaint was suspect. Instead of reevaluating its position, it chose to rely upon the ruling it urged upon the trial court. In so doing it proceeded at the clear risk that the ruling was incorrect. To reverse and allow amendment at this late stage would be to ignore the clear policy of the courts of this state which disapproves reversing a judgment and then allowing the losing party to amend to assert matters not previously raised. Such a procedure would substantially extend litigation, expand its costs, and make a mockery of the concept of finality in our system of justice. Arky, Freed, et al. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla.1988). Furthermore, it was established at trial that appellee did not comply with the condition precedent.
The judgment is reversed with directions to the trial court to enter judgment for appellant.
REVERSED.
DANIEL, C.J., and GOSHORN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kaynan Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269 (Fla. 1st DCA 2012)…aware of the defendant’s contention that the evidence of malpractice was beyond the scope of the original pleading yet the plaintiff elected to proceed to trial.1 Id. at 563. The court denied an opportunity to amend in Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5th DCA 1989), for similar reasons. The plaintiff in that case prevailed in the trial court but ignored repeated warnings that there may have been a fundamental defect in the complaint. Id. at 491-92. In Nguyen, as in Arky Freed, the plaintiff…
-
Black v. Rouse, 587 So. 2d 1359 (Fla. 4th DCA 1991)…clined to ignore proper pleading requirements, that is not so in Florida practice ... Craft-manship in pleadings frame the issues between the parties so they can “know what they’ve got to meet and get ready to meet it.” Nguyen v. Roth Realty, Inc., 550 So. 2d 490, 491 (Fla. 5th DCA 1989) (citation omit [*1362] ted). Nevertheless, we must hold that the trial court abused its discretion when it denied appellant’s motion to amend and supplement the pleadings. See Fla.R.Civ.P. 1.190(a); Griffith v. Broadview Sav…
-
Se. Land Developers, Inc. v. ALL Fla. Site & Utils., Inc., 28 So. 3d 166 (Fla. 1st DCA 2010)…ult judgment violated due process due to lack of well-pled allegations in complaint). Failure to allege that conditions precedent are met renders a complaint fatally defective in that it fails to state a cause of action. Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5th DCA 1989). However, “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Fla. R. Civ. P. 1.120(c). In the instant cas…
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
- Arky v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)
- Tillis v. The Liverpool & London & Globe Ins. Co., 46 Fla. 268 (Fla. 1903)
- Babe, Inc. v. Baby's Formula Serv., Inc., 165 So. 2d 795 (Fla. 3d DCA 1964)
- Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., Inc., 366 So. 2d 90 (Fla. 1st DCA 1979)
- SAN Marco Contracting Co. v. State, 386 So. 2d 615 (Fla. 1st DCA 1980)
- OLD Republic Ins. Co. v. VON Onweller Constr. Co., Inc., 239 So. 2d 503 (Fla. 2d DCA 1970)
- Delma Ashley v. Lawson Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985)
- Zarnowski v. State, 353 So. 2d 600 (Fla. 4th DCA 1977)
- Cap. Nat'l Bank (Peoples Downtown Nat'l Bank) v. S. Pine Isle Corp., 353 So. 2d 600 (Fla. 3d DCA 1977)