HAIM TURGMAN, APPELLANT,
v.
MM WORLD ENTERTAINMENT, LLC, ET AL., APPELLEES
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A real estate broker sued a seller for an unpaid commission after a sale failed to close. The trial court granted summary judgment for the broker, but the appellate court reversed, holding that the commission agreement was ambiguous as to whether the broker earned commission upon executing a purchase contract or only upon actual closing.
The court reversed the summary judgment, holding that the commission agreement was at least ambiguous as to whether 'transaction' referred to actual closing or merely the contract for purchase and sale. The court concluded that if the agreement is ambiguous, extrinsic testimony regarding the parties' intent is admissible, and factual conflicts must be resolved by the jury. Alternatively, the contract should be construed against the drafter (the broker), which would support the seller's interpretation that actual closing was required.
[1] A commission agreement provision stating that a broker is entitled to a commission "in case of transaction will be realized" is ambiguous and may require extrinsic eviden…
[2] When a contract provision is ambiguous, extrinsic evidence of the parties' intent may be admitted to resolve the ambiguity.
Previewing 2 of 6 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 least, the emphasized condition was ambiguous and thus permitted the admission of extrinsic testimony of the parties' intent as to whether it referred to an actual closing, as indicated in the seller's affidavit that the broker specifically told him was the case, or, as the broker, supported by no evidentiary showing argued below and as the trial court ruled, that it meant only the contract for purchase and sale.”
Establishes that the commission agreement is ambiguous and allows for extrinsic evidence regarding the parties' intent
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Join FLexlaw to unlock all legal intelligenceTurgman (seller) and MM World Entertainment (broker) entered into a commission agreement stating the broker would receive 4% commission 'in case of tr…
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This is an appeal by the seller from an adverse summary judgment in favor of a real estate broker in an action for a commission which was deemed earned as a matter of law notwithstanding that (1) the deal did not close and (2) the commission agreement — prepared by the broker himself — provided that
[i]n case of transaction will be realized between Prospective Seller and Prospective Purchaser, Agent will be entitled and shall receive a commission of 4% from the total amount of the Purchase Agreement by the Prospective Seller.
(emphasis added). We reverse.
At least, the emphasized condition was ambiguous and thus permitted the admission of extrinsic testimony of the parties’ intent as to whether it referred to an actual closing, as indicated in the seller’s affidavit that the broker specifically told him was the case,1 or, as the broker, supported by no evidentiary showing argued below and as the trial court ruled, that it *105meant only the contract for purchase and sale.2,3 See Land O’Sun Realty Ltd. v. REWJB Gas Investments, 685 So.2d 870, 872 (Fla. 3d DCA 1996) (“Our system entrusts the resolution of factual conflicts ..., including those involving the terms and operation of written contracts, to the jury.”), review dismissed, 710 So.2d 978 (Fla.1998). At most, properly read against the drafter, the “transaction” referred to a closing as a matter of law. See id. at 872 n. 8 (“Contract interpretation is for the court as a matter of law, rather than the trier of fact, only when the agreement is totally unambiguous, or when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties’ intentions is undisputed or non-existent.”).
In either event, the summary judgment for the broker cannot stand and the judgment is therefore reversed and remanded for further proceedings.4
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- MacGregor v. Hosack, 58 So. 2d 513 (Fla. 1952)
- Tucker v. Augusta M. Bessee, 95 So. 2d 420 (Fla. 1957)
- Harding Realty, Inc. v. Turnberry Towers Corp., 436 So. 2d 983 (Fla. 3d DCA 1983)
- Land O'Sun Realty Ltd. v. Rewjb GAS Invs., 685 So. 2d 870 (Fla. 3d DCA 1996)
- Acheson v. Smith's, Inc., 110 Fla. 240 (Fla. 1933)
- Schumacher v. Wellman, 415 So. 2d 120 (Fla. 4th DCA 1982)
- Lennar Fla. P'rs I, L.P. v. Rewjb GAS Invs., 710 So. 2d 978 (Fla. 1998)
- The Hagans Co. & Ralph A. Hagans v. Manla, 534 So. 2d 750 (Fla. 3d DCA 1988)
- Lehr v. Baron's OF Surfside, Inc., 550 So. 2d 74 (Fla. 3d DCA 1989)