CLAIRE WHITEHURST, APPELLANT,
v.
J. H. ERSTLING, 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.
A real estate broker appeals from dismissal of her claim for a brokerage commission on the sale of property. The trial court found the broker was not the procuring cause of the sale and that no binding contract was formed during the exclusive listing period, entitling the property owner to dismissal.
The trial court properly dismissed the broker's claim because the evidence showed the sale was not completed until after the exclusive listing agreement ended, the broker was not the procuring cause of the sale, and no executory contract of sale was made during the life of the agreement.
“Under an exclusive right to sell contract, the broker is entitled to a commission if the owner sells the property during the life of the contract. If there was an executory contract of sale during the life of the exclusive listing which was completed after that period, the broker is still entitled to a commission.”
Establishes the legal standard for broker commissions under exclusive listing agreements
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWhitehurst entered into an exclusive right to sell contract with Erstling dated March 1, 1962, providing for a commission if a purchaser was secured w…
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.
This is an appeal by the plaintiff, Claire Whitehurst, from a final judgment of dismissal, entered by the trial judge, sitting without a jury, after plaintiff had completed the presentation of her evidence. The plaintiff filed a complaint against the defendant, J. H. Erstling, for a real estate brokerage commission claimed upon the completed sale of property between the owner, J. H. Erstling and the purchaser, Louis Kirk, who was a defendant below but is not a party to this appeal.
The plaintiff contends that it was error for the trial court to dismiss her cause as the evidence shows that the purchaser was procured during the period in which she had an exclusive right to sell contract, thereby entitling her to a commission.
The contract, dated March 1, 1962, provided that a commission was to be paid if a purchaser was secured within six months by either the plaintiff or defendant or by any other person, or if the property was sold within three months from the termination of the agreement. The agreement was to continue after the six month term unless revoked in writing.
The evidence reveals that the property was conveyed by warranty deed to Louis Kirk on February 4, 1963. The defendant testified that Mr. Kirk had been his close friend for 18 years. In 1962, Mr. Kirk for financial reasons had quickly sold his house and was looking for a place to rent. Since the defendant’s house was empty, Mr. Kirk was able to move in as a lessee on or about June 12, 1962. The plaintiff testified that on March 14, 1962, the defendant notified her that he was negotiating a sale of the property with Mr. Kirk. The defendant asserted that there was no discussion concerning the purchase of the property by Mr. Kirk. On May 22, 1962, the defendant notified the plaintiff in writing that the agreement was to be revoked.
Under an exclusive right to sell contract, the broker is entitled to a commission if the owner sells the property during the life of the contract.1 If there was an executory contract of sale during the life of the exclusive listing which was completed after that period, the broker is still entitled to a commission.2 This court has stated that there may be situations in which the absence of a direct employment will not bar a broker from recovering where the broker is found to be the procuring cause of the sale.3
An order of the trial court, sitting without a jury, dismissing the plaintiff’s cause after it was determined from the plaintiff’s evidence that she has shown no right to relief should be affirmed unless clearly erroneous.4 The facts indicate that *235the sale was not completed until after the life of the contract and that the plaintiff was not the procuring cause of the sale. Further, we have determined that it was not clearly erroneous for the trial court to conclude that there was no executory contract of sale made during the life of the agreement.
Therefore, it is our opinion that the trial court did not err in finding that the plaintiff failed to sustain her burden of proof that she is entitled to a commission and in dismissing the cause.
Accordingly, the judgment appealed is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Eliahu Ben-Shmuel and Lior Ben-Shmuel v. Wimbish-Riteway, Inc., 722 So. 2d 955 (Fla. 3d DCA 1998)…ed the property for sale to the Johnsons during the term of the agreement. Under the terms of the contract, Wimbish is entitled to the brokerage fee.2 [*957] Ben-Shmuel urges that a commission should be denied on authority of Whitehurst v. Erstling, 184 So. 2d 233 (Fla. 3d DCA 1966). That ease has no application here. “[T]he broker’s right to a commission is controlled, in the final analysis, by the provisions of the employment contract with the principal.” 15 Richard R. Powell, Powell on Real Property § 84C…
-
First Fla. Realty & Auction Co., Inc. v. Peacock, 703 So. 2d 1199 (Fla. 1st DCA 1997)…ed outside the confines of an exclusive right of sale contract when it is clear that the broker was the “procuring cause” of the sale. See Sanson v. Dutcher, Higginbotham & Bass, Inc., 401 So. 2d 913, 915 (Fla. 4th DCA 1981); Whitehurst v. Erstling, 184 So. 2d 233, 234 (Fla. 3d DCA 1966). It is error to deny a broker a commission on a sale contract during the contract period of an exclusive right of sale agreement'simply because the facts might indicate that the broker had not been the “procuring cause” of th…
-
Mark Realty, Inc. v. Tilman A. Rogness, 418 So. 2d 373 (Fla. 5th DCA 1982)…ell). . See, e.g., Law Realty, Inc. v. Pagliarulo, 385 So. 2d 1093 (Fla. 4th DCA 1980); Community Cable Casting Corp. v. Daniels & Associates, Inc., 215 So. 2d 17 (Fla. 1st DCA 1968), cert. denied, 225 So. 2d 533 (Fla.1969); Whitehurst v. Erstling, 184 So. 2d 233 (Fla.3d DCA 1966); Rubin v. Beville, 132 So. 2d 783 (Fla. 1st DCA 1961). . A clause identical to the clause in the instant case was construed as granting an exclusive right to sell in Rubin v. Beville, 132 So. 2d 783, 785 (Fla. 1st DCA 1961) (“The…1 / 2
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
- Nat'l Airlines, Inc. v. Oscar E. Dooly Assocs., Inc., 160 So. 2d 53 (Fla. 3d DCA 1964)
- Flynn v. McGinty, 61 So.2d 318 (Fla. 1952)
- Tampa Wholesale Co. v. Foodtown, 166 So. 2d 711 (Fla. 2d DCA 1964)
- Alex D. Smith Real Est., Inc. v. Gables Venetian Waterways, Inc., 98 So. 2d 372 (Fla. 3d DCA 1957)