FRANK ALTER, APPELLANT,
v.
JOHN ADAMS, APPELLEE
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Alter and Adams were co-operating real estate brokers in a land sale. Adams sued Alter for fraud, alleging Alter misrepresented the total commission as $9,900 when Alter actually received $45,000, and the jury awarded Adams $20,100. The appellate court affirmed, holding that the verdict was supported by evidence and the pretrial conference minutes were effectively amended by the parties' trial conduct.
The court held that the pretrial conference minutes were effectively amended by the parties' conduct at trial, allowing a verdict for less than the $45,000 outlined at the pretrial conference, and that fraud was adequately proved because Alter controlled the sale, the transaction was not at arm's length, and both parties had duties of honesty and fair dealing as real estate brokers.
“such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice”
Establishes that pretrial orders control unless modified at trial, and the court found such modification occurred through the parties' conduct
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Join FLexlaw to unlock all legal intelligenceAlter and Adams were cooperating real estate brokers in the sale of an extensive tract of land. After the deal closed, Adams alleged that Alter had mi…
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The appellant, Alter, and the appellee, Adams, were co-operating real estate brokers in the sale of an extensive tract of land. After the deal was closed, the ap-pellee, Adams, sued Alter alleging that he was entitled to a larger portion of the commission than he had received. It was alleged that the appellee had accepted a $9,-900 commission upon the representation of Alter that this was the total commission when, in fact, the commission paid to Alter was $45,000. The jury returned a verdict for the appellee in the amount of $20,100. This appeal is from the judgment. We affirm.
*491Appellant presents two points. The first urges that a new trial should have been granted because the verdict was in violation of the issues outlined at the pretrial conference. Rule 1.16, Florida Rules of Civil Procedure, 30 F.S.A., provides in part as follows: “The court shall make an order reciting the action taken at the conference * * * and such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice”. The record presented to us does not contain a pretrial order. The minutes of the pretrial conference would, however, seem to support appellant’s position that the court outlined the issue of the amount of a possible recovery, to be $45,000 or nothing. Nevertheless, evidence was introduced without objection at the trial upon which a possible recovery in a lesser amount could be based. The defendant cross-examined the plaintiff extensively on the point. The court instructed upon the theory of a recovery for a part of the total commission. Under these circumstances, minutes of the pretrial conference must be considered to have been amended to allow a verdict for less than $45,000.
Appellant’s second point urges that fraud, which was the basis for the action, was not proved because the appellee failed to make an investigation. See Kaminsky v. Wye, Fla.App.1961, 132 So.2d 44. A review of the record reveals that there was evidence upon which the jury could find that appellant, Alter, was in control of the sale and that the agreement between Alter and Adams was not an arms-length transaction. The appellant and ap-pellee were real estate brokers, each charged with a duty of honesty and fair dealing; therefore, this case is governed by the principles set forth in Board of Public Instruction of Dade County v. Everett W. Martin & Son, Fla.1957, 97 So.2d 21; Alepgo Corp. v. Pozin, Fla.App.1959, 114 So.2d 645.
Affirmed.
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Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA 1987)…(emphasis added) (quoting Robert’s Fish Farm v. Spencer, 153 So. 2d 718 (Fla.1963)). Futch’s conduct towards Head was improper given the duty of honesty and fair dealings which brokers are to abide by in dealing with one another. See Alter v. Adams, 185 So. 2d 490 (Fla. 3d DCA 1966) (acknowledging that brokers co [*323] operating in sale of tract of land are charged with duty of honesty and fair dealing). Futch never attempts to refute Head’s allegations that the two corporations of which she was the sole st…
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J. A. Cantor & Assocs., Inc. v. Devore, 281 So. 2d 245 (Fla. 3d DCA 1973)…verdict for the defendant. We affirm. It has long been established in the law of this State that brokers may divide commissions. Giles v. Wilmott, 59 Fla. 271, 52 So. 287; Carlile v. Spofford, Fla.1954, 69 So. 2d 318; Alter v. Adams, Fla.App.1966, 185 So. 2d 490; 5 Fla.Jur., Brokers, § 39. It has also been established that such an agreement may be an oral one. Bush v. Mattingly, 62 Ariz. 483, 158 P. 2d 665; Thompson v. Carey’s Real Estate, 335 Mich. 474, 56 N.W. 2d 255; Reasoner v. Yates, 90 Neb. 757, 134 N…
Authorities Cited
- Alepgo Corp. v. Pozin, 114 So. 2d 645 (Fla. 3d DCA 1959)
- The Bd. OF Pub. Instruction OF Dade Cnty. v. Everett W. Martin & SON, Inc., 97 So. 2d 21 (Fla. 1957)
- Art Present v. Klubeck, 132 So. 2d 44 (Fla. 3d DCA 1961)
- George v. Kaminsky, 132 So. 2d 44 (Fla. 2d DCA 1961)