EDWARD A. OSHER, APPELLANT,
v.
QUINCY P. CARVEL, APPELLEE
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A real estate agent sued to recover commission allegedly owed under an oral listing agreement. The trial court granted summary judgment to the defendant-property owner based on an inapplicable precedent, but the appellate court reversed, finding that factual disputes remained regarding whether a valid agency relationship existed that would allow recovery despite the property being held as an estate by the entirety.
Summary judgment was improper because the trial court relied on an inapplicable precedent that merely required proof of the cause of action, and the record did not establish as a matter of law that defendant was entitled to judgment. The case was reversed and remanded to allow the plaintiff an opportunity to prove his claim under alternative theories such as agency.
“The theory of the plaintiff's case was that while the property was an estate by the entireties, Mrs. Mister had impliedly made Mr. Mister her agent for the purpose of the listing contract.”
Describes the alternative agency theory that might support recovery despite the property being held as an estate by the entirety.
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Join FLexlaw to unlock all legal intelligencePlaintiff, a real estate agent, filed suit against defendant seeking recovery of amounts allegedly due under an oral real estate listing agreement. De…
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Appellant, plaintiff below, filed suit against appellee-defendant seeking to recover amounts allegedly due under an oral real estate listing agreement. Defendant moved for summary judgment, the motion being accompanied by supporting affidavits showing, among other things, that the property which was the subject of the purported contract was owned by defendant and his wife as an estate by the entirety and that the contract, if in fact one existed, was with the defendant only. Plaintiff filed counter-affidavits. The trial judge granted summary judgment in favor of the defendant and plaintiff appeals.
The order granting summary judgment recites that the same was granted, “* * * upon the authority of Mister v. Thompson, (1959 Fla.App.) 114 So.2d 507. * * * ” Mister v. Thompson, supra, relied upon by the trial judge, was a case wherein an alleged listing contract was given by only one spouse, but the property was held as a tenancy by the entirety. After trial without jury, the court entered judgment for the plaintiff, awarding him the commission he sought to collect. In reversing, the Florida District Court of Appeal, Second District, said:
“The theory of the plaintiff’s case was that while the property was an estate by the entireties, Mrs. Mister had impliedly made Mr. Mister her agent for the purpose of the listing contract. The premises was an estate by the entireties, nothing was signed by either party, and the evidence does not either directly or indirectly support this theory, nor has the plaintiff cited any authorities to support his theory under the circumstances of this case.”
However, we think that the Mister case stands only for the proposition that a plaintiff who fails to prove his cause of action can not recover. The court in Mister states that plaintiff has not supported his theory of action, i. e. agency, by evidence. This is not to say that there is no other theory upon which recovery might be had, nor indeed does it preclude the supposition that the plaintiff might have won upon *754the theory he used had he offered sufficient evidence. The Mister case is, therefore, inapposite to the cause here before us.
Thus, having precluded reliance upon the Mister case, we are unable to say on the basis of the record before us that the defendant was entitled to summary judgment as a matter of law upon the principles expressed in Visingardi v. Tirone, Fla. 1966, 193 So.2d 601, and Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780. Accordingly, we reverse and remand the cause to the circuit court for further proceedings.
Reversed and remanded.
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Citator
Cited By
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Herold v. Computer Components Int'l, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971)…ired the trial court to try and weigh the facts which determination ought not be made in summary judgment proceedings. American Ladder & Scaffold Co. v. Miami Vent. Awn. Mfg. Co., Fla.App.1964, 161 So. 2d 699; see also Osher v. Carvel, Fla.App.1967, 201 So. 2d 753; Rand Broadcasting of Tampa-St. Petersburg, Inc. v. Packwood, Fla.App. [*582] 1965, 181 So. 2d 350. See also Industrial Sales & Service Corp. v. Duval Motors, Fla.App.1971, 245 So. 2d 891. Reversed. WALDEN and MAGER, JJ., concur. MELVIN, WOODROW…
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Carvel v. Osher, 207 So. 2d 452 (Fla. 1967)…Certiorari denied without opinion. 201 So. 2d 753.…
Authorities Cited
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Hilton A. Mister and Elsie H. Mister v. Thompson, 114 So. 2d 507 (Fla. 2d DCA 1959)