W. GEORGE KENNEDY ET AL., APPELLANTS,
v.
GEORGE CULLY REAL ESTATE, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1974-04-16
No. 73-215
Before HENDRY and HAVERFIELD, JJ., and RICHARDSON, GEORGE, Jr., Associate Judge.
296 So. 2d 551 Florida District Court of Appeal, Third District (1974) Positive Treatment
Cited by 6 cases

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Synopsis

A real estate broker sued defendants for tortious interference with its business relationship with a property seller after the broker introduced a potential purchaser who later lost interest, but the property was subsequently purchased by the defendants through an undisclosed transaction. The court affirmed the tort liability but reversed and remanded the damages award of $135,000, finding insufficient evidence of the agreed commission rate.


Holding

The court held that defendants intentionally and without justification interfered with plaintiff's business relationship, thus tortious interference liability was properly established. However, the court reversed the $135,000 damages award because there was insufficient evidence that the Davis Estate had agreed to pay Cully a 10% commission; damages must be remanded for determination based on evidence of customary commission rates for comparable sales.


Headnotes

[1] A real estate broker must establish an advantageous business relationship with a vendor to recover damages for tortious interference with that relationship.

[2] An implied contract for a broker's services can arise when a vendor knows or has reasonable grounds to believe the services are rendered with the expectation of payment.

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Key Quotes

“In an action by a real estate broker for damages for tortious interference with a contractual relationship existing between himself and the vendor, the broker must first establish an advantageous relationship.”

Establishes the elements required for tortious interference claim by a broker

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Facts & Procedural History

Real estate broker Cully arranged a meeting between potential purchaser Rizzo and the Davis Estate regarding South Dade County property. Cully provide…

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Opinion of the Court
HAVERFIELD, Judge.

HAVERFIELD, Judge.

Defendant-appellants appeal a judgment for the sum of $135,000 entered in favor of the plaintiff as damages for tortious interference with a business relationship.

Peter J. Ferguson, a licensed real estate broker who had known defendant Salvatore Rizzo for several years, learned that Rizzo was interested in the purchasing of property located in South Dade County, Florida. Ferguson then contacted plaintiff’s president, George Cully, and subsequently arranged a meeting between Mr. Cully and Rizzo at which was discussed the purchase of certain property located in Naranja (South Dade) and owned by the Arthur Vining Davis Estate. At this meeting Cully provided Rizzo with aerial surveys and feasibility studies on the subject property, and the purchase price thereof was a topic of discussion. Rizzo expressed his interest therein, retained the surveys and studies, and requested time to have the value of the property investigated. Being a potential purchaser, Mr. Riz-zo’s name was submitted by Mr. Cully to Malcolm McNaughton, president of the A.

V. Davis Company, who was responsible for securing offers from prospective purchasers of the Davis Estate property, supplying interested real estate brokers with plot plans and surveys to aid in their sales efforts, and relaying all offers and negotiations to the board of directors of the company and executors of the estate for their final determination. Cully had several meetings and/or telephone conversations with Rizzo who had requested and received from Mr. McNaughton zoning information on the Naranja property. Rizzo finally told Ferguson he was no longer interested in the property and returned to him the photographs, maps, surveys, etc. Several months later defendant George Kennedy, a business associate of Rizzo, entered into a contract of purchase of the subject property with the Davis Estate for the sum of $1,350,000. Title to the property was taken in the name of the K & R Sod Company, 50% of which was owned by Rizzo and 50% by Kennedy. Plaintiff Cully Real Estate, Inc. filed an amended complaint against the Davis Estate to recover a commission and included therein a count against Rizzo, Kennedy and the K & R Sod Company for tortious interference with its business relationship with the Davis Estate. The cause was tried non-jury, at the conclusion of which the trial judge entered a judgment (pursuant to a directed verdict) in favor of the Davis Estate on the commission issue and in addition entered judgment against the defendants Riz-zo, Kennedy, and K & R Sod Company for their tortious interference with the above business relationship in the sum of $135,000 which represented an amount equal to a 10% commission on the sale of the property which Cully would have received had he not been prevented from consummating the sale thereof with Rizzo.

Defendant-appellants contend that the evidence is insufficient to sustain the judgment entered against them for tortious interference with a business relationship.

In an action by a real estate broker for damages for tortious interference with a contractual relationship existing between himself and the vendor, the broker must first establish an advantageous relationship. Retzky v. J. A. Cantor Associates, Inc., Fla.App. 1966, 192 So. 2d 24, cert. denied, Fla., 201 So. 2d 232 (1967).

The record reflects that as Cully had done in the case sub judice, it was customary for brokers to submit the names of potential purchasers of Davis Estate properties to Mr. McNaughton who supplied the, brokers with plot plans and surveys to aid in their sales efforts. Despite the fact that Cully had no listing on the property involved, under the above method by which the Davis Estate sold its properties, a contract for Cully’s services can be implied as the vendor knew or had reasonable grounds to believe that these services were rendered with the expectation of receiving payment therefor and thus plaintiff-appel-lee established a business relationship with the seller. See City Builders’ Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77 (1925).

Having established this relationship, appellee was required to show that defendants wrongfully interfered with it and injury resulted thereby. Retzky, supra.

It is undisputed that Cully was the person who first informed defendant Rizzo about the property and supplied him with surveys and studies. Rizzo expressed his interest and even personally contacted McNaughton with regards to the zoning applicable to the subject property. After several additional meetings and discussions with Cully about the property, Rizzo informed Cully that he was no longer interested.

Nevertheless, several months thereafter, George Kennedy, an individual with whom Rizzo had been involved in land companies in the past, entered into a contract of purchase of the subject property and title thereto was taken in the name of K & R Sod Company, owned by Rizzo and Kennedy, who warranted that no broker was involved. The foregoing evidence is sufficient to justify a finding that the defendants intentionally and without justification interfered with plaintiff’s business relationship.

Thus, this contention of appellants must fail.

Defendant-appellants secondly argue that the evidence does not support an award of 10% of the sales price of the property, to wit: $135,000, as the damages that should be awarded to the plaintiff. We find merit in this contention.

The plaintiff-appellee being the procuring cause of the sale, the resulting injury of defendants’ acts is in the amount of a reasonable commission. Retzky, supra. The amount payable under the circumstances in the case sub judice is to be determined according to the custom or usage locally prevailing as to the amount payable for like work to the particular class of brokers in question. Blackburn v. Alachua County Broadcasting Company, Fla.App.1961, 126 So. 2d 303. An examination of the record reveals that the broker’s commission was negotiated always by the Davis Estate and the broker, and there was insufficient evidence contained therein to support plaintiff’s allegation that the Davis Estate had agreed to pay Cully a 10% commission if he effected a sale.

Thus, we reverse the award of $135,000 and remand with directions to hold a new evidentiary hearing on the issue of damages at which time it will be incumbent upon plaintiff to prove the amount of his damages through competent testimony as to what a broker would receive normally on a sale comparable to the sale involved in the instant case and in addition, what amount of commission the Davis Estate has paid in the past on comparable land sales.

Affirmed in part, reversed in part and remanded with directions.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kennedy v. George Cully Real Est., Inc., 336 So. 2d 484 (Fla. 3d DCA 1976)
    …PER CURIAM. The defendants appeal from a final judgment entered by the trial court after a retrial of the issue of damages upon remand of this cause. See Kennedy v. George Cully Real Estate, Inc., Fla.App.1974, 296 So. 2d 551. Four points are urged. The first two points claim the court failed to follow the directions of this court on remand, and the third and fourth points claim the court improperly assessed the amount of damages under the rules applicable to the cause.…
  • George Cully Real Est., Inc. v. Kennedy, 308 So. 2d 111 (Fla. 1975)
    …Certiorari denied. 296 So. 2d 551. ADKINS, C. J., and ROBERTS, ERVIN, McCAIN and OVERTON, JJ., concur.…
  • Kennedy v. George Cully Real Est., Inc., 307 So. 2d 183 (Fla. 1975)
    …Certiorari denied. 296 So. 2d 551. ADKINS, C. J., and ROBERTS, ERVIN, McCAIN and OVERTON, JJ., concur.…

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