FUTURA REALTY, INC., APPELLANT,
v.
NORMAN J. KASSER, APPELLEE
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Futura Realty appeals a directed verdict dismissing its claim for a real estate brokerage commission. The trial court found that Futura Realty failed to establish entitlement to a commission as a matter of law because the purchasing group lacked proven financial ability and the seller was not at fault for the transaction's failure.
Futura Realty failed to establish a jury-submissible prima facie case for commission entitlement. A directed verdict was appropriate because the record did not prove the broker's entitlement to a commission, particularly given the absence of evidence of the purchaser's financial ability and Futura Realty's agreement that no commission would be due if closing did not occur.
[1] A directed verdict is appropriate where the record fails to establish a broker's entitlement to a commission.
[2] In an action for a broker's commission, a jury submissible prima facie case must be proven to avoid judgment as a matter of law.
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Join FLexlaw to unlock all legal intelligence“In an action for a broker's commission, where the record on appeal, properly viewed, fails to prove a jury submissible prima facie case, the defendant is entitled to judgment as a matter of law.”
Establishes the legal standard for directed verdict in broker commission cases
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Join FLexlaw to unlock all legal intelligenceFutura Realty alleged it was hired by Norman J. Kasser and Claire Kasser to find a purchaser for their land on specific terms. Futura Realty claimed i…
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PER CURIAM.
Futura Realty, Inc., plaintiff in the trial court, appeals from a final judgment for the defendant, Norman J. Kasser, in an action to collect a real estate brokerage commission.
Futura Realty, Inc., filed a complaint in Dade County Circuit Court, alleging that Norman J. Kasser and Claire Kasser requested that Futura Realty obtained a purchaser, ready, willing and able to purchase on specific terms and conditions a certain tract of land located in Dade County, Florida, owned by the Kassers; that Futura Realty obtained a purchaser, ready, willing and able to purchase on the exact terms requested; that the Kassers refused to sell and refused to pay the brokerage fee.1 A jury trial was held. At the close of the plaintiff’s case, the trial court granted defendant Norman J. Kasser’s motion for a directed verdict on the basis that Futura Realty failed to establish, as a matter of law, entitlement to a commission.
The trial court had determined that there was an absence of evidence that the purchasing group was financially able to purchase on the required terms, and that failure to consummate the sale was not the fault of the seller, Norman J. Kasser. Fu-tura Realty takes this appeal from the final judgment entered on the directed verdict in favor of the defendant. We agree with the trial court and affirm the final judgment. It is clear from the record that numerous contracts were drafted pursuant to this transaction; that failure to consummate the transaction was not due to any fault on the seller’s part and that all parties knew that the seller would be unable to produce trailer-park zoning at the date of closing.
The record further shows that even if the latest oral contract is construed in favor of the broker, it would still not be entitled to a commission because Futura Realty agreed that if the closing did not take place, there would be no broker’s commission. In an action for a broker’s commission, where the record on appeal, properly viewed, fails to prove a jury submissible prima facie case, the defendant is entitled to judgment as a matter of law. Scott v. Downey, Fla.App.1975, 314 So. 2d 16. A directed verdict is appropriate where the record fails to establish the broker’s entitlement to a commission. See Hodges v. Altobello, Fla.App.1973, 274 So. 2d 892.
Affirmed.
. The trial court subsequently granted a motion for summary judgment on behalf of Claire Kasser since she was neither an owner of the property nor did she participate in this or any other real estate transaction with Futura Realty,
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Texaco Boca DEL MAR, Inc. v. Sentinel Dev. Corp., 402 So. 2d 576 (Fla. 4th DCA 1981)…of purchase is based upon a contingency of rezoning, such a buyer is not a ready, willing, and able one. When the seller opts to reject such an offer, he is relieved of the liability to pay a brokerage commission. See, Futura Realty, Inc. v. Kasser, 325 So. 2d 71 (Fla. 3rd DCA 1976); Wilder v. Burton, 317 So. 2d 776 (Fla. 3rd DCA 1975). Sentinel’s response to appellant’s listing offer constituted a counter-offer. Clearly, Sentinel did not accept the appellant’s initial offer in toto. Moreover, there were ma…
Authorities Cited
- Scott v. Downey, 314 So. 2d 16 (Fla. 4th DCA 1975)
- Hodges v. Altobello, 274 So. 2d 892 (Fla. 4th DCA 1973)