J. A. CANTOR ASSOCIATES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
SAM BRENNER, APPELLEE
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J. A. Cantor Associates appeals a jury verdict awarding salesman Sam Brenner unpaid brokerage commissions. The appellate court affirms the judgment, rejecting all five grounds for appeal including statute of limitations, jury instructions, enforceability, and sufficiency of evidence claims.
The court affirmed the judgment on all grounds, finding: (1) evidence of fraudulent misrepresentation about payment tolled the statute of limitations; (2) the jury instruction on the exact amount was proper because the commission amount was undisputed; (3) the refused instruction did not properly state the law; and (4) points four and five were refuted by the record.
[1] A statute of limitations may be tolled if a party makes fraudulent representations that mislead another into believing they will receive payment.
[2] A jury instruction is proper when the amount of a disputed claim is not contested by conflicting evidence, and the jury is told that if they find for the plaintiff, the a…
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Join FLexlaw to unlock all legal intelligence“the record shows evidence which, if believed by the jury, would support a jury finding that, within the period of time covered by the applicable statute, the appellant made fraudulent representations about the circumstances surrounding the payment of the brokerage payments, so that the appellee was misled into believing that he would receive his share of the commission”
Establishes that fraudulent misrepresentation can toll the statute of limitations even when an action is otherwise time-barred.
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Join FLexlaw to unlock all legal intelligenceSam Brenner worked as a salesman in J. A. Cantor Associates' real estate brokerage office and claimed he was owed a balance of commissions. The record…
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PER CURIAM.
The defendant, J. A. Cantor Associates, Inc., appeals from a final judgment entered upon a jury verdict awarding plaintiff-ap-pellee Sam Brenner the balance he claimed was due him as a salesman in J. A. Cantor’s real estate brokerage office.
Appellant Cantor presents five points. The first urges that the evidence reveals that the action was barred by the statute of limitations and, therefore, that the trial court erred in refusing to direct a verdict for the appellant. The second point urges that the court mistakenly instructed the jury upon plaintiff-appellee’s right to recover an exact amount if the jury found for the appellee. The third urges error upon the court’s refusal to give an instruction tendered by the appellant. The fourth point urges that the court should have entered a directed verdict for the appellant because the agreement sought to be enforced was unlawful and unenforceable. The fifth point urges that the final judgment is not supported by any reasonable view of the evidence.
We have examined the record in the light of these points and find that none of them presents reversible error. Concerning the statute of limitations, the record shows evidence1 which, if believed by the jury, would support a jury finding that, within the period of time covered by the applicable statute, the appellant made fraudulent representations about the circumstances surrounding the payment of the brokerage payments, so that the appel-lee was misled into believing that he would receive his share of the commission. Cf. the principle of law in Gerstel v. William Curry’s Sons Co., 157 Fla. 216, 25 So. 2d 560 (1946).
Appellant’s points claiming error upon the instruction given and the one refused do not present error for -the reason that the instruction given was proper inasmuch as the amount of the claimed commission was in no way contested by conflicting evidence and, therefore, the jury was properly told that if it found for the appellee, the amount would be determined by the written instrument involved. Cf. the principle of law in Community Cablecasting Corp. v. Daniels & Associates, Inc., 215 So. 2d 17, 20 (Fla. 1st DCA 1968).
Likewise, we find no error in the refusal to give the appellant’s requested instruction on which error is assigned, because the requested instruction did not properly state the law. See Wells v. State, 270 So. 2d 399, 403 (Fla. 3d DCA 1972).
Points four and five need not be discussed further inasmuch as they are clearly refuted by the record before us.
Affirmed.
. The record reveals testimony of the appellee which, if believed by the jury, would strongly indicate that the appellant’s repeated statements and representations assured the appellee he would eventually be paid the brokerage fee he claimed he was due.
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Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)…mitations.”); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3rd DCA 1979) ("There can be no doubt that one may in fact be estopped from claiming the benefit of the statute of limitations.”); J.A. Cantor Associates, Inc. v. Brenner, 363 So. 2d 204, 205 (Fla. 3rd DCA 1978) ("Concerning the statute of limitations, the record shows evidence which, if believed by the jury, would support a jury finding that ... the appellant made fraudulent representations ... so that appellee was misled.”). . Se…
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Fla. Dep't of Health & Rehabilitative Servs. v. S.A.P., 835 So. 2d 1091 (Fla. 2002)…tute of limitations.”); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3rd DCA 1979) ("There can be no doubt that one may in fact be estopped from claiming the benefit of the statute of limitations.”); J.A. Cantor Assoc. v. Brenner, 363 So. 2d 204, 205 (Fla. 3rd DCA 1978) (“Concerning the statute of limitations, the record shows evidence which, if believed by the jury, would support a jury finding that ... the appellant made fraudulent representations ... so that the appellee was misled....”)…
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Laverine Thursby and Wynell Thursby v. Reynolds Metals Co., 466 So. 2d 245 (Fla. 1st DCA 1984)…s does not say that to prevent a product from being deemed unreasonably dangerous a warning must always be given. Thus, appellant’s proposed instruction misstates the law; such an instruction must be refused. J.A. Cantor Associates, Inc. v. Brenner, 363 So. 2d 204 (Fla. 3d DCA 1978). The instruction actually given correctly informed the jury that there is a duty to warn when the hazards associated with the use of the product are not obvious, reasonably apparent, or not as well known to the user as to the manu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wells v. State, 270 So. 2d 399 (Fla. 3d DCA 1972)
- Lucille Hadley et vir v. Youngblood, 215 So. 2d 17 (Fla. 3d DCA 1968)
- Gerstel v. William Curry's Sons Co., 157 Fla. 216 (Fla. 1946)