CHARLES J. SCHMALZRIED AND ROBERT E. CALDWELL, APPELLANTS,
v.
EMERY M. FINDLEY, JR., APPELLEE
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PER CURIAM.
The summary judgment entered below is reversed because the record reflects a genuine, triable issue as to whether the plaintiff-brokers earned their commission by producing a buyer ready, willing, and able to purchase on terms acceptable to the defendant-seller, and upon which he actually and specifically agreed. Hopkins v. Gibson Furniture, Inc., 312 So. 2d 499 (Fla. 2d DCA 1975); Jerry Norris, Inc. v. Ackel, 311 So. 2d 712 (Fla. 4th DCA 1975); Cammack v. Leonhardt, 302 So. 2d 170 (Fla. 4th DCA 1974); see generally, Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
Reversed.
HUBBART, Chief Judge
(dissenting).
I must respectfully dissent. I would affirm the final summary judgment under review because, in my view, there is no genuine issue of material fact as to whether the plaintiff real estate brokers herein earned their commission by producing a buyer ready, willing, and able to purchase the subject multi-million dollar business upon terms acceptable to their client, the defendant seller. The record with unmistakable clarity shows that the defendant seller emphatically rejected the putative buyer’s offers to buy, that the said buyer’s terms were never finalized or accepted by the defendant seller, and that, at best, the parties merely engaged in lengthy negotiations which eventually broke down. The defendant seller was, accordingly, entitled to a final summary judgment in his favor. McAllister Hotel, Inc. v. Porte, 98 So. 2d 781 (Fla.1957); Wilder v. Burton, 317 So. 2d 776 (Fla. 3d DCA 1975); Zaydon v. Wilder, 305 So. 2d 81 (Fla. 3d DCA 1975), cert. dismissed, 330 So. 2d 133 (Fla.1976).
I would affirm.
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Mid-Florida Realty Assocs., Inc. v. R.F. Truesdell and the Estate of Joseph O. Young, 454 So. 2d 747 (Fla. 5th DCA 1984)…provision not prescribed by the owner, it is considered to be a counter-offer, which the owner may accept. The issue in such a case is whether the owner actually agreed to the variation and accepted the contract as presented. Schmalzried v. Findley, 394 So. 2d 436 (Fla. 3d DCA 1981); Jerry Norris, Inc. v. Ackel, 311 So. 2d 712 (Fla. 4th DCA 1975). If the owner accepts the contract, or waives his objections, the broker may recover his commission, whether the contract actually closes or not. Taylor v. Dorsey, 1…
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ERA Newman-Greenstein Real Est. Co. v. Kapelow, 521 So. 2d 315 (Fla. 3d DCA 1988)…xists as to whether the appellants procured a buyer ready, willing, and able to purchase the property as required under the oral listing agreement with Kendall Walk Townhomes, Inc., we hold that summary judgment was improper. Schmalzried v. Findley, 394 So. 2d 436 (Fla. 3d DCA), review denied, 402 So. 2d 609 (Fla.1981). Accordingly, the order granting summary judgment is affirmed in part, and reversed in part, and remanded to the trial court for proceedings consistent with our holding.…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- McALLISTER Hotel, Inc. v. Porte, 98 So. 2d 781 (Fla. 1957)
- Zaydon v. Wilder, 305 So. 2d 81 (Fla. 3d DCA 1974)
- Gordon v. State, 312 So. 2d 499 (Fla. 1st DCA 1975)
- Wilder v. Burton, 317 So. 2d 776 (Fla. 3d DCA 1975)
- Danzig v. Waller, 302 So. 2d 170 (Fla. 2d DCA 1974)
- Cammack v. Leonhardt, 302 So. 2d 170 (Fla. 4th DCA 1974)
- Crystal Lake Apts., Inc. v. Kalin, 311 So. 2d 712 (Fla. 4th DCA 1975)
- Jerry Norris, Inc. v. Ackel, 311 So. 2d 712 (Fla. 4th DCA 1975)
- Wilder v. Thomas J. Zaydon et ux., 330 So. 2d 133 (Fla. 1976)