GE REAL ESTATE SERVICES, INC., ETC.

v.

MANDICH REAL ESTATE ADVISORS, INC.,

Third District Court of Appeal State of Florida Opinion filed December 29, 2021. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D21-125 Lower Tribunal No. 19-13301 ________________ GE Real Estate Services, Inc., d/b/a Keller Williams Realty Premier Properties, Appellant, vs. Mandich Real Estate Advisors, Inc., Appellee. An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. Douglas H. Stein, P.A., and Douglas H. Stein, for appellant. Haber Law, P.A., and David B. Haber and Ariella Gutman, for appellee. Before LOGUE, HENDON, and LOBREE, JJ.

HENDON, J.

GE Real Estate Services, Inc., d/b/a Keller Williams Realty Premier Properties (“KW”) appeals from the trial court’s dismissal with prejudice of its second amended complaint against Mandich Real Estate Advisors, Inc. (“Mandich”). We affirm. Facts Fred Afif (“Afif”) and Louis Erice (“Erice”) are licensed real estate agents who were employed by KW. George Smith (“Smith”) is a Florida licensed real estate broker, formerly affiliated with Miami New Realty (“MNR”) and Multifamily Real Estate Group, Inc. (“MREG”). In January 2017, Afif, Erice, and Smith entered into a Commission and Non- Circumvent Agreement (“Commission Agreement”) whereby Afif and Erice would procure purchasers of hotel properties, Smith would procure sellers of hotel properties, and they would split the real estate commissions. The Commission Agreement contained a “non-circumvent” provision that provided that neither KW nor Smith on their own could enter into sales agreements and cut the other out of the commission.¹ Co. v. Alonzo-Pombo, 307 So. 3d 840, 842 (Fla. 3d DCA 2020) (holding a dismissal for failure to state a cause of action is reviewed de novo); United Auto. Ins. Co. v. Law Offices of Michal I. Libman, 46 So. 3d 1101, 1103 (Fla. 3d DCA 2010) (holding a motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts). In this instance, the trial court correctly concluded that further opportunities to amend the complaint would be futile. See Broz v. R.E. Reece, 272 So. 3d 512 (Fla. 3d DCA 2019). A claim for tortious interference with the Commission Agreement required KW to set forth four elements in its complaint against Mandich: 1) the existence of a business relationship between KW and a third person, in this case, Smith, under which KW has legal rights, 2) Mandich’s knowledge of the relationship, 3) Mandich’s intentional and unjustified interference with the relationship that induced or otherwise caused Smith not to perform his obligation under the Commission Agreement with KW, and 4) damage to KW resulting from Smith’s failure to perform. See DNA Sports Performance Lab, Inc. v. Club Atlantis Condo. Ass'n, 219 So. 3d 107, 110 (Fla. 3d DCA 2017). KW was unable, despite a number of opportunities to amend its complaint, to plead facts that would show Mandich intentionally and unjustifiably interfered with the Commission Agreement resulting in damage to KW, i.e., KW’s exclusion from the Broker’s Fee Agreement executed by Smith and the Buyers, to which agreement Mandich was not a party. Further, the Commission Agreement was executed prior to Mandich’s existence as a commercial entity and under Florida law, contracts entered into by a real estate agent on behalf of a former do not automatically transfer to, or impute knowledge of prior agreements to, a new brokerage company simply because the agent joined the new brokerage company.2 See Marks v. M.S.F. Mgmt. Corp., 540 So. 2d 138, 140 (Fla. 5th DCA 1989) (holding the new broker never acquired any interest in the commission agreement because it was not the employing broker when plaintiff’s services were performed). The usual rule provides that a contract cannot bind one who is not a party to it or has not in some way agreed to accept its terms. To create a valid contract there must be reciprocal assent to a certain and definite proposition. CH2M Hill Se., Inc. v. Pinellas Cnty, 598 So. 2d 85, 89 (Fla. 2d DCA 1992) (citing In re Estate of Donner, 364 2 Real estate salesmen are prohibited from operating without brokers; commission agreements made by salesmen are enforceable by the broker who is their employer at the time the services entitling the salesman to compensation are rendered. Marks, 540 So. 2d at 140 (citations omitted).

8 So. 2d 742 (Fla. 3d DCA 1978)). The trial court repeatedly charged KW with amending its complaint to allege some direct knowledge and purposeful interference by Mandich, and KW was unable to do so, thereby failing to fulfill elements of the cause of action for intentional interference. KW’s claim against Mandich for civil conspiracy similarly fails. KW alleges that Mandich knew of the prior Commission Agreement between Afif and Erice (working for KW) and Smith (working with MNR/MREG) and intentionally conspired with Smith and the Buyers to circumvent the Commission Agreement by agreeing with Smith to execute the Broker’s Fee Agreement with the Buyer, and by passively accepting the contractually agreed finder’s fee from the Buyer once the Sands Harbor sale closed. KW alleges it is entitled to payment of its share of the finder’s fee for the Sands Harbor purchase by virtue of its rights under the prior Commission Agreement for the River Park Hotel, which sale never closed. We disagree. In Florida, “[a] civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA