WOLFGANG VON DUNSER, APPELLANT,
v.
EDWIN M. CARTER ET AL., APPELLEES
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Wolfgang Von Dunser appealed the dismissal of his action for a finder's fee against the Carter group. The trial court dismissed with prejudice, finding Von Dunser violated Florida's real estate broker licensing requirements. The appellate court affirmed the dismissal but reversed the prejudice ruling, allowing Von Dunser to amend his complaint to argue he was selling his own property, which is exempt from broker licensing requirements.
The trial court correctly dismissed the cause based on the pleadings presented, but the dismissal should have been without prejudice to allow Von Dunser to amend his complaint. Von Dunser may argue that he was selling his own property (exempt from broker licensing) rather than acting as a broker, which would fall within the exception under § 475.01, Fla.Stat.
[1] A finder's fee agreement is unenforceable if it violates state real estate licensing statutes.
[2] A party seeking a commission for the sale of real property must be a registered real estate broker or agent.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the plaintiff has not complied with Chapter 475 of the Florida Statutes in that he is not a registered real estate broker”
The trial court's stated reason for dismissing the complaint with prejudice
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Join FLexlaw to unlock all legal intelligenceIn May 1973, Von Dunser owned the Double D Ranch and entered into a contract to sell it to the Carter group. In June 1973, the Carter group orally agr…
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NATHAN, Judge.
This is an appeal by Wolfgang Von Dunser, plaintiff in the trial court, from an order granting motion to dismiss with prejudice, and final judgment in favor of the defendants, Edwin M. Carter, Richard La Conte, Lewis Busier, and Cassius B. Sisler, individually and as joint venturers, in an action for a finder’s fee.
In May of 1973, plaintiff Von Dunser, the owner of the Double D Ranch, a parcel of real property located in DeSoto County, Florida, entered into a contract to sell the ranch to the Carter group, the defendants herein. In June of 1973, the Carter group orally agreed to pay Von Dunser a finder’s fee for procuring a buyer for the Carter group’s contract for sale of the Double D. Ranch. After expending time and effort in attempting to find a purchaser for the defendants’ contract, Von Dunser did obtain a purchaser, General Development Corporation, and the contract was sold. Upon closing the transaction, Von Dunser made a demand upon the Carter group for payment of the finder’s fee, pursuant to the agreement. The defendants failed to pay and Von Dunser commenced this action.
The defendants filed a motion to dismiss on the grounds that Von Dunser is not entitled to receive a commission on the sale since he was neither a registered real estate agent nor broker. Von Dunser stipulated that he was not a registered real estate agent or broker and the court entered an order dismissing the complaint with prejudice because “ . . . the plaintiff has not complied with Chapter 475 of the Florida Statutes in that he is not a registered real estate broker.”
On appeal, Von Dunser argues that the defendants, unable to go through with the initial contract, were about to default under its terms. In order to prevent such default and loss of the defendants’ deposit, under the terms of the contract, Von Dun-ser undertook to sell his property by virtue of assignment of the contract to General Development Corporation, the newly obtained purchaser. Thus, he contends, he was selling his property, rather than the contract, and one need not be a broker to sell his own property under the exception set out in § 475.01, Fla.Stat. We note that this was not alleged in Von Dunser’s complaint, and that the original contract does not appear in the record on appeal. While the trial court was eminently correct in dismissing the cause based on the pleadings before it, in our opinion such dismissal should have been without prejudice to permit Von Dunser to amend his complaint should he so desire, and final judgment should not have been entered.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with this opinion.
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Morrell v. Chadick, 965 So. 2d 1277 (Fla. 2d DCA 2007)…gs, but amendment to state a new cause of action at trial should not be allowed over objection). Dismissal of the petition without prejudice for Ms. Chadick to refile or amend her petition was the appropriate remedy. See, e.g., Von Dunser v. Carter, 334 So. 2d 95, 96 (Fla. 3d DCA 1976) (holding that where complaint was deficient, it should have been dismissed without prejudice to allow plaintiff an opportunity to amend the complaint if he so desired). Therefore, based on the record on appeal, there was insuf…