Alaqua Lakes Realty, Inc. v. Burch

790 So. 2d 604, 2001 Fla. App. LEXIS 10965, 2001 WL 874222
CourtDistrict Court of Appeal of Florida
DecidedAugust 3, 2001
DocketNo. 5D00-1280
StatusPublished

This text of 790 So. 2d 604 (Alaqua Lakes Realty, Inc. v. Burch) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alaqua Lakes Realty, Inc. v. Burch, 790 So. 2d 604, 2001 Fla. App. LEXIS 10965, 2001 WL 874222 (Fla. Ct. App. 2001).

Opinion

THOMPSON, C.J.

Alaqua Lakes Realty, Inc, (“Alaqua Lakes”) appeals an order granting a new trial on damages and liability upon its rejection of an additur. Appellee, Jerry E. Burch, cross-appeals the same order, contending that the court should have ordered the additur without ordering a new trial, or that it should have entered a judgment notwithstanding the verdict. He also contends that the new trial order should have been for a new trial on damages only. We affirm the order.

Burch, an independent contractor and sales representative for Alaqua Lakes, was engaged to sell lots and homes in the subdivision developed by an entity related to Alaqua Lakes. Burch himself bought a lot in the development, but sold it to a couple who signed a “prospect registration card” when they visited the project. They were drawn to the project by a billboard erected by Alaqua Lakes. Through the sale of his lot, Burch tripled his down payment investment.

The contract between Burch and Alaqua Lakes provides that customer lists and prospect registration cards are confidential and that Burch would not use confidential information without permission from Ala-qua Lakes. Alaqua Lakes considered Burch’s action a breach of ethics and of the contract between them. It fired Burch by terminating the contract.1 Besides terminating the contract, Alaqua Lakes refused to pay Burch commissions to which he claimed entitlement. He claimed he was entitled to commissions (1) for sales that closed before his contract was terminated, and (2) for sales he procured, but which closed after he separated from Alaqua Lakes.

Under the contract with Alaqua Lakes, Burch would be entitled to a percentage of those commissions, or to no commissions at all, depending upon the reason for his termination. First, the contract provided [606]*606that if Alaqua Lakes terminated the contract upon 30 days notice, Burch would be entitled to 75% of the commissions due him for firm, non-contingent contracts for the sale of lots and/or homes (payable at the time of closing). Second, the contract could be terminated by Alaqua Lakes on five days notice if “the Associate violates the rules and regulations established by the Company from time to time for office procedures and practices.” In that event, Burch would be entitled to 50% of the commissions due him. Third, if Burch terminated the contract (on 30 days notice) he would be entitled to 50% of his commissions. Fourth, paragraph 7(b)(iv) of the contract provided that it could be terminated immediately if Burch were no longer a duly licensed real estate salesperson, or if he “violates any applicable laws, rules or regulations, or engages in conduct that may in any way impact upon the reputation of [Alaqua Lakes]”.2 Under the latter scenario, Burch would be entitled to no commission “otherwise due Associate on-lot and/or home transactions which were under contract (and did not yet close) prior to termination of this Agreement.” By negative inference, it would appear, Burch would be entitled to 100% of the commissions due him in connection with closings that occurred before termination, without regard to the reason for termination. However, paragraph 4(f) of the contract allows Alaqua Lakes to “withhold and set off from any payments or commissions due the Associate any amounts owed the Company by the Associate pursuant to the terms and provisions of this Agreement.”

After Alaqua Lakes learned that Burch had sold his own lot, Alaqua Lakes sent him a letter of immediate termination “pursuant to paragraph 7(b)(iv)” of the agreement, which provided for immediate termination if the salesperson “violates any applicable laws, rules or regulations, or engages in conduct that may in any way impact upon the reputation of [Aaqua Lakes].” Aaqua Lakes refused to pay Burch his outstanding commissions for sales that.closed after termination, and it refused to pay him $12,983.41 in commissions for sales which closed prior to the termination. Just prior to the termination, Aaqua Lakes had drafted a check payable to Burch in the amount of $12,983.41 and withheld it. Aaqua Lakes contended that it had incurred various costs as a result of Burch’s alleged breach of contract and withheld the $12,983.31 based on paragraph 4(f) of the contract.

Burch sued Aaqua Lakes for breach of contract and fraud, and Aaqua Lakes counterclaimed for breach of contract. It also claimed as an affirmative defense that Burch had breached the contract. On his breach of contract count, Burch claimed to be owed about $300,000, representing commissions for sales he procured. He also sought damages for sales he would have procured over the remaining term of the contract had he not been terminated. Finally, he sought damages for anticipated commissions over the life of the project.

Burch testified that he purchased the lot to build a home and live there, but changed his mind because his commission rate was reduced under the second contract, because more sales associates were added to the force, and because the developer had decided to increase profits by slowing sales and allowing the value of the lots to continue to increase. The couple to whom he sold his lot became his clients because he was “up” when they came in. Burch showed them several lots, but they asked to see “something else,” whereupon he showed them the undeveloped Phase III. Burch then showed them his lot, tell[607]*607ing them that it might be available. They were interested and he told them he had it under contract. The price was $116,000, or $27,000 more than Burch’s purchase price.

Burch testified that he thought the couple would purchase elsewhere if his lot were not offered to them, and that the purchase would be a win-win situation in that he would not be required to sell some stock in order to close on his purchase, and Alaqua Lakes would have an additional commission. The testimony of the couple generally supported the account given by Burch. They wanted an elevated corner lot that had a stand of trees; Burch’s lot matched that description.

A witness for Alaqua Lakes admitted that if Burch did not breach the contract he would be entitled to damages of $234,000. The jury found that Burch did not breach the contract, but that Alaqua Lakes did breach the contract. The verdict awarded Burch $12,983.41. This is the amount Alaqua Lakes claimed as a set-off. Burch moved for a judgment notwithstanding the verdicts as to damages, for an additur, or for a new trial on damages. The trial court entered an order of additur in the amount of $234,000. In the alternative, the court ordered a new trial on Burch’s claim for $234,000 in commissions and on the affirmative defenses to that claim. The court set forth its reasons:

(a) the jury specifically found that Ala-qua Lakes materially and substantially breached the parties’ Independent Contractor Agreements; (b) the jury specifically found that Burch did not materially and substantially breach the parties’ Independent Contractor Agreements; and (c) Keith C. Bass, on behalf of Alaqua Lakes admitted that a fair calculation of Burch’s real estate commissions, in the event that he did not materially and substantially breach the parties’ Independent Contractor Agreements, is $234,000.

The court did not order a new trial on Burch’s claim for fraud in the inducement or for damages beyond the $234,000. Nor did the court order a new trial on the counterclaim for breach of contract brought by Alaqua Lakes.

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Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 604, 2001 Fla. App. LEXIS 10965, 2001 WL 874222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alaqua-lakes-realty-inc-v-burch-fladistctapp-2001.