E & S Realty, Inc. v. American Equity International Corp.

District Court of Appeal of Florida

E & S Realty, Inc. v. American Equity International Corp.

478 So. 2d 1160, 10 Fla. L. Weekly 2611, 1985 Fla. App. LEXIS 17080

CourtDistrict Court of Appeal of Florida

DecidedNovember 26, 1985

DocketNo. 85-258

StatusPublished

Cited by1 cases

This text of 478 So. 2d 1160 (E & S Realty, Inc. v. American Equity International Corp.) 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

E & S Realty, Inc. v. American Equity International Corp., 478 So. 2d 1160, 10 Fla. L. Weekly 2611, 1985 Fla. App. LEXIS 17080 (Fla. Ct. App. 1985).

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Opinion

PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings upon a holding that a genuine issue of material fact is raised upon this record as to whether an accord and satisfaction was reached in this case.

Although the plaintiff’s principal, Shirley Attias, accepted from the defendants an $8,459.57 check containing a restrictive endorsement which stated “final payment on all [plaintiff’s] commissions at Club Atlantis,” a genuine issue of material fact is presented as to whether Ms. Attias modified this endorsement, in the presence of and with the consent of an authorized agent of the defendants, by adding the language, “on units that closed.” If the said modification was accomplished with the consent of both parties herein, there could be no accord and satisfaction sufficient to bar the plaintiff’s claim brought below for real estate brokerage commissions. See Burley v. Mummery, 222 So.2d 261 (Fla. 3d DCA 1969). This being so, summary judgment was inappropriately entered in this case given the state of this record.

Moreover, we are unpersuaded that the summary judgment should be affirmed on other grounds. We have not overlooked the defendants’ contentions to the contrary [1161]*1161on this point, but find them to be without merit.

Reversed and remanded.

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PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings upon a holding that a genuine issue of material fact is raised upon this record as to whether an accord and satisfaction was reached in this case.

Although the plaintiff’s principal, Shirley Attias, accepted from the defendants an $8,459.57 check containing a restrictive endorsement which stated “final payment on all [plaintiff’s] commissions at Club Atlantis,” a genuine issue of material fact is presented as to whether Ms. Attias modified this endorsement, in the presence of and with the consent of an authorized agent of the defendants, by adding the language, “on units that closed.” If the said modification was accomplished with the consent of both parties herein, there could be no accord and satisfaction sufficient to bar the plaintiff’s claim brought below for real estate brokerage commissions. See Burley v. Mummery, 222 So.2d 261 (Fla. 3d DCA 1969). This being so, summary judgment was inappropriately entered in this case given the state of this record.

Moreover, we are unpersuaded that the summary judgment should be affirmed on other grounds. We have not overlooked the defendants’ contentions to the contrary [1161]*1161on this point, but find them to be without merit.

Reversed and remanded.

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Bluebook (online)

478 So. 2d 1160, 10 Fla. L. Weekly 2611, 1985 Fla. App. LEXIS 17080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-s-realty-inc-v-american-equity-international-corp-fladistctapp-1985.

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