Kern v. Martz

District Court of Appeal of Florida

Kern v. Martz

462 So. 2d 867, 10 Fla. L. Weekly 270, 1985 Fla. App. LEXIS 12156

District Court of Appeal of Florida·Decided January 30, 1985·No. No. 83-1951·Published·Cited by 1 cases

Opinion

LETTS, Judge.

The trial court dismissed, with prejudice, an amended complaint filed by a broker seeking a real estate commission and other relief. We reverse.

The facts are complex, but we see no need to set them forth in agonizing detail. Basically, the broker had suffered dismissal of his complaint against the buyer and his associates after they successfully argued that the complaint, and its attached exhibits, called for payment of any brokerage fee due by the seller not the buyers. Apparently they were also successful in their contention that in any event, the contemplated sale never took place. However, the complaint alleged that the buyers were obligated to pay the commission and that the sale was concluded. Indeed, the sales agreement attached to the complaint, while obligating the seller to pay the commission in one segment thereof appeared elsewhere to place the onus of actually paying over any commission on the buyers.

As we view the amended complaint, it stated a cause of action against all the defendants and the defenses thereto must be affirmatively pled. We do not hold that the broker’s allegations can survive a directed verdict or even a summary judgment. That remains to be seen. We simply hold that it was reversible error to dismiss the amended complaint in favor of the buyer and his associates.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.

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LETTS, Judge.

The trial court dismissed, with prejudice, an amended complaint filed by a broker seeking a real estate commission and other relief. We reverse.

The facts are complex, but we see no need to set them forth in agonizing detail. Basically, the broker had suffered dismissal of his complaint against the buyer and his associates after they successfully argued that the complaint, and its attached exhibits, called for payment of any brokerage fee due by the seller not the buyers. Apparently they were also successful in their contention that in any event, the contemplated sale never took place. However, the complaint alleged that the buyers were obligated to pay the commission and that the sale was concluded. Indeed, the sales agreement attached to the complaint, while obligating the seller to pay the commission in one segment thereof appeared elsewhere to place the onus of actually paying over any commission on the buyers.

As we view the amended complaint, it stated a cause of action against all the defendants and the defenses thereto must be affirmatively pled. We do not hold that the broker’s allegations can survive a directed verdict or even a summary judgment. That remains to be seen. We simply hold that it was reversible error to dismiss the amended complaint in favor of the buyer and his associates.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.

Kern v. Martz, 462 So. 2d 867, 10 Fla. L. Weekly 270, 1985 Fla. App. LEXIS 12156 (Fla. Ct. App. 1985).

Pincite

462 So. 2d 867 (Kern v. Martz) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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