Rauch, Weaver, Millsaps & Co. v. Campbell-Dickey Marketing Services, Inc.

354 So. 2d 403, 1978 Fla. App. LEXIS 14859

• Court: District Court of Appeal of Florida
• Decided: January 17, 1978
• Docket: No. 76-1934
• Status: Published

Opinion

PER CURIAM.

Plaintiff, Rauch, Weaver, Millsaps & Co., a Florida corporation, appeals from a Final Summary Judgment in favor of the defendants Campbell-Dickey Marketing Services, Inc., a Florida corporation, and Frank A. Stuart, M.D. We hold that summary judgment was properly entered denying plaintiff the relief sought in its amended complaint. However, counsel for the defendants concede that Campbell-Dickey Marketing Services, Inc., was obligated to pay the plaintiff a six percent broker’s commission in the event the subject property was sold. In circumstances such as this, where a summary judgment should be entered, yet the plaintiff may have a cause of action not pleaded, the proper procedure is to enter the summary judgment with leave to amend. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963).

The judgment is AFFIRMED. However, this affirmance is without prejudice to the plaintiff, within a time to be set by the trial court, to move for leave to amend its complaint against Campbell-Dickey Marketing Services, Inc.

ALDERMAN, C. J., and CROSS and MOORE, JJ., concur.