Stockton v. Holcomb

District Court of Appeal of Florida

Stockton v. Holcomb

232 So. 2d 748, 1970 Fla. App. LEXIS 6850

CourtDistrict Court of Appeal of Florida

DecidedMarch 18, 1970

DocketNo. 2121

StatusPublished

This text of 232 So. 2d 748 (Stockton v. Holcomb) 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

Stockton v. Holcomb, 232 So. 2d 748, 1970 Fla. App. LEXIS 6850 (Fla. Ct. App. 1970).

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Opinion

OVERTON, BEN F., Associate Judge.

The plaintiff-appellant, Stockton, What-ley, Davin & Company, appeals a final summary judgment for the defendant-ap-pellee, Jack N. Holcomb.

The plaintiff-appellant, Stockton, What-ley, Davin & Company, holder of a promissory note and mortgage, filed its action against Jack N. Holcomb, maker, and Honeylance, Inc., payee and endorser. The trial court dismissed the action on a summary judgment for the defendant-appel-lee Holcomb on the grounds that the note was given as payment for a real estate commission to a nonlicensed real estate broker, in violation of F.S.1967, Section 475.41, F.S.A., and was, therefore, illegal and unenforceable.

The record reflects that the defendant-appellee Holcomb sold certain real estate and executed a note payable to Honeylance, Inc., as a payment on the broker’s commission earned in the transaction. The parties dispute who actually earned the commission. The appellant contends that William H. Davis, Inc., a licensed real estate broker, earned the commission but had it paid by having Holcomb execute the note payable to Honeylance, Inc. On the other hand, the appellee Holcomb contends that [749]*749Honeylance, Inc., which is admittedly not a licensed real estate broker, earned the commission and Section 475.41, makes the note illegal and unenforceable.

There is a material issue of fact in dispute concerning who actually earned the commission, and therefore the entry of a summary judgment for the defendant Holcomb by the trial court was erroneous. Holl v. Talcott, Fla.1966, 191 So.2d 40; Haynes v. Littleford, Fla.App.1965, 173 So.2d 477; Florida Civil Practice Before Trial, 2nd Edition, Section 19.8. There is other evidence which is conflicting, but it is not necessary to determine its materiality to the issues herein.

Reversed and remanded for further proceedings not inconsistent herewith.

CROSS, C. J., and McCAIN, J., concur.

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OVERTON, BEN F., Associate Judge.

The plaintiff-appellant, Stockton, What-ley, Davin & Company, appeals a final summary judgment for the defendant-ap-pellee, Jack N. Holcomb.

The plaintiff-appellant, Stockton, What-ley, Davin & Company, holder of a promissory note and mortgage, filed its action against Jack N. Holcomb, maker, and Honeylance, Inc., payee and endorser. The trial court dismissed the action on a summary judgment for the defendant-appel-lee Holcomb on the grounds that the note was given as payment for a real estate commission to a nonlicensed real estate broker, in violation of F.S.1967, Section 475.41, F.S.A., and was, therefore, illegal and unenforceable.

The record reflects that the defendant-appellee Holcomb sold certain real estate and executed a note payable to Honeylance, Inc., as a payment on the broker’s commission earned in the transaction. The parties dispute who actually earned the commission. The appellant contends that William H. Davis, Inc., a licensed real estate broker, earned the commission but had it paid by having Holcomb execute the note payable to Honeylance, Inc. On the other hand, the appellee Holcomb contends that [749]*749Honeylance, Inc., which is admittedly not a licensed real estate broker, earned the commission and Section 475.41, makes the note illegal and unenforceable.

There is a material issue of fact in dispute concerning who actually earned the commission, and therefore the entry of a summary judgment for the defendant Holcomb by the trial court was erroneous. Holl v. Talcott, Fla.1966, 191 So.2d 40; Haynes v. Littleford, Fla.App.1965, 173 So.2d 477; Florida Civil Practice Before Trial, 2nd Edition, Section 19.8. There is other evidence which is conflicting, but it is not necessary to determine its materiality to the issues herein.

Reversed and remanded for further proceedings not inconsistent herewith.

CROSS, C. J., and McCAIN, J., concur.

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232 So. 2d 748, 1970 Fla. App. LEXIS 6850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stockton-v-holcomb-fladistctapp-1970.

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