5D02-2105 Mayfair Int. v. Del Gardo

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2105

Case Date: 01/26/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004 MAYFAIR INTERNATIONAL, INC., Appellant/Cross-Appellee, v. DAVID DEL GARDO, ETC., ET AL., Appellee/Cross-Appellant. / Opinion filed January 30, 2004 Appeal from the Circuit Court for Orange County, Ted P. Coleman, Judge. T. Todd Pittenger of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant/Cross-Appellee. Berry J. Walker, Jr. of Walker & Tudhope, P.A., Maitland, for Appellee/Cross-Appellant. PALMER, J. Mayfair International (the broker) appeals the final order entered by the trial court granting summary judgment in favor of appellee, David Del Gardo (the seller), based upon the finding that the broker was not entitled to recover a real estate commission. Concluding that the trial court erred in ruling that an accord and satisfaction occurred in this case, we reverse. The broker sued the seller and others based upon an Exclusive Listing Agreement which had been executed by the parties. The Listing Agreement provided, among other things, that a ten percent commission would be paid to the broker on the gross sales price of the property, as well as on any options or fees, and that the entire commission would be due in cash at the time of closing. Sale of the property Case No. 5D02-2105

closed but, at the time of summary judgment, the broker had not yet received its total commission. The broker sued for the balance of the unpaid commission, as well as contractual attorney's fees and costs, alleging that without its approval or consent, the buyer (Buena Vista Shores) had executed a separate agreement with the seller proposing to pay the broker a portion of its commission in cash at closing and the remaining balance in a balloon payment three years later, as evidenced by a promissory note. The complaint further alleged that the promissory note had been given to the broker, but the broker had not sought enforcement of same. The seller filed an answer denying liability and asserting several affirmative defenses including equitable estoppel, waiver, accord and satisfaction, release, and payment. The broker filed a motion for summary judgment, arguing that the evidence of record demonstrated that the seller had breached the term of the parties' Listing Agreement. The seller responded by filing an affidavit in opposition to the motion stating that the broker had verbally agreed with the seller to be paid by the buyer. That motion was denied by the trial court. The seller then filed a motion for summary judgment on its affirmative defense of statutory accord and satisfaction.1 The broker filed an affidavit in opposition to the motion stating, among other things, that it had never verbally or in writing agreed to modify any of its rights under the parties' Listing Agreement. Upon review, the trial court found that statutory accord and satisfaction applied and entered a summary judgment accordingly. The broker challenges this ruling, arguing that the statute is not applicable to the instant facts. We agree. Section 673.3111(4) of the Florida Statutes (2001) sets forth the elements of statutory accord and

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