Opinion
Nos. 78-312, 78-313 and 78-323.
May 28, 1980. Rehearing Denied July 30, 1980.
Appeal from the Circuit Court, Okeechobee County, G.E. Bryant, Jr., J.
Larry Klein, West Palm Beach, and Steinberg Sorota, Miami Beach, for Viking Communities Corp.
Walter H. Beckham, Jr. and Michael Olin of Podhurst, Orseck Parks, P.A., Miami, and Gerald James, Fort Pierce, for Robert Marlin.
George E. Adams of Adams Hill, Orlando, for Haynes E. Williams.
This is an appeal from a final judgment entered in favor of the appellee, Haynes Williams, a real estate broker, on his action against appellant, Viking Communities Corp., for a broker's commission on the sale of real estate owned by appellant.
Prior to a scheduled jury trial Viking filed a motion asking the trial judge to excuse himself from presiding over the case due to his relationship with the appellee Williams who had served as clerk of the trial court for many years. The trial judge had previously excused himself from presiding over marriage dissolution proceedings involving Williams. In considering the motion the trial judge indicated that he would excuse himself if the case was tried without a jury. However, since the case was to be tried by a jury, he felt that he could continue on the case and rule on issues of law. In his order denying appellant's motion the court stated:
The Court, however, provides that it will recuse itself in the event that the trial in this case is a non-jury trial, but the Court finds that, in the event of a jury trial, there is no basis for recusation.
A trial judge's role in the conduct of a case, whether ultimately tried before the judge or a jury, is of such significance that the parties are entitled to the same high standard of neutrality from the judge. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932). Although the appellant has neither alleged nor cited any instances of actual prejudice in the proceedings below, we believe that the trial judge erred in failing to excuse himself once he decided that it would be necessary to grant the motion if the case was to be decided without a jury. The appellee also challenged the technical sufficiency of the affidavits and other supporting proof offered by appellant on this matter. However, we believe any issue as to the sufficiency of proof was rendered moot by the trial judge's ruling indicating disqualification would be necessary in a non-jury proceeding.
The appellant has also challenged the sufficiency of the evidence. We have reviewed the record and find that the proof presented was sufficient to submit the case to the jury for determination.
We have also considered the point discussed by Judge Letts in his dissent. Judge Letts fails to note that there was evidence presented that the "unlicensed prospect" acted as the agent for the purchaser rather than as agent for seller or broker, and that the "unlicensed prospect" was paid a substantial fee by the purchaser and received no compensation from the seller or the broker.
Accordingly, this cause is hereby reversed and remanded for a new trial in accordance with the terms of this opinion.
POWELL, ROM W., Associate Judge, concurs.
LETTS, C.J., dissenting in part and concurring in part.
I concur with the majority that the trial judge should have recused himself, but I would not return the matter for a new trial. I am of the opinion that a directed verdict should have been entered because as a matter of law the broker was not entitled to a commission.
The total facts are amorphous and complex, but only a few need be recited to support my conclusion.
In essence, the seller advised the broker that the land was for sale and agreed to pay a commission if the broker procured a buyer. Thereafter the broker contacted a prospective purchaser who did not himself purchase, but instead was instrumental several months later in securing a third party to buy the land in question. That this original non-purchasing prospect was assisted in these instrumental efforts by the broker, we have no doubt, for the latter supplied him with descriptions, appraisals, advice and even suggested the name of the eventual buyer.
Pinning down a legal definition of procuring cause is elusive. See First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410 (Fla. 4th DCA 1972). The Florida definition appears to require the broker to introduce buyer and seller and be the one whose efforts consummate the sale by way of continuous negotiation and/or involvement. Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975) and National Airlines Inc. v. Oscar E. Dooly Assoc., Inc., 160 So.2d 53 (Fla. 3d DCA 1964). All of these requirements and the extent necessary to satisfy them would appear to be questions of fact not law except in unusual circumstances.
As a consequence, in the case now before us, had this original non-purchasing prospect been a licensed broker or salesman, I might not have quarrelled with the finding of fact that the broker's conduct in this case was sufficient to satisfy the test for procuring cause. However the non-purchasing prospect was not licensed in any way to sell real estate under Florida Law and there is no question but that it was this unlicensed non-purchasing prospect, not the broker, who carried out virtually all of the negotiating over several months between seller and purchaser. The broker never once even talked to or wrote to the purchaser. All this being so, while the unlicensed prospect may have been the agent of the broker and may have been the procuring cause of the sale, he (the agent) had no right whatever to any commissions under Florida Law. It goes without saying that his principal, if such the broker was, could claim no greater right to a commission than his agent who carried out all the negotiations. In this respect I note Section 475.41 of the Florida Statutes (1975) which states:
Contracts of unregistered person for commissions invalid. — No contract for a commission or compensation for any act or service enumerated in subsection (2) of s. 475.01 shall be valid unless the broker or salesman shall have complied with this chapter in regard to registration and renewal of the certificate at the time the act or service was performed.
Judge Anstead's footnote leaves me unmoved. It matters not who the unlicensed agent represented or that the purchaser gratuitously paid him a "fee." I still cannot see how the broker can claim a commission from the seller through the unlicensed agent's efforts. See Willner v. Wilder, 280 So.2d 1 (Fla. 3d DCA 1973).
I would direct a verdict as a matter of law.