Opinion
No. 76-1934.
January 17, 1978.
Appeal from the Circuit Court, Broward County, George Richardson, Jr., J.
Edna Louise Caruso of Montgomery, Lytal, Reiter, Denney Searcy, P.A., West Palm Beach, for appellant.
Brian L. Kimber and Michael J. Padula of Allsworth, Doumar, Schuler, Padula Laystrom, Fort Lauderdale, for appellees.
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.