Stockton, Whatley, Davin v. Holcomb

Full title: STOCKTON, WHATLEY, DAVIN COMPANY, APPELLANT, v. JACK N. HOLCOMB AND…

Court: District Court of Appeal of Florida, Fourth District

Date published: Mar 18, 1970

232 So. 2d 748 (Fla. Dist. Ct. App. 1970)

Opinion

No. 2121.

March 18, 1970.

Appeal from the Circuit Court for Broward County, Richard M. Sauls, J.

James W. Geiger, Fort Lauderdale, for appellant.

Jack N. Holcomb, in person.

OVERTON, BEN F., Associate Judge.

The plaintiff-appellant, Stockton, Whatley, Davin Company, appeals a final summary judgment for the defendant-appellee, Jack N. Holcomb.

The plaintiff-appellant, Stockton, Whatley, 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-appellee 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 Honeylance, 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.