final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-26949, Jose M. Rodriguez, Judge.
Vezina, Lawrence & Piscitelli, P.A., and Michael
Piscitelli and Jodi N. Cohen (Fort Lauderdale), for
Woodbury, Santiago & Correoso, P.A., and Michael Woodbury
and Margaret Brenan Correoso, for appellees.
Carlton Fields Jorden Burt, P.A., and Matthew J. Conigliaro
(Tampa), for the Florida Association of Realtors, Inc., d/b/a
Florida Realtors, as amicus curiae.
ROTHENBERG, SALTER, and FERNANDEZ, JJ.
plaintiff below, Plaza Tower Realty Group, LLC ("the
Broker"), appeals from a final summary judgment entered
in favor of defendants 300 South Duval Associates, LLC
("300 South Duval") and The Union Labor Life
Insurance Company ("Union Labor") (collectively,
"the Lenders"). The trial court determined that,
pursuant to the Exclusive Agency Listing Agreement
("listing agreement") between the Broker and the
developer, Kleman Plaza, LLLP ("the Developer" or
"Owner"), the Broker did not have an
"ownership interest" in the deposits retained by
the Developer and subsequently remitted from the Developer to
the Lenders to reduce the balance of the Developer's
construction loan after contracted purchasers failed to
on the clear and unambiguous language in the listing
agreement, we conclude that the Broker did have an
"ownership interest" in a portion of the retained
deposits because the listing agreement identifies the
retained deposits as the particular fund from which the
Broker will be paid any commission due and owing in the event
that a unit fails to close. Therefore, we reverse the final
summary judgment entered in favor of the Lenders, and remand
for further proceedings consistent with this opinion.
2004, the Broker and the Developer entered into the listing
agreement, which includes the following provisions that
govern the resolution of the issue raised in this appeal:
7. Compensation. As compensation for all services to
be rendered to Owner by Broker during the term of this
Agreement, Owner and Broker agree that, subject to the terms
hereinafter set forth, Broker shall be deemed to have earned
and be entitled to receive sales commissions only in
accordance with the following:
(e) Anything contrary herein notwithstanding, Broker shall
not be entitled to any commission whatsoever as to the sale
of a Unit which fails to close for any reason whatsoever,
including, without limitation, the default of Owner,
provided, however, that in the event that a contract is
cancelled and/or a sale fails to close for any reason
whatsoever, and Owner retains the purchaser's deposits in
connection therewith, then, in such event, Broker shall be
paid a commission equal to one third of the amount of the
retained deposits less all ...