# Third District Court of Appeal

State of Florida

Opinion filed October 31, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D18-337

Lower Tribunal No. 13-36927

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### Warren W. Lovell, et al.

, Appellants/Cross-Appellees,

vs.



### Martiniano J. Perez, et al.

, Appellees/Cross-Appellants.

An Appeal from the Circuit Court for Miami-Dade County, Jose M.

Rodriguez

, Judge.

Easley Appellate Practice PLLC, and Dorothy F. Easley; Juan Gabriel

Miguel

, for appellants/cross-appellees.

Shook, Hardy & Bacon LLP, and Sergio E. Pagliery, for appellees /cross

appellants.

Before SUAREZ, LOGUE, and LINDSEY, JJ.

LOGUE, J.Warren and Leslie Lovell appeal a May 21, 2018 final judgment declaring

that Martiniano J. and Sofia Perez were not liable to indemnify the Lovells for the

real estate commission of the Lovells’ listing agent. The judgment also awarded

the Perezes $226,240 in attorney’s fees. We affirm.

This dispute resulted from the Lovells’ sale of their property to the Perezes

for $12.4 million. To sell the property, the Lovells entered into a listing agreement

with the real estate brokerage firm of One Sotheby’s International Realty. As a

result of the listing, the Perezes were shown the property by the real estate

brokerage firm of Esslinger-Wooten-Maxwell, Inc. During early negotiations, the

Lovells were represented by Sotheby’s and the Perezes by Esslinger-Wooten. After

becoming dissatisfied with Sotheby’s services, however, the Lovells canceled their

listing agreement with Sotheby’s. The parties then agreed to the sale of the

property and the sale closed.

The Perezes paid the real estate commission of their real estate broker,

Esslinger-Wooten. The Lovells, however, did not pay the commission claimed by

Sotheby’s. Sotheby’s sued the Lovells for the commission. The Lovells wrote a

letter demanding that the Perezes indemnify them for Sotheby’s claim. The Perezes

then intervened in the lawsuit seeking a declaration that they were not liable to

indemnify the Lovells. The Lovells counterclaimed against the Perezes. A jury

found the Lovells liable for Sotheby’s commission. The trial judge entered a

2judgment on the pleadings for the Perezes on their suit against the Lovells. The

judge also entered a summary judgment for the Perezes on the Lovells’

counterclaim against the Perezes. Ultimately, the trial court entered the final

judgment at issue. The Lovells timely appealed.

This appeal turns on the provision of the sales contract regarding real estate

broker’s commissions which required the Lovells, as sellers, to indemnify the

Perezes, as buyers, in certain circumstances, and the Perezes, as buyers, to

indemnify the Lovells, as sellers, in circumstances. The two critical sentences read:

If a real estate agent/broker claims a commission by virtue of

having a listing agreement with the SELLERS, whether on or

before the closing date, or by virtue of a verbal or other agreement,

SELLERS will indemnify and hold the BUYERS harmless for all

fees and costs, including the fee of BUYERS’ attorney of choice

should BUYERS or either of them be joined in any suit or

subpoenaed as a witness or otherwise or if BUYERS must set forth

BUYERS’ position to such agent/broker by letter or otherwise upon

contact by such agent/broker. If a real estate agent/broker claims a

commission by virtue of showing the subject property to BUYERS

or being a “procuring cause” of the purchase then BUYERS will

indemnify and holder [sic] SELLERS harmless for all fees and

costs, including the fee of SELLERS’ attorney of choice should

SELLERS or either of them be joined in any suit or subpoenaed as

a witness or otherwise or if SELLERS must set forth SELLERS’

position to such agent/broker by letter or otherwise upon contact by

agent/broker. The terms of the Paragraph along with Paragraph 15

of the Contract will survive the closing for five (5) years.

The first sentence of this provision clearly establishes that the Lovells, as

sellers, will indemnify the Perezes, as buyers, from the claims for commissions

based on “a verbal or other agreement.” The gravamen of count 1 of Sotheby’s

3complaint claim against the Lovells was their listing agreement. The Lovells

contend, however, this provision was never triggered because the language “joined

in any lawsuit” does not encompass the Perezes’ voluntarily joining Sotheby’s

lawsuit against the Lovells. We reject this argument because we find the language

broad enough to include a situation, like here, where the Perezes joined the lawsuit

only because they received a demand letter from the Lovells.

The Lovells next argue that their right to indemnification as sellers

contained in the second sentence was triggered because it refers to a claim by a

broker who was a “procuring cause” and the jury found that their broker,

Sotheby’s, was a procuring cause. Accordingly, the Lovells maintain, the

indemnity provision gives them the right to be indemnified by the Perezes from a

claim based on the Lovells’ own wrongful failure to pay their broker. The Lovells

essentially interpret the second sentence making the Perezes responsible for both

parties’ real estate commissions. We reject this strained interpretation for three

reasons.

First, it would essentially render into a nullity the first sentence of this

provision which clearly provides the Lovells will indemnify the Perezes under

certain circumstances. See Philip Morris Inc. v. French

, 897 So. 2d 480, 488 (Fla.

3d DCA 2004) (“Courts are required to construe a contract as a whole and give

effect, where possible, to every provision of the agreement.”). Second, it runs

4counter to the law that, in the absence of clear and unequivocal contract language

to the contrary, an indemnity agreement regarding broker’s commissions does not

encompass one party’s wrongful failure to pay its own broker. Cordis Corp. v.

Baxter Healthcare Corp.

, 678 So. 2d 847, 848

– 49 (Fla. 3d DCA 1996). Finally, it

is contrary to the patent intent of the contracting parties, in light of the Lovells’

decision to cancel Sotheby’s services while the parties were already negotiating the

sale, to provide that each party be responsible for its own broker’s commission.

Courts deciding commercial disputes cannot ignore the obvious commercial

realities underlying a contract.

Affirmed.

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