Sally Biehusen Real Estate, Inc. v. Kahan

OPINION OF THE COURT ROBERT M. GROSS, County Judge. This case came before the Court for nonjury trial on May 21, 1986. The Court heard the sworn testimony of witnesses and received documents into evidence. Plaintiff is a real estate agent. Defendant owns a condominium in Palm Beach. On December 7, 1984, Plaintiff procured a tenant, Jack Khazzam, for Defendant’s unit. The commission agreement between Plaintiff and Defendant, which was drafted by Plaintiff, provided as follows: [29] Lessor acknowledges that Lessee was procured by [Plaintiff] and agrees to recognize said Rental Agent as the procuring cause of this stipulated agreement entered into with Lessee, and agrees to pay said Rental Agent a commission of ten per cent (10%) therefore. On such extensions or renewals when made by Lessee, the foregoing commission rate shall apply. - If the property of which the premises are a part is sold by Lessor to Lessee during the term of this lease, or during the term of any further extension or renewal agreement, (any continued occupancy of the premises by the Lessee after the expiration of this Lease shall be considered a further extension or renewal agreement), the Lessor will pay said Rental Agent a commission on the selling price. . . The initial lease between Defendant and her tenant Khazzam ran from January 11 to April 11, 1985. The rent for the term was $7,000.00. At the end of the lease, Khazzam vacated the apartment. Pursuant to her contract with Plaintiff, Defendant paid Plaintiff a 10% commission. In September, 1985, Khazzam contacted Defendant directly about renting the unit for the upcoming season. After negotiations, Defendant and Khazzam entered into a new lease for the condominium. The term of this lease was from December 21, 1985 to March 21, 1986. Khazzam agreed to pay $9,450.00 rent. Plaintiff took no part in either the negotiations or preparation of the second lease. In this suit, Plaintiff seeks to recover a 10% commission under the terms of its original commission agreement with Defendant. Plaintiff’s entitlement to recover a commission turns on the scope of its original commission agreement with Defendant. See, Plumbing Industry Program, Inc. v. Good, 120 So.2d 639 (Fla. 3d DCA 1960); Annot., 79 ALR 2d 1063 (1961); Dooley v. Embry-Riddle Co., 2 Fla. Supp. 172 (Dade Cir. Ct. 1952). That agreement provided that Plaintiff could recover an additional commission for “such extensions or renewals.” Within the context of the entire agreement, that phrase cannot be assigned any clear meaning. Plaintiff drafted the commission agreement and selected the language used to define its right to a commission. Any ambiguity in the meaning of “such extensions or renewals” should be construed against Plaintiff. 11 Fla. Jur. 2d “Contracts” Section 106 (1979). The agreement defines “any further extension or renewal agreement” as “any continued occupancy of the premises by the Lessee after the expiration of this Lease.” A “continued occupancy” is clearly one which immediately follows the expiration of the original term. In this case, the second lease commenced over 8 months after the [30] first lease expired. The tenant had vacated the premises at the end of the first lease. Plaintiff made no contribution whatsoever towards the execution of the second lease. Under the facts of this case, Plaintiff’s commission agreement did not extend to cover the second lease. The Court cannot rewrite the terms of the contract to protect the Plaintiff Rental Agent, especially in an area where seasonal rentals are so common that the parties to this type of contract would be expected to anticipate and provide for such occurrences. It is ORDERED AND ADJUDGED that Plaintiff, SALLY BIEHUSEN REAL ESTATE, INC., take nothing by its action and that Defendant, JANE KAHAN goes hence without day. DONE AND ORDERED in West Palm Beach, Florida this 6th day of June, 1986.