       Third District Court of Appeal
                               State of Florida

                          Opinion filed October 7, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2705
                         Lower Tribunal No. 12-43790
                             ________________


                  Phoenix Asset Management LLC, etc.,
                                    Appellant,

                                        vs.

         GCCFC 2005-GG5 Route 33 Industrial, LLC, et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon,
Judge.

      Egozi & Bennett, P.A., and Bernard L. Egozi and Isaac S. Lew (Aventura),
for appellant.

     Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and S. Alan Stanley and
Matthew I. Kramer, for appellees.


Before WELLS, SHEPHERD, and LOGUE, JJ.

      LOGUE, J.
      Phoenix Asset Management, LLC, d/b/a Realta Group (“Broker”), appeals a

final summary judgment entered in favor of GCCFC 2005-GG5 Route 33

Industrial, LLC, and LNR Partners, LCC (“Property Owners”). Because the

affidavit submitted by the Broker in opposition to summary judgment was

sufficient to create an issue of fact, we reverse and remand for a greater

development of the factual record.

      The Broker sued the Property Owners seeking payment of a real estate

commission for brokering a lease extension on the Property Owners’ store located

in Lakeland, Florida. Its complaint alleged that it was “the only broker that

represented the parties with respect to the Lease Extension.” The complaint also

alleged the Broker was “a duly licensed real estate broker.”

      In its answers to interrogatories, however, the Broker revealed it was

licensed in New York, not Florida. The Property Owners then moved for summary

judgment based on section 475.41, Florida Statutes (2014), which prohibits brokers

without Florida real estate licenses from collecting commissions on Florida

transactions. The summary judgment motion was filed on January 16, 2014, and

heard by the court on May 16, 2014. As currently allowed by Florida Rule of Civil

Procedure 1.510(c), the Broker waited until two days before the hearing, which

was four months after the summary judgment motion was filed, to deliver its

opposition to the motion.



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      In opposing the motion, the Broker departed from its allegations in the

complaint and took the position that it was not, in fact, the only broker that

represented the parties with respect to the lease extension. The Broker filed an

affidavit by its vice-president, in which the vice-president essentially testified that

the Broker actually co-brokered the extension of the lease with First Market

Properties, LLC, a Florida licensed broker.1

      The Broker then argued that its claim could proceed under a common law

exception to section 475.41 which allows out-of-state brokers to sue for their share

of the commission when they co-broker property with a licensed Florida broker.

See, e.g., Kagan v. Garfinkle, 312 So. 2d 778, 779 (Fla. 3d DCA 1975) (holding

that where a Florida broker hired a foreign broker to find foreign purchasers for

Florida real estate, “such a contract is legal and gives rise to rights in the foreign

broker for the recovery of his share of the commission from the Florida broker who

employed him”).

      The rationale for this exception is that, when the foreign broker is acting as a

co-broker with a Florida broker, “the public policy of section 475.41, Florida

Statutes, is effectuated because under any co-broker arrangement the Florida

licensed broker will be legally and professionally responsible for the acts of the



1 In its initial brief, the Broker indicated that the correct legal name of its co-broker
is Opportunity Home Sales, LLC, d/b/a First Market Properties.

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cooperating foreign broker as well as for his own acts in the joint venture.” Tassy

v. Hall, 429 So. 2d 30, 34 (Fla. 5th DCA 1983).2

      Although the vice-president’s affidavit is far from a model of clarity, we

hold it was sufficient to prevent entry of summary judgment in the absence of a

more detailed factual record. For this reason, we reverse.

      We remand to allow the development of a more detailed factual record

addressing whether the Broker actually worked in conjunction with the Florida

broker to procure the subject lease extension. Nothing in this opinion should be

read as precluding a renewed motion for summary judgment by either party once

the factual record is developed. In this regard, however, we remind the trial court,

and caution the parties, that rule 1.510(g) requires the court to award attorney’s

fees in the event the court finds that an affidavit was filed in bad faith or solely for

the purpose of delay.

      Reversed and remanded for further proceedings consistent with this opinion.




2We do not reach the issue of whether changes in the statutes subsequent to these
decisions obviated the common law exception. Nor do we reach the issue of
whether the Florida broker is an indispensable party to this action.

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