                                                                       [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                         FOR THE ELEVENTH CIRCUIT U.S.        COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               JAN 12 2001
                           ________________________          THOMAS K. KAHN
                                                                  CLERK
                                 No. 99-15367
                           ________________________

                      D. C. Docket No. 98-00015-CV-RV-SMN



MEDIA SERVICES GROUP, INCORPORATED,
a Virginia corporation,

                                                                 Plaintiff-Appellee,

                                     versus

BAY CITIES COMMUNICATIONS, INC.,
a Florida corporation,

                                                           Defendant-Appellant.

                           ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                               (January 12, 2001)

Before BLACK, FAY and COX, Circuit Judges.

FAY, Circuit Judge:
      Defendant Bay Cities Communications, Inc. (“Defendant”) appeals from the

district court’s judgment in favor of Plaintiff Media Services Group, Inc.

(“Plaintiff”) in the amount of $61,116 plus interest for brokerage services that

facilitated the sale of a radio station owned by the Defendant. The district court

found that Plaintiff provided services of value to the Defendant for purposes of its

unjust enrichment claim. On appeal, Defendant argues that Florida law does not

recognize unjust enrichment as a basis for recovery of a broker’s commission.

Alternatively, Defendant contends Plaintiff cannot recover under a theory of unjust

enrichment because Plaintiff failed to prove that it conducted continuing

negotiations with the ultimate purchaser or was the procuring cause of the sale.

We affirm on the basis that the district court’s findings of fact are not clearly

erroneous, and Florida law does recognize unjust enrichment as a cause of action

by a broker.

               I.   BACKGROUND

      As found by the district court, Plaintiff is in the business of brokering the

sale of media properties, including radio and television stations. Defendant, at all

times relevant to the present dispute, owned and operated WMXZ-FM, a radio

station located in Destin Florida. In November 1995, the parties entered into a

station marketing agreement that granted Plaintiff a 90-day exclusive right to sell


                                           2
the Defendant’s radio station. Although the Defendant exercised its right to

terminate the agreement on February 23, 1996, the district court found that the

Plaintiff continued to market WMXZ-FM with the knowledge and assistance of

Defendant.1 In early 1996, the Plaintiff’s vice-president sent Root

Communications (“Root”) a list of radio stations, including station WMXZ, that

were available for sale. In April 1996, Plaintiff arranged for Root personnel to tour

WMXZ and meet Jack Jernigan, a shareholder of the Defendant. In May 1996,

Plaintiff attempted to arrange the sale of WMXZ, as a package with three other

stations, however the buyer elected not to complete the purchase. In October 1996,

Plaintiff sent out offering memoranda marketing WMXZ with two other stations,

and again contacted Root to solicit an offer for WMXZ. Plaintiff continued to

approach prospective buyers in late 1996 and early 1997.

       In December 1996, Plaintiff informed Defendant that it had located a buyer,

and Defendant executed a letter agreement dated January 16, 1997 acknowledging

the Plaintiff’s representation of the Defendant in the proposed sale of WMXZ to

Hochman Communications, Inc. (“Hochman”). Defendant accepted Hochman’s

offer on April 3, 1997, however, Hochman had difficulty obtaining adequate



       1
          The district court found that the Defendant provided the Plaintiff with updated
financial data to aid in the Plaintiff’s preparation of additional offering memoranda.

                                                3
financing. Nevertheless, Defendant continued to express some interest in a sale to

Hochman. As part of continuing progress reports, Plaintiff informed Defendant on

June 13, 1997 that Hochman would obtain financing in approximately one week.

Unfortunately, by the time Plaintiff communicated, on June 27, 1997, that

Hochman had secured financing, Jernigan had initiated contact with Root

Communications’ Tom DiBacco.2 As a result of this contact, Root made an offer

to buy WMXZ on June 27, 1997. On August 25, 1997, Defendant signed a

contract for the sale of the station to Root for the agreed purchase price of

$2,444,651.29.

       The district court found that Plaintiff attempted to contact Defendant several

times in June 1997.3 When one of the Defendant’s shareholders finally returned

Plaintiff’s call, it was to inform Plaintiff that Defendant had found another buyer.

Defendant would not identify the buyer, and did not invite the Plaintiff to

participate in the negotiations. Plaintiff sent Defendant a letter on August 5, 1997,

stating that it had introduced Root to the Defendant and was concerned about being



       2
         The district court found that Jernigan called DiBacco in mid-June of 1997 and
proposed that DiBacco join with Jernigan in buying WMXZ from the Defendant’s other
shareholders. In reply, DiBacco suggested an outright sale of the station to Root.
       3
         Although the District Court’s Order indicates that Plaintiff’s agent contacted the
Defendant in June 1996, we assume the date must be a typographical error based on the
chronology of events.

                                                4
left out of the negotiations. Nevertheless, in October 1997, Defendant informed

Plaintiff that it did not intend to pay any commission for the sale of WMXZ to

Root. Plaintiff filed suit in the District Court for the Northern District of Florida

on January 20, 1998, alleging breach of an oral contract to pay a brokerage fee

upon the sale of WMXZ (Count I), unjust enrichment (Count II), and quantum

meruit (Count III). Based on the evidence presented at trial, the district court ruled

in favor of the Plaintiff on its unjust enrichment claim, and awarded Plaintiff the

value of its services relating to the sale of WMXZ.4

              II      DISCUSSION

       We review the district court’s conclusions of law de novo. Horton v.

Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998). We will

not disturb the district court’s findings of fact unless they are clearly erroneous.

Godfrey v. BellSouth Telecommunications, Inc., 89 F.3d 755 (11th Cir. 1996).

       Contrary to Bay Cities’ position on appeal, Florida law recognizes that a

broker may recover compensation under the theory of unjust enrichment. In Banks




       4
          Before trial, the district court ruled that Plaintiff’s claims for breach of an oral
agreement and quantum meruit would be tried by a jury, and that its claim for unjust enrichment,
as an equitable remedy, would be tried by the court. The jury returned a verdict for the
Defendant on Counts I and III, from which neither party appeals.

                                               5
Real Estate Corp. v. Gordon, 353 So.2d 859, 860 (Fla. 3d DCA 1977),5 the court

stated that, to establish a prima facie case on this theory, the Plaintiff must show

either the existence of an implied contract to pay him for services in finding and

negotiating with the ultimate purchasers (citing Estes v. Moylan, 94 So.2d 362

(Fla. 1957)), or that he was the procuring factor in the sale. In order to be

considered the procuring cause of the sale, “the broker must have brought the

[parties] together and effected the sale as a result of continuous negotiations

inaugurated by him unless the seller and buyer intentionally exclude the broker and

thereby vitiate the need for continuous negotiations.” Sheldon Greene &

Associates, Inc. v. Rosinda Investments, N.V., 475 So.2d 925, 927 (Fla. 3d DCA

1985); rev. dismissed, Horn v. Sheldon Greene & Assoc., Inc., 502 So.2d 421 (Fla.

1987).6 “When the broker has brought the prospective parties together, they cannot


       5
           Under Erie, we must apply Florida law. Erie Railroad Co. v. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938). Moreover, in the absence of controlling state precedent, we
are bound by the decisions of intermediate state courts unless there is some persuasive indication
that the state's highest court would decide the issue differently. See Silverberg v. Paine, Webber,
Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983).
       6
           The Florida Supreme Court dismissed the petition for review after further examination
led the Court to factually distinguish the case presented in Shuler v. Allen, 76 So.2d 879
(Fla.1955). Horn, 502 So.2d at 422. In Shuler v. Allen, a case relied upon by Defendant, the
court held that the seller had the right to assume that the broker had abandoned an oral listing
where the broker had failed, for at least seventeen months, to conduct any negotiations with the
seller and had failed even to convey to the seller that the broker was working on the listing. See
id. We also distinguish the case at bar because Plaintiff maintained uninterrupted contact with
the Defendant throughout the Hochman negotiations. Thus, Defendant knew of and encouraged
Plaintiff’s continuing efforts to broker a sale of WMXZ.

                                                6
complain that the broker did not participate in negotiations when they have

purposely excluded the broker from these negotiations by dealing with one another

directly and in secret.” First Realty Corp. v. Standard steel Treating Co., 268

So.2d 410, 413 (Fla. 4th DCA 1972).

      Appellant misplaces reliance on R.C. Hilton Assoc., Inc. v. Stan Musial and

Biggies’s Inc., 702 F.2d 907 (11th Cir. 1983) because in that case, a panel of this

Court assumed without deciding that a broker could recover under a theory of

unjust enrichment. The district court, however, had found that the broker in Hilton

had neither an express nor an implied contract with the seller. Since relief by a

broker under unjust enrichment must be based on express or implied contract, the

Court rejected this theory of recovery based on the facts. The Court noted that the

seller explicitly told the broker that it did not intend to pay a commission and that

the broker would have to arrange for its commission from the buyer. Thus, the

broker in Hilton had no reasonable expectation of receiving compensation for its

services. We read Florida law to state that a broker who brings the buyer and seller

together may be entitled to a commission in the absence of an express contract,

even if the sale was not a result of continuous negotiation conducted by the broker,

if the seller and buyer intentionally exclude the broker from the negotiations.

Siegel v. Landquest, Inc., 761 So.2d 415 (Fla. 5th DCA 2000). Although the


                                          7
district court made no specific findings of intentional exclusion, we cannot read the

district court’s order and detailed findings of fact without concluding that the

Defendant’s conduct amounted to intentional exclusion under Florida law.7

       The Defendant contends that the district court’s findings do not support the

conclusion that Plaintiff was “intentionally excluded” from “secret negotiations” in

order to avoid the payment of a commission. However, as the court in Sheldon

Greene held, intentional exclusion does not require a showing of bad faith. Rather,

intentional exclusion means that the buyer has negotiated directly with the seller

without the participation of the broker who first brought the parties together. This

negotiation is called “secret” because only the buyer and seller are in on it.

Sheldon Greene, 475 So.2d at 928. In this case, the district court found that the

Defendant had no prior contact with or knowledge of the buyer before the station

tour and meeting arranged by the Plaintiff in April 1996. In addition, the district

court found that the Defendant initiated contact with Root in mid-June 1997,8 and

that the parties negotiated for the sale of WMXZ without the Plaintiff despite


       7
         We do not find this conduct malicious. In fact, we believe that it is not uncommon for
buyers and sellers to attempt to circumvent brokers.
       8
           Although Jernigan testified that he called DiBacco and was initially unaware that
DiBacco worked for Root, the district court found that Jernigan knew that DiBacco had recently
sold his radio stations to Root and had started working for Root. The district court reasoned that
the simple fact that Jernigan was able to contact DiBacco at his new workplace indicated that
Jernigan was aware of DiBacco’s new employment with Root.

                                                8
Plaintiff’s written objection to its exclusion from the negotiations. That Jernigan

was a long-time friend of Root’s Tom DiBacco, or that DiBacco suggested the sale

does not change the district court’s implicit finding that the parties excluded the

broker after the broker brought them together. See, e.g., Alcott v. Wagner &

Becker, Inc., 328 So.2d 549 (Fla. 4th DCA 1976) (holding that a broker who

advertised the sellers’ property established a prima facie right to recover a

commission where the prospective buyer read the ad, discovered the seller was a

friend, and consummated the sale without the broker).

      Defendant correctly points out that the district court states, in his final order,

that Plaintiff was not the procuring cause of the sale. However, everything else in

the district court’s opinion suggests the contrary, and we cannot reconcile the

district court’s findings with the conclusion that Plaintiff was not the procuring

cause. We can only assume that the district court used the term “procuring cause”

synonymous with a requirement of continuous negotiations. When “a district court

has failed to make a finding because of an erroneous view of the law ... remand is

proper unless the record permits only one resolution of the factual issue.”

Pullman-Standard v. Swint, 456 U.S. 273, 291-2 (1982). Here, remand is

unnecessary because our review of the district court’s extensive findings compels

us to conclude that Plaintiff was the procuring cause. See Nix v. WLCY


                                           9
Radio/Rahall Communications, 738 F.2d 1181, 1187 (1984) (concluding that

remand was unnecessary because the record compelled but one result). The only

reason Plaintiff did not bring the sale to fruition is because Plaintiff was

intentionally excluded.

      Finally, we cannot find error with the district court’s finding that Plaintiff

was entitled to compensation under an unjust enrichment analysis. The elements

of a cause of action for unjust enrichment are: (1) the Plaintiff has conferred a

benefit on the Defendant; (2) the Defendant has knowledge of the benefit; (3) the

Defendant has accepted or retained the benefit conferred; and (4) the circumstances

are such that it would be inequitable for the Defendant to retain the benefit without

paying fair value. Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA

1998); Greenfield v. Manor Care, Inc., 705 So.2d 926, 930 (Fla. 4th DCA 1997);

Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996).

      Here, the district court found that Plaintiff provided services of value to the

Defendant. Plaintiff is the one who introduced the parties who consummated the

sale. The Defendant learned from the Plaintiff that Root was a prospective

purchaser with an interest in the Florida market. Plaintiff arranged for Root to tour

the radio station and meet Defendant’s shareholders, and Plaintiff continued to

send Root financial information after the station tour. In essence, when Jernigan


                                           10
approached Root in June of 1997, Root was already familiar with WMXZ because

of the Plaintiff’s efforts. The district court also found that the Defendant was well

aware of the Plaintiff’s efforts to sell the station to Root, and even encouraged

these efforts by providing Plaintiff with updated financial data throughout 1996 to

send to Root. Defendant knew that Plaintiff was still soliciting prospective buyers

in the spring of 1997 and even executed a new agreement acknowledging the

Plaintiff’s representation of the Defendant in a proposed sale to Hochman. Thus,

the Plaintiff and Defendant had developed a long-term relationship, commencing

in November 1995 at the signing of an express contract and culminating in June

1997 with the offer by Root to buy WMXZ. In contacting Root directly,

Defendant used its knowledge of Root, gained from the Plaintiff, and thus,

accepted the benefit conferred upon it by the Plaintiff.

       Plaintiff phoned Defendant early in the Defendant’s negotiations with Root

and demanded to participate on the basis that Plaintiff had introduced the parties.

Rebuffed by the Defendant, Plaintiff sent a letter confirming its desire to

participate in the negotiations.9 Consequently, we are left with but one conclusion,

and that is that Plaintiff was intentionally excluded.



       9
          We make one final note that the record overwhelmingly supports these facts as found
by the district court. In fact, the Defendant does not contest these facts.

                                              11
12
             III.   CONCLUSION

      In conclusion, we find no reversible error with the district court’s conclusion

that it would be inequitable for the Defendant to retain the benefit of Plaintiff’s

services without compensation because Plaintiff provided services to the

Defendant that made the sale of WMXZ possible.

      AFFIRMED.




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