R.C. Hilton Associates, Inc. v. Stan Musial and Biggie's Inc., Suncoast International Inns, LTD., Edward J. Stern, Mariemont Investment, E.J. Stern, Inc., 702 F.2d 907, 11th Cir. (1983)

702 F.
2d 907
R.C. HILTON ASSOCIATES, INC., Plaintiff-Appellant,

v.
STAN MUSIAL AND BIGGIE'S INC., Suncoast International
Inns,
Ltd., Edward J. Stern, Mariemont Investment, E.J.
Stern, Inc., Defendants-Appellees.
No. 82-5041.
United States Court of Appeals,

Eleventh Circuit.
April 11, 1983.
Wightman, Weidemeyer & Maynor, Carleton L. Weidemeyer, Clearwater,

Fla., for plaintiff-appellant.
Elihu H. Berman, Clearwater, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before GODBOLD, Chief Judge, RONEY, Circuit Judge, and
PITTMAN* , District Judge.
GODBOLD, Chief Judge:
A real estate broker, R.C. Hilton Associates, Inc., brought this action to recover
a commission on the sale of a hotel. Initially Hilton's agent visited the hotel to
determine whether it was for sale. An agent of Stan Musial & Biggie's, Inc.
(Musial), the owner, advised Hilton that the hotel might be for sale for $4.25
million, net to owner. Musial stated that it did not intend to pay any sales
commission and that Hilton would have to make arrangements for its
commission with the buyer. Hilton subsequently initiated discussions between
Musial and Edward Stern. After a short period of negotiations (in which Hilton
did not participate) Stern agreed to purchase the hotel for $4.12 million. No
commission was paid to Hilton.
Hilton brought suit against Musial and Stern in Florida state court. The
defendants removed the case to federal court based on diversity.
The complaint contains three counts: (1) a breach of contract action against
Musial; (2) a claim of tortious interference with a business contract against
Stern; and (3) an unjust enrichment claim against Musial for the value of
services rendered. The case was referred to a United States Magistrate acting as
a special master pursuant to Fed.R.Civ.P. 53. After a nonjury trial the
magistrate made findings of fact and conclusions of law and recommended that
judgment be entered against Hilton on all counts. The district court adopted and
confirmed the magistrate's findings and conclusions. We affirm.
The district court ruled that Hilton had neither an express nor implied contract
with Musial. Hilton argues that the district court's conclusion that no contract
existed is inconsistent with its findings of fact. The court found that Musial told
Hilton that "anything over $4.25 million is yours." Hilton contends that in
making this statement Musial agreed to pay a commission. To support this
contention Hilton relies on the court's statement that "since the sale price was
less than [$4.25 million] there is no basis for a claim predicated upon an
express agreement." According to Hilton, the court concluded that an
agreement would have existed had the price exceeded $4.25 million. This
argument, however, is expressly refuted in both the findings of fact and
conclusions of law where the district court explicitly stated that no contract
existed.
Hilton next argues that, even if no formal agreement existed, a broker is

entitled to recover a commission for services rendered in the sale of real estate.
6 the absence of any special agreement, when a seller places property with a
[I]n
broker for sale, he impliedly agrees to pay a customary commission to the broker.
7
Kerdyk v. Hammock Oaks Estates, Inc., 342 So.2d 833, 835 (Fla.App.1977).
The authorities cited by Hilton are inapposite. In the case before us Musial did
not place the property with Hilton for sale; Hilton obtained no listing. Also,
Musial explicitly informed Hilton that it did not intend to pay a sales
commission. "A broker cannot recover for his services unless they were
rendered at the express or implied request of his employer ...." City Builders'
Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77, 78 (Fla.1925); George G. Massey
& Assoc. v. Borgemeister, 297 So.2d 577 (Fla.App.1977). The finding of no
contractual liability should be affirmed.
Hilton seeks recovery from Stern for malicious interference with a "business
contract." The district court concluded: "Although a claim for tortious
interference may be based upon a contractual agreement which is not legally
enforceable, no recovery is allowed if there is no contractual relationship at
all." On appeal Hilton argues that the existence of a contract is not necessary in
order to recover for tortious interference with a "business relationship." Even
assuming that the court should have liberally interpreted Hilton's claim for
tortious interference with contract as a claim for tortious interference with
business relationship, see Smith v. Ocean State Bank, 335 So.2d 641
(Fla.App.1976), Hilton has failed to establish its right to recover.
10
To establish a claim for tortious interference with business relationship the

plaintiff must prove:the existence of a business relationship under which the
plaintiff has legal rights; an intentional and unjustified interference with that
relationship by the defendant; and damage to the plaintiff as a result of the
breach of the business relationship.
11
Fearick v. Smugglers Cove, Inc., 379 So.2d 400, 403 (Fla.App.1980).
12
Initially,
the broker had the burden of establishing an advantageous relationship with
the seller. A broker can not recover for his services unless they were rendered at the
express or implied request of his employer and a contract for services will not be
implied unless the vendor knows or has reasonable grounds to believe that they were
rendered with the expectation of receiving payment therefor.
13
Retzky v. J.A. Cantor Associates, Inc., 192 So.2d 24, 26 (Fla.App.1966). Hilton
failed to prove that its services were rendered at the express or implied request
of Musial. Having failed to establish an advantageous relationship with the
seller, Hilton's tort claim against Stern fails.
14
Hilton also seeks recovery from Musial under an unjust enrichment theory. The
district court denied relief, concluding:
15 Florida cases discussing broker's commissions state quite emphatically that a

the
broker is not entitled to a commission for his services unless there is either an
express contract, or one that is implied from the factual situation. The authorities
thus negate the theory of unjust enrichment as a basis for the recovery of a broker's
commission.
16
The parties did not cite, nor did our research reveal, any precedent inconsistent
with the district court's decision. Even assuming that a broker could recover
under an unjust enrichment theory, Hilton's claim would still fail. In Yeats v.
Moody, 128 Fla. 658, 175 So. 719, 720 (Fla.1937), the Florida Supreme Court
stated:
17is well settled that where services are rendered by one person for another which
It
are knowingly and voluntarily accepted, without more, the law presumes that such
services are given and received in the expectation of being paid for, and will imply a
promise to pay what they are reasonably worth.
18
In the present case Musial clearly informed Hilton that it did not intend to pay a
sales commission. Thus, Hilton's services could not reasonably be "given and
received in the expectation of being paid for ...."
19
AFFIRMED.
Honorable Virgil Pittman, U.S. District Judge for the Southern District of
Alabama, sitting by designation

R.C. Hilton Associates, Inc. v. Stan Musial and Biggie's Inc., Suncoast International Inns, LTD., Edward J. Stern, Mariemont Investment, E.J. Stern, Inc., 702 F.2d 907, 11th Cir. (1983)

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702 F.

R.C. HILTON ASSOCIATES, INC., Plaintiff-Appellant,

United States Court of Appeals,

Wightman, Weidemeyer & Maynor, Carleton L. Weidemeyer, Clearwater,

Hilton next argues that, even if no formal agreement existed, a broker is

To establish a claim for tortious interference with business relationship the

Fearick v. Smugglers Cove, Inc., 379 So.2d 400, 403 (Fla.App.1980).

15 Florida cases discussing broker's commissions state quite emphatically that a

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