
    HARRY E. ROBBINS ASSOCIATES, INC., a Florida corporation, Appellant, v. Arthur SUDBURY, Appellee.
    No. 84-823.
    District Court of Appeal of Florida, Second District.
    March 8, 1985.
    Rehearing Denied April 15, 1985.
    Ronald C. Morgan and Robert E. Turffs of Morgan & Tjaden, Sarasota, for appellant.
    Jack Wm. Windt, Sarasota, for appellee.
   PER CURIAM.

Appellee Arthur Sudbury, plaintiff below, a licensed real estate salesman of Harry E. Robbins Associates, Inc., recovered a judgment for $12,500 against Robbins, defendant below. The judgment represented Sudbury’s one-half share of a $25,000 commission paid to Robbins by the owner of the “Hillview Property,” which was sold to John Saunders. Sudbury’s claim was asserted and tried on the basis that he was the procuring cause of the sale to Saunders.

The case was heard by the court in a nonjury trial. Our examination of the record reveals that there is substantial, competent evidence to support the trial court’s judgment; however, one aspect of the case raised by Robbins merits discussion. Robbins argues that the trial court erred in deeming its answer to Paragraph 7 of the Amended Complaint as an admission that Sudbury was the procuring cause of the sale.

Sudbury’s Amended Complaint alleged in Paragraph 7:

Plaintiff was working with a John Saunders on the purchase of two properties which he did, in fact, purchase and Plaintiff was the procuring cause of the sale.

Before trial defendant Robbins moved to strike that paragraph as being irrelevant and immaterial. The court denied the motion. Thereafter, Robbins’ Answer to Paragraph 7 of the Amended Complaint alleged:

Defendant admits that Plaintiff was involved in the sale of two properties involving John Saunders and that Plaintiff was deemed the procuring cause of the sale of same. Defendant would further show the court that all the allegations of paragraphs [sic] 7 are irrelevent [sic] and immaterial to this cause of action.

At the beginning of the trial, the court observed that Robbins admitted Sudbury was the procuring cause of the sale; therefore, the trial judge stated that- it was unnecessary for the plaintiff to establish this fact. Counsel for Robbins disagreed and moved to amend the answer, but the court ruled it was too late. Nevertheless, throughout the trial the court heard extensive evidence on the issues involved, including the question of whether Sudbury was the procuring cause of the sale of the Hill-view Property to Saunders. Later in the trial, before Harry E. Robbins, president of the defendant corporation, was called as an adverse witness by Sudbury, defense counsel explained to the judge that the admission in Robbins’ answer related to properties other than the Hillview Property involved in the suit.

At the close of the trial, the court directed that, in lieu of oral arguments, counsel furnish the court memoranda on the law and copies of cases cited. Counsel submitted memoranda, which focused largely on the law concerning procuring cause on the sale of real estate. The trial judge later entered final judgment in favor of Sudbury, awarding him one-half of the commission.

In view of the explanation of counsel for Robbins, we think it was error for the trial judge to have observed that the pleadings established procuring cause. However, our review of the transcript persuades us that such ruling was harmless error. As noted, the trial judge allowed the parties to present extensive evidence concerning the procuring cause of the sale as well as memoranda discussing this issue. Moreover, the trial judge indicated in the final judgment that he heard the testimony and evidence presented and considered the exhibits and memoranda in arriving at his decision.

On cross-appeal appellee asks that we order the trial court to amend the judgment to include prejudgment interest in its award of $12,500 to plaintiff. We find no request was made for prejudgment interest in the plaintiff’s pleadings; therefore, we find no error in the trial court’s failure to include it in the final judgment.

Accordingly, we affirm the judgment of the trial court.

SCHEB and DANAHY, JJ., concur.

GRIMES, A.C.J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

Harry E. Robbins Associates, Inc., a real estate brokerage firm, originally had a listing under which it would be paid a $50,000 real estate commission for selling the Hill-view Property. Arthur Sudbury, one of Robbins’ salesmen, who had previously been involved in real estate transactions with John M. Saunders, talked with him about the Hillview Property. Saunders ultimately purchased the property through Robbins’ office at a price below the listing. Saunders, who was a licensed real estate salesman for another brokerage firm, was treated by Robbins as having co-brokered the sale, thereby reducing the commission to $25,000. Thus, there were two issues in the lawsuit: (1) whether Sudbury was the procuring cause of the sale, and if so, (2) whether, as Robbins’ salesman, he was entitled to one half of a $50,000 commission or one half of a $25,000 commission.

As pointed out in the majority opinion, the trial court was under the erroneous impression that when Robbins admitted the allegations of paragraph 7 of the amended complaint, this constituted an admission that Sudbury was the procuring cause of the sale of the Hillview Property. In fact, early in the trial the judge observed that he did not see why the parties were concerned with certain evidence because Robbins had admitted that Sudbury was the procuring cause. Robbins’ attorney objected to the court’s interpretation of the pleadings but to no avail. He then stated that if that was the court’s interpretation, he wished to amend his answer to paragraph 7. The court denied the motion as untimely.

There was competent substantial evidence that Sudbury was the procuring cause of the sale. There was also competent substantial evidence that he was not the procuring cause. However, because of his erroneous interpretation of the pleadings, the judge had already decided that Sudbury was the procuring cause. The result is analogous to a jury having been given a peremptive instruction on a key factual issue. If the instruction should not have been given because of conflicting evidence on the issue, the case must be reversed for a new trial even though the jury could have properly arrived at the same result if the peremptive instruction had not been given.

The majority appears to feel that the error is harmless since the judge continued to entertain evidence, some of which bore on the issue of procuring cause. However, even if the procuring cause was no longer in dispute, it was necessary for him to hear evidence on the second issue of whether Sudbury was entitled to receive $25,000 or $12,500. There is nothing in the record to suggest that simply because the judge permitted the parties to introduce whatever evidence they pleased, he continued to have an open mind on the issue of procuring cause.

I would reverse for a new trial.  