Opinion
No. 79-697.
April 22, 1981.
Appeal from the Circuit Court, Palm Beach County, William C. Williams, III, J.
Peter S. Penrose of Bassett Penrose, Fort Lauderdale, for appellants.
Bennett S. Cohn and Frank B. Kessler of Law Offices of Bennett S. Cohn, Lake Worth, for appellee.
Defendants appeal a $2,695 final judgment entered after a nonjury trial. The judgment was in favor of plaintiff, a real estate broker. We affirm.
The parties entered into a contract for the sale of real estate. Within this contract was a provision that seller would pay broker a seven per cent commission based upon the listed sale price if seller revoked the agreement before it expired. The trial court, based upon adequate evidence, found as a matter of fact that the seller did revoke the agreement prior to its expiration. The court entered judgment for a commission based on the listed sale price.
On appeal the sellers argue the contractual provision was unenforceable because it was excessive and constitutes a penalty. Unfortunately, appellants did not raise this point before the trial court and we, therefore, cannot consider the issue. Nicholas v. First Interstate Development Corporation, 315 So.2d 238 (Fla. 4th DCA 1975). Since appellants failed to preserve the point, we have no alternative other than to affirm. We conclude that all other issues raised are also without merit and the final judgment is therefore affirmed.
AFFIRMED.
MOORE, BERANEK and GLICKSTEIN, JJ., concur.