ex rel. Charles S. Samen, )
vs. ) CASE NO. 75-1988
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on February 11, 1976 at Miami, Florida.
For Petitioner: Louis B. Guttmann III, Esquire,
For Respondent: Richard B. Adams and Jack Coe (Futrell and 9th floor Concord Building
By Administrative Complaint filed November 5, 1975, the Florida Real Estate Commission seeks to revoke or suspend, or otherwise discipline the Futrell Company, as a corporation broker, and Eleanor Van Treese and Mary Capps as salespersons for the Futrell Company on the grounds that, after obtaining a listing contract from the seller of a specified residence, they subsequent thereto failed to deliver to him an offer to purchase said property received from a bona fide purchaser in violation of a duty imposed by the terms of the listing contract. This is charged as a violation of 475.25(1)(a) Florida Statutes.
On September 19, 1974 Eleanor Van Treese, as agent for Futrell Company, obtained a listing on a residence located at 12250 S. W. 67th Avenue in Miami, Florida from Newton J. Mulford and Elizabeth N. Mulford, the record owners of said property. A copy of this sales management agreement was admitted into evidence as Exhibit number 1. Thereon was shown one existing mortgage with Coral Gables Federal, with a balance of approximately $47,500.
At the time the Mulfords executed Exhibit number 1, a second mortgage in the amount of some $25,000 was also recorded against this property and foreclosure proceedings had been instituted. The holder of the second mortgage was James V. O'Connor.
George Bender, a Miami attorney, was aware that foreclosure proceedings had been instituted against this property prior to the time that Futrell obtained the listing agreement. He called Mulford to inquire about purchasing the property, but apparently his offer was not high enough to interest Mulford.
After the Futrell sign was placed in front of the house, Mrs. Capps met Mrs. George Bender at a social affair. When Mrs. Bender learned that Mrs. Capps was a real estate salesperson working for Futrell Company, she asked if she would show her the Mulford house. In late November or early December Mrs. Bender was shown the house and thereafter her husband also was shown the premises.
On January 2, 1975 a final judgment of foreclosure was entered in the Circuit Court of the Eleventh Judicial District of Florida. Therein the court found that James V. O'Connor was the holder of a second mortgage on the premises in the principal sum of $25,000 together with interest accrued thereon from August 15, 1970 in the amount of $12,976.34. The court also awarded O'Connor
$500 as a reasonable attorney's fee. The judgment further provided that the defendant, O'Connor, or any of the parties to the suit, may become bidders for purchase of the premises at the forthcoming sale thereof; and that the court would retain jurisdiction of the cause for the purpose of entertaining a Motion for Deficiency Judgment and "settle all other questions under the proceedings not settled by this order."
O'Connor thereafter called Eleanor Van Treese to advise her that he had obtained the foreclosure order and that he would bid on the property when the judicial sale was held on the 15th of January. He further advised that he was anxious to turn over the property and get his money out of it.
Mrs. Van Treese telephoned Mary Capps on January 10, 1975 to advise her of the information she had received from O'Connor. Not understanding the legal implication thereof Mrs. Capps decided that she should come to Mrs. Van Treese's house and the two of them talk to O'Connor regarding the property. This was done; and, with the two salespersons on the telephone with O'Connor, he read to them the judgment that he had obtained; advised them that he would be bidding on the property on January 15th and expected to purchase same; and that he would consider offers to purchase the property from him.
Mrs. Capps, that same evening, called Mrs. Bender to advise that O'Connor was going to bid on the property on January 15th and was interested in selling the property. When Mr. Bender came home, Mrs. Bender and he discussed the purchase of the property and decided to submit an offer. Mrs. Bender so advised Mrs. Capps. The following morning, on Saturday, January 11th, Mr. and Mrs. Bender sent to the Futrell Company office and Mrs. Capps typed an offer to Purchase the property which the Benders executed. This was the deposit receipt and sales purchase agreement dated January 11, 1975 admitted into evidence as Exhibit number 2.
While at the office Mr. Bender called another attorney, William A. Friedlander, who he considered to be more knowledgeable in real estate transactions than himself, for legal advice in the premises. Friedlander
advised him that it was proper to submit an offer to O'Connor although O'Connor did not have present title and was therefore unable to execute a valid deed for the property until after he purchased the property at the foreclosure sale.
Friedlander considered the contract would be based upon a condition subsequent, viz: the acquisition of title by O'Connor, and such contract would be enforceable. Friedlander was also aware that several judgments had been entered against Mulford and that Mulford would be unable to execute a contract and deliver clear title at the amount Bender was offering. This was so because the sum of first mortgage, second mortgage, real estate commission, and other judgments that had been entered against Mulford exceeded the amount Bender was offering to pay for the residence. He advised Bender that, if the foreclosure suit had joined all necessary parties, the deed obtained by O'Connor at the foreclosure sale would be good and O'Connor would be able to give a good and merchantable title. He further advised Bender that a contract with Mulford would have been futile due to the amount of the offer and unworkable due to the short period of time before the foreclosure sale in which to obtain the cash necessary to provide Mulford sufficient funds to pay off all his creditors and the mortgages.
At the time the Benders executed the contract for the purchase of the residence in question it was their intention that the offer be presented only to O'Connor.
Mary Capps presented this offer by the Benders (Exhibit 2) to O'Connor who accepted same on January 11, 1975. The $6,000 earnest money deposit was delivered by Mrs. Capps to the Secretary of the Futrell Company for deposit in the Futrell Escrow Account. No evidence was presented that the earnest money deposit has ever been refunded to the Benders or that they have requested this earnest money deposit to be refunded.
Mr. and Mrs. Mulford were not advised of the existence of the offer to purchase dated January 11, 1975 until long after O'Connor purchased the property at the foreclosure sale.
CONCLUSIONS OF LAW
Section 475.25(1)(a) Florida Statutes provides in part: "The registration of a registrant may be suspended
for a period not exceeding two years, or until
compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:
"Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in
any business transaction, in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or
by terms of a listing contract, written, oral, express or implied, in a real estate trans- action; "
Here there was no evidence of fraud or misrepresentation in this transaction. The only possible violation alleged was whether or not the Respondents herein violated a duty imposed upon them by law or by the terms of a
listing contract. From the evidence presented it is apparent that the Respondents were the holders of two listing contracts; the first in writing from the Mulfords, the second oral from O'Connor.
The evidence is clear and unequivocal that the offer to purchase submitted by the Benders was intended only to be presented to O'Connor. Accordingly it was presented to and was accepted by O'Connor.
The only question remaining is whether the Respondents, singularly or jointly, had a duty imposed upon them by law or by the terms of their contract with the Mulfords to present the Bender offer to the Mulfords. The intent of the parties to this offer is clear. The Benders made an offer only to O'Connor. They did not, and never intended to make an offer to Mulford. Accordingly Respondents had no offer that could be presented to Mulford.
From the foregoing it is concluded that Futrell Company, Eleanor Van Treese, and Mary Capps are jointly and severally not guilty of a violation of 475.25(1)(a) Florida Statutes as charged. It is therefore,
RECOMMENDED that the charges against the Respondents herein be dismissed. ENTERED this 2nd day of March, 1976, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
