STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1366

)

DOROTHY CICCARELLI and ) MARJORIE P. MOREAU, (PD #3503) )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on January 17, 1980, in Ocala, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Florida Real Estate Commission (Board of Real Estate) against the Respondents alleging violation of Section 475.25(1), Florida Statutes, by failing to advise the seller of pen and ink changes in a contract for purchase and sale.

APPEARANCES

For Petitioner: Respondent John Huskins, Esquire

Department of Professional Regulation Tallahassee, Florida 32301

For Respondent: Harvey R. Klein, Esquire

333 North West Third Avenue Ocala, Florida 32670

Prior to commencement of the hearing Counsel for the Respondents moved to dismiss the complaint for failure to state a cause of action. This was granted, but Petitioner was given the opportunity to amend instanter. This was done by the filing of Petitioner's amended Paragraph 7(b) and an addition to the original complaint, as follows:

7(b) By purchaser Dudley's signing his name to the new changes, the document was thereby rendered a counter-counter offer. This counter-counter offer was not communicated to seller Wilson, and seller was not aware of the changes as to the table and benches until after the closing of the transaction.

FINDINGS OF FACT

1. Ciccarelli and Moreau are registrants with the Florida Real Estate Commission (Board of Real Estate), both holding registrations as saleswomen.

2. Ciccarelli and Moreau were the real estate salespersons who handled the transaction for the sale of a residence between Dessie Wilson, the seller, and Carl Dudley, the buyer. Darlene Becker, Wilson's daughter, also owned an interest in the property but was not an actual party to the negotiations between Wilson and Dudley as mediated by Ciccarelli and Moreau.

   
   

3. Ciccarelli and Moreau presented to Wilson the contract for sale and purchase containing Dudley's initial offer signed July 13, 1978. A copy of this contract was introduced as Exhibit 7. Wilson made a counter offer by interlineating and initialing certain terms in the contract on July 14, 1978, as indicated by her signature and date on Exhibit 2.

   
   

4. Dudley had returned to Fort Myers, Florida, where he was living, and Ciccarelli and Moreau communicated Wilson's counter offer to him by telephone July 18, 1978. Dudley made a counter-counter offer in which he accepted the cash terms proposed by Wilson but included the cement table and benches described in Paragraph 1(c) of the contract in the purchase. The table and benches had been stricken and initialed by Wilson in her offer. Ciccarelli and Moreau annotated the contract to reflect the inclusion of these items in the sale by adding "OK for cement table and benches" to Paragraph 1(c). This contract was not initialed by Dudley before presentation to Wilson because Dudley was in Fort Myers. See Exhibit 9.

   
   

5. Ciccarelli and Moreau presented the contract, Exhibit 9, to Wilson, who accepted the terms orally. Ciccarelli and Moreau then sent the contract to Dudley by the letter dated July 18, 1978, Exhibit 4. This letter advised Dudley to initial the contract's changes to include the cement table and benches. Dudley did so and returned the contract to Ciccarelli and Moreau, who then presented the contract to Wilson's daughter, Darlene Becker. Becker executed the contract, Exhibit 9, after it was returned.

   
   

6. The transaction closed afterward, and a conveyance of the property and payment were exchanged. The closing was attended by Dudley and Wilson, and no objection to the terms of the contract was raised by either party. After closing a controversy arose between Wilson and Dudley concerning the transfer of the cement table and benches. Wilson returned to Dudley the table and benches which she had removed.

   
   

7. Paragraph X of the general provisions of the contract provides that the buyer may request personal property be conveyed by absolute bill of sale.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Real Estate Commission (Board of Real Estate) charges Ciccarelli and Moreau with violation of Section 475.25(1)(a), Florida Statutes; specifically alleging that Ciccarelli and Moreau are guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device or breach of trust. The facts do not demonstrate any violation of the provisions specifically alleged. The Board of Real Estate also argues that Ciccarelli and Moreau were guilty of violation of Section 475.25(1)(a), supra, by culpable negligence, in essence amending its complaint to conform to the evidence presented that Ciccarelli and Moreau failed to obtain Wilson's initials on the provision including the table and benches in the contract. While not a part of the original complaint, the nature of this allegation does not alter the factual situation but the legal contentions based on those facts. The Respondents were on notice of the factual allegations, and their rights to respond to the legal issues raised by the charge of negligence are protected by the opportunity for

   the Respondents to file their legal briefs after the conclusion of the hearing in response to the Petitioner's brief.

   
   

9. The facts reveal that the re-inclusion of the table and benches in the contract for sale was not initialed by Wilson and was initialed by Dudley after presentation of the contract to Wilson. The issue presented on the Board's alternate theory is whether the registrants' failure to have this change initialed by the seller constitutes culpable negligence. Culpable negligence in Florida is a degree of negligence evidencing a gross disregard of the duty to others, or reckless conduct. The failure to have Wilson initial the contract would be ordinary and not culpable negligence. Further, the transaction closed, and both parties to the contract were present and participated in the closing. No question was raised by Wilson concerning the contract for sale, Exhibit 9, and the terms in the contract concerning transfer of the table and benches. No evidence was presented that the buyer requested the personal property be conveyed by a bill of sale pursuant to Paragraph X of the contract for sale.

   The facts reveal that Dudley initialed the contract for sale after its presentation to Wilson and accepted the contract without Wilson's initials on the amendment. Dudley waived any rights under the contract for sale by forgoing a bill of sale for the personal property at closing and accepting the contract for sale without Wilson's initials. Under these facts, Wilson had no legal obligation to transfer the table and benches to Dudley. Wilson's return of the table and benches was a gratuitous act not required under the contract for sale or the terms of the closing.

   
   

10. Even if one finds a duty owed to Dudley by Ciccarelli and Moreau, Dudley was aware or should have been aware of the deficiency in the contract for sale, having initialed the contract after its presentation to Wilson. There was no misrepresentation to Dudley, and any mistake as to the legal effect of the contract is solely attributable to Dudley's own failure to obtain appropriate legal advice.

    
    

11. It is inherent that for there to be any actionable negligence there must be a duty, a failure to perform that duty, and an injury arising out of the failure to perform the duty. Under the terms of the contract for sale, the rights of the buyer after the closing to personal property would be determined by the terms of the bill of sale. Even if one could conclude that Ciccarelli and Moreau were grossly negligent, there is no evidence of any damage arising out of the failure to have the amendment initialed. Wilson's return of the table and benches was a gratuitous act, and Dudley, having received the table and benches, received more than he had contracted to receive. In the absence of any damage and in the absence of any gross negligence or reckless conduct, Ciccarelli and Moreau are not guilty of culpable negligence in violation of Section 475.25(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the licenses of Ciccarelli and Moreau.

DONE and ORDERED this 17th day of March, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 1001, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1980.

COPIES FURNISHED:

John Huskins, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Harvey R. Klein, Esquire

333 North West Third Avenue Ocala, Florida 32670

Docket for Case No: 79-001366

Orders for Case No: 79-001366