vs. ) CASE NO. 78-892
Respondent. )
A hearing was held in the above captioned matter, after due notice, in Miami, Florida, on November 14, 1978, before the undersigned Hearing Officer.
For Respondent: Richard M. White, Sr., Esquire
Whether Respondent's registration as a licensed real estate salesman should be revoked or the licensee otherwise disciplined for alleged violation of Section 475.25(1)(a), Florida Statutes, as set forth in the Administrative Complaint, dated April 27, 1978.
The Administrative Complaint alleges generally that Respondent "has been guilty of breach of trust and concealment in a business transaction" in violation of subsection 475.25(1)(a), Florida Statutes, on June 27, 1977, at Miami, Florida, by failing to transmit an offer to purchase residential property listed with her firm for sale by Brian M. Foley and Leslie W. Foley, his wife.
Respondent Nelly Dijkman is now and was during the year 1977 registered with the Florida Real Estate Commission as a broker/salesman employed by Cousins Associates, Inc., 5830 Southwest 73rd Street, South Miami, Florida. (Stipulation)
On January 14, 1977, Brian M. Foley and his wife, Leslie W. Foley, executed a listing agreement with Cousins Associates, Inc., South Miami,
Florida, for the sale of their residence located at 7740 Southwest 143rd Street, Miami, Florida. The exclusive listing agreement was executed by Respondent on behalf of Cousins Associates, Inc., and provided for a three month period in which that firm would have the exclusive right to sell the property for a price of $87,500.00 at a commission of 6 percent of the selling price. It also provided that the realtor would have the property placed in multiple listing with the Kendall-Perrine Real Estate Computer Service, Inc., and that any sales derived from co-brokerage would be subject to an equal division of the real estate commission. Respondent had shown rental property to the Foleys prior to their purchase of the property which was the subject of the listing agreement.
She also showed them prospective properties for purchase for some time prior to January 1977 and continued to do so during succeeding months. The listing agreement was renewed on May 10, 1977, for another three months with a selling price of $84,500.00. On that date, the parties also executed an agreement to place the property in the multiple listing service of the Coral Gables Board of Realtors. (Testimony of B. Foley, Petitioner's Exhibit 2.)
During the period January-June 1977, Respondent showed the Foleys approximately 20 houses that were for sale in the area. On June 26, 1977, they made a written offer on property located at 6450 SW 92nd Street, Miami, Florida, and placed $500.00 in escrow with Respondent as a deposit. On the same date, Rosalie Kotok, a broker with Sunniland Realty, and Howard Richards, made an offer to purchase the Foley property for $77,000.00. The selling price of the property had been lowered by the Foleys to $79,900.00 on June 19th. The offer was made on behalf of Kotok and Richards through an associate with Sunniland Realty, Ruth Hanrahan. Mr. Foley advised Respondent that he would not sell the house for less than $79,000.00 and asked her to transmit the counteroffer to the prospective purchasers. On June 27 Respondent transmitted Foley's counteroffer of $79,000.00 and Kotok increased the offer to $78,000.00. Respondent told Mr. Foley of this offer by telephone that afternoon and he declined to reduce his asking price of $79,000.00. Respondent then obtained authorization from her broker, Jane C. Cousins, to reduce their share of the real estate commission
$1,000.00 in order to effect the sale, based on the Foleys' "cooperation to work with us to purchase another home." Mr. Foley accepted this arrangement for the sale of the house on June 27. The sales purchase agreement with Kotok and Richards reflected execution by the Foleys on June 28, 1977. They executed an agreement, dated June 29, 1977, to purchase the house on which they had made the June 26 offer. (Testimony of Respondent, Cousins, B. Foley, Petitioner's Exhibit 2, Respondent's Exhibits 2-4.)
On the morning of June 27, John P. Marangos, a broker/salesman registered with South Dade Realty, Inc., called Respondent at her home and told her he had a "hot prospect" to show the Foley house. Respondent told him that there was a contract being negotiated at that time on the property, but that he could certainly show the house because of the property, but that he could certainly show the house because of the possibility that the pending deal might not materialize. She left the key to the Foley house in her mail box for Marangos to pick up. About twenty minutes later, Marangos came back and was not responsive when Respondent asked him how his clients had liked the house. Respondent then told him that she had several other properties that they might be interested in and he said that he would consider showing them on another day. (Testimony of Respondent.)
About a week after he had sold his home, Mr. Foley received a telephone call from an unknown person from South Dade Realty, Inc., who told him that Marangos had wanted to buy his house and had made an offer of purchase. Foley called Marangos who allegedly told him that he had informed Respondent that he
had a written contract for $78,900.00 on the Foley house, but that Respondent had told him that the house was sold. Foley testified that he then asked Respondent about the offer and she told him that it was not her duty to inform him of any other contract. He further testified that about a week after his initial conversation with her, Respondent told him that she did, in fact, have an offer from Marangos but did not want to present it because he had a very bad reputation for making offers on houses and not following through. He also testified that in his conversations with Respondent, she told him that she was aware of the amount of the offer made by John Marangos but that she did not pay any attention to it because he had a bad reputation.
In contrast to Foley's testimony, Marangos testified that he and his wife had looked at the Foley house on June 27 after obtaining the key from Respondent. They decided to make the purchase in their own behalf and he therefore returned to his office, wrote a contract by hand, plus a check for
$5,000.00 as a deposit on his bank account. He then called Respondent to tell her that he would like to present a contract on the house and she told him that a contract was being negotiated on the property at the time. She also allegedly told him that the sellers had until six o'clock that evening to respond to the pending offer and that she did not want to confuse the issue by having all kinds of contracts coming in. He testified that he called her that evening and she told him that the house was sold. Although Marangos' testimony confirmed Foley's version that his offer was for $78,900.00, he denied telling Respondent the amount of his offer or that it was in his own behalf. He further testified that one-half of the real estate commission would go to his firm if his offer had been accepted. He denied talking to Respondent when he returned the Foley key and said that he had merely put it in her mail box. Marangos testified that after Respondent told him the house had been sold, he threw away the contract and check. Although he was not sure whether there was $5,000.00 in his checking account on June 27, he testified that the check would have been good because he had often transferred money from his savings account to cover the amount of the check. He did not enter the $5,000.00 on his check stubs because he customarily carried several checks around while his wife retained the check book for entry therein at a later time.
Respondent, on the other hand, testified that after she heard from Foley as to the Marangos offer, she talked to Marangos and told him that she understood he had presented a contract on the house to Mr. Foley. Marangos responded that Foley had been calling him. Respondent then asked him how he was doing with his hot prospect and he said, "Well, Nelly, those hot prospects were myself and my wife." In view of the contradictory nature of the foregoing testimony and the lack of documentary evidence, it is found that Petitioner failed to establish the fact that an offer to purchase the Foley property was communicated to Respondent by Marangos on June 27, 1975, or at any other time. (Testimony of Respondent, Foley, Deposition of Marangos, Petitioner's Exhibit 1.)
CONCLUSIONS OF LAW
Petitioner's Administrative Complaint is predicated solely on the allegation that Respondent was "guilty" of breach of trust and concealment in a business transaction in violation of subsection 475.25(1)(a), Florida Statutes, by failing to communicate a higher offer to purchase the property of her clients than the offer made by the eventual purchasers.
It is considered that if Petitioner had established the above allegation, it could reasonably be viewed as a violation of the statutory
provision alleged in the complaint. However, as heretofore found, the evidence failed to show that such an offer was in fact made on the property. Even if a bona fide offer of $78,900.00 had been presented to Respondent for submission to the sellers, as alleged, it is inconceivable that the offer would not have been conveyed to them. This is so because it represented a $900.00 increase over the existing offer of $78,000.00 and would not have required Cousins Associates to reduce its commission by $1,000.00 in order to effect the sale. Both contracts would have involved a split of commission between the selling and listing brokers. Further, under the actual circumstances, the Foleys received their full asking price of $79,000.00 which exceeded the purported offer of $78,900.00 of Marangos. Accordingly, it is concluded that Petitioner has failed to establish its allegation and the charges against Respondent should be dismissed.
Respondent objected to the receipt into evidence of the deposition of John Marangos on the basis that it was unsigned and that Marangos had not waived the formalities of reading and signed the deposition, nor had the Respondent. However, pursuant to Florida Rule of Civil Procedure 1.330(d)(4), the technical deficiencies are considered waived by Respondent's failure to move to suppress the deposition with reasonable promptness after such defects with due diligence might have been ascertained. The deposition was taken at the instance of Respondent on September 8, 1978, was transcribed by the court reporter on September 14, 1978, and no effort was made by Respondent to cure the obvious defect prior to the hearing which was held on November 14, 1978.
That the Administrative Complaint against Respondent Nelly Dijkman be dismissed.
DONE AND ENTERED this 21st day of December 1978 in Tallahassee, Florida.
THOMAS C. OLDHAM
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December 1978.
Richard M. White, Sr., Esquire Suite 100
