Boyle v. Missouri Real Estate Commission

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 537 S.W.2d 603
• Parties: Daniel R. BOYLE, Jr., Appellant, v. MISSOURI REAL ESTATE COMMISSION and Missouri Administrative Hearing Commission, Respondents. 26858.
• Court: Missouri Court of Appeals

Page 603

537 S.W.2d 603

Daniel R. BOYLE, Jr., Appellant, v. MISSOURI REAL ESTATE COMMISSION and Missouri Administrative

Hearing Commission, Respondents.

No. KCD 26858.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied June 1, 1976.

Richard A. Erickson, John B. Ewing, Jr., Kansas City, for appellant.

John C. Danforth, Atty. Gen., Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, for respondents.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which affirmed revocation of real estate broker's license. This court may not substitute its judgment on the evidence for that of the respondents and may not set aside the decision, unless it is not supported by competent and substantial evidence on the whole record, or it is not authorized by law, is arbitrary, capricious, or involves an abuse of discretion. § 536.140, RSMo 1969; Missouri Real Estate Comm. v. Steger, 509 S.W.2d 47, 49(1) (Mo. banc 1974). Affirmed.

On June 17, 1969, Mr. and Mrs. Leslie Sims went to the office of Daniel R. Boyle, Jr., a real estate broker, at 1800 East 75th Street, Kansas City, Missouri. They met Daniel R. Boyle, Jr., who directed his salesman, Augusta John Collins, to show them a house owned and offered for sale by Mr. and Mrs. Stanley Katz. Mr. Collins showed Mr. and Mrs. Sims a house at 1631 East 77th Terrace. After viewing the house at 1631 East 77th Terrace, Mr. and Mrs. Sims and Mr. Collins returned to the Boyle Realty office. Mr. Collins introduced them to another Boyle agent, David Graham, who had Mr. and Mrs. Sims execute an offer to purchase and a verification of deposit. Eventually, Mr. and Mrs. Sims paid Mr. Boyle, through his agent, Augusta John Collins, $50 for a 'credit check.' ¹ They gave $50 in cash to Mr. Collins at their home on Askew for which they received a receipt. Mr. Collins indicated to Mr. and Mrs. Sims that evening at their home on Askew that he would notify them concerning the outcome of the credit check. On July 20, 1969, the offer to purchase expired.

Approximately a week after June 17, 1969, Mr. Collins informed Mr. and Mrs. Sims that their credit was approved for the purchase of the house at 1631 East 77th Terrace. At that time, Mr. and Mrs. Sims told Mr. Collins that one of their boys had been injured and Mrs. Sims intended to quit work to provide adequate supervision for her children. They also advised Mr. Collins they no longer wanted to buy 1631 East 77th Terrace, and requested the return of their $50 deposit. They were told they would have to see Daniel R. Boyle, Jr.

Mr. and Mrs. Sims continued to look for a larger house. On June 30, 1969, they signed a real estate sales contract for the purchase of a house at 1301 East 59th Street, Kansas City, Missouri, owned by Mr. and Mrs. Marion McCord. On or about July 6, 1969, Mr. and Mrs. Sims received a warranty deed executed by Mr. and Mrs. McCord for the property formerly owned by the McCords on 59th Street. The warranty deed for 1301 East 59th Street was recorded on July 10, 1969. ²

Mr. and Mrs. Sims made several calls to Boyle Realty to obtain the return of their $50. Approximately a month after they were first in the Boyle Realty office, they made arrangements with Mr. Boyle to obtain the return of their $50 at the Boyle Realty office, and went to Boyle Realty on a Saturday. Daniel R. Boyle, Jr., presented them with some 'release papers' ³ to sign to obtain the return of their $50 deposit. After signing such papers, Mr. and Mrs. Sims were given the $50 in cash by Mr. Boyle. They left the Boyle Realty office and never returned.

On or about August 8, 1969, Mr. and Mrs. Sims moved into the house at 1301 East 59th Street. Shortly thereafter, they rented their house at 4508 Askew to Floyd and Linda Wesley who occupied the house from the time Mr. and Mrs. Sims moved out until the middle of June, 1971. Mr. and Mrs. Sims had no knowledge of recording of any papers on the property at 1631 East 77th Terrace until they were so advised by a Mr. Hammett on June 23, 1970, who gave them a copy of a foreclosure notice on that property from the Daily Record. On July 24, 1970, the trustee's deed was recorded on the property located at 1631 East 77th Terrace.

On June 24, 1969, the Veterans Administration listed for sale property owned by it at 1523 East 76th Street, and placed a notice in the Kansas City Star notifying the public of the availability of the property. Properties of this type normally are listed for six days and all offers received by the Veterans Administration during the 6-day period are held together for selection of the most acceptable offer. Any real estate broker is eligible to submit a bid or a contract to the Veterans Administration on such a repossessed property.

In June of 1969, Mrs. Richard George (Sirrena) Roberts went to Boyle Realty for assistance in finding a home to purchase. Mrs. Roberts had seen a house on 76th Street which was posted as a Veterans Administration repossessed home. Mrs. Roberts spoke with Daniel Boyle's wife, Frances Boyle, and determined from Mrs. Boyle that Boyle Realty had a 'listing' on the property. Mrs. Boyle then directed Boyle's agent, Augusta John Collins, to show Mrs. Roberts the Veterans Administration repossessed house on 76th. After viewing the house on 76th Street with Mr. Collins, Mrs. Roberts returned to Boyle Realty with Mr. Collins. Mrs. Roberts discussed with Mrs. Boyle the financing of the 76th Street property in the event that Mrs. Roberts's husband decided to buy it. Mrs. Boyle requested Mrs. Roberts to bring Mr. Roberts's separation and discharge papers to the office.

The following day Mrs. Roberts took her husband's discharge and separation papers to Boyle Realty and presented them to Mrs. Boyle. Mrs. Boyle took the papers, made photostatic copies, and returned them to Mrs. Roberts. On the same day, or shortly thereafter, Mrs. Roberts signed a Veterans Administration contract of sale for the property located at 1523 East 76th Street, took the Veterans Administration contract of sale home for her husband to sign, and returned it to Mrs. Boyle. Mrs. Roberts waited about a week and then went to Boyle Realty to determine whether she had been the successful bidder on the 76th Street property. At that time, she was informed that the house on 76th Street was not available to her. Sometime prior to learning of the unavailability of the 76th Street property, Mr. and Mrs. Roberts tendered a $650 check dated July 8, 1969, to Boyle Realty. The check was deposited by Boyle Realty on or about July 10, 1969. Mr. and Mrs. Roberts never received return of the $650.

On the same day that Mrs. Roberts learned that the 76th Street property was not available to her, she was informed by Mrs. Boyle that there was a house available at 1631 East 77th Terrace. Mrs. Roberts expressed an interest in this house and Mrs. Boyle directed Augusta John Collins to show it to her. After viewing this house, Mrs. Roberts went home to discuss the matter with her husband.

Several days later, around July 28, 1969, Mrs. Roberts returned to Boyle Realty and discussed with Frances Boyle the price of the house and available financing. After this discussion, Mrs. Roberts told Mrs. Boyle that they would take the house at 1631 East 77th Terrace.

Later that same week, Mrs. Roberts was called by Daniel R. Boyle, Jr., who asked if she was still interested in the property on 76th Street. Mrs. Roberts replied that she was interested in the house on 76th Street. Mr. Boyle told Mrs. Roberts that Boyle Realty would begin to process the loan and that he would hear one or two days later concerning the Roberts's loan.

Mrs. Roberts waited three days without hearing from Boyle Realty. The first part of August, she went to Boyle Realty and talked with Daniel R. Boyle, Jr., about the 76th Street property. Mr. Boyle told her that her loan had 'fallen through.' He asked Mrs. Roberts if she was still interested in the property at 1631 East 77th Terrace. Mrs. Roberts and Mr. Boyle had a discussion about when the Robertses could occupy the house; Mr. Boyle indicated a few days. Mrs. Roberts and Daniel R. Boyle, Jr., also discussed the Robertses buying the stove that was in the property at 1631 East 77th Terrace. Mr. Boyle told her that she could purchase the stove for $100. Mrs. Roberts asked Mr. Boyle about the payments. He told her that they were about $124 per month and that Mrs. Roberts would receive a payment book in the mail along with a warranty deed on the property. Mr. and Mrs. Roberts did not sign any documents at any time in connection with their 'purchase' of the property at 1631 East 77th Terrace.

After this meeting at the Boyle Realty office, Mrs. Roberts returned home. Until the time the Robertses moved into the property at 1631 East 77th Terrace, Mrs. Roberts had several conversations on the telephone with either Frances Boyle or a Mr. Ortega who worked for Boyle Realty. On August 15, 1969, Mr. and Mrs. Roberts went to Boyle Realty intending to sign whatever documents were necessary to obtain title to the property at 1631 East 77th Terrace. When they arrived at Boyle Realty, Daniel R. Boyle, Jr., and Frances Boyle were present. Mr. Boyle told Mr. and Mrs. Roberts that it was not necessary for them to sign any papers, that 'it was all taken care of.' On August 15, 1969, Boyle Realty received a check from Missouri Valley Investment Company for its commission on a 'sale' of 1631 East 77th Terrace to Mr. and Mrs. Sims.

Later that day, after securing a key to 1631 East 77th Terrace from Frances Boyle, Mr. and Mrs. Roberts returned to 1631 East 77th Terrace and purchased the stove in the house from Boyle Realty. They gave a check, dated August 15, 1969, for $100 to Augusta John Collins.

Approximately one to two weeks after the Robertses moved into the property at 1631 East 77th Terrace, they...