Brod v. Jernigan, 7000

• Decision Date: 29 June 1966
• Docket Number: No. 7000,7000
• Citation: 188 So.2d 575
• Parties: Theodore BROD, Petitioner, v. M. V. JERNIGAN and Florida Real Estate Commission, Respondents.
• Court: Florida District Court of Appeals

Page 575

188 So.2d 575

Theodore BROD, Petitioner, v. M. V. JERNIGAN and Florida Real Estate Commission, Respondents.

No. 7000.

District Court of Appeal of Florida, Second District.

June 29, 1966.

Rehearing Denied Aug. 3, 1966.

Joseph E. Melendi, of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for petitioner.

Frank A. Wilkinson and Stanley A. Reese, Winter Park, for respondents.

PIERCE, Judge.

Pursuant to authority of the Florida Real Estate Commission, acting under Chapter 475 F.S., ¹ an information was filed with said Commission charging petitioner R T Brod in five counts with certain violations of said Chapter 475 relating to the carrying on of the privileged business of real estate broker. Upon an adjudication of guilt by the Commission under Counts 1 and 2, ² the Commission entered order suspending for a period of nine months the registration of petitioner as a broker under said Chapter 475. From said order of suspension, petitioner has applied to this Court for a writ of certiorari ³ to review and to quash the Commission's said order.

After the information was filed as aforesaid, petitioner, hereinafter called defendant, filed his answer thereto, denying any violation of Chapter 475 F.S., and also giving his affirmative version of the facts relating to each Count. The Commission thereupon appointed an Examiner to take testimony and report back to the Commission. Voluminous testimony and documentary evidence was thereupon adduced before the Examiner, who in due course filed his report with the Commission, containing all of the testimony and exhibits so adduced, together with his Findings and Conclusions, and recommending that the Commission find petitioner guilty under Count One and not guilty under Count Two. The Commission, which acted only upon the record of the proceedings before the Examiner, entered final order, adopting his Findings of Fact in toto, but also adjudging defendant guilty under Count Two as well as under Count One, and suspending defendant's registration for a period of nine months. This is the order now sought to be here reviewed.

Defendant contends before this Court that the Commission's order is not supported by competent, substantial evidence. The Commission argues to the contrary, contending that the evidence before the Examiner fully supports the findings and adjudication. In this connection it is noted that the Examiner's findings have no statutory presumption of correctness although he alone heard and observed the witnesses; while the Commission's findings of fact statutorily 'have the same force and effect as the findings of a general master in chancery', although nothing was before the Commission but the cold printed record. The quoted statutory presumption would seemingly presuppose that the Commission would personally hear the case. So ordinarily the question would recur: what weight would this Court give the findings of fact when adopted by the Commission merely by reference and upon the basis only of the printed record? The adjudicated cases are in hopeless confusion on this issue. ⁴ However, from our disposition of the case, the question becomes academic. We hold that both the Examiner and the Commission misapprehended the probative force of the evidence as to Count One, and that the allegations thereof were not proven by competent, substantial evidence.

Count One, after alleging that defendant was a real estate broker duly registered with the Commission, set forth the following:

'COUNT ONE

'(1) About the latter part of February, 1964, Johnnie J. Davis and wife, Alice E Davis, owners of a home at 1103 North Willow Avenue, Tampa, Florida, listed the home for sale with the defendant broker Brod. The selling price was set at $7800 with a down payment of $700; the property at the time being subject to an existing mortgage in the sum of approximately $3,164.00.

'(2) On March 10, 1964, the defendant induced Davis and wife to sign a contract to sell the home to Wesley Gregory and wife, Annie Gregory, at $7,800 with a deposit of $200.00. The Davises were induced to sign said contract in reliance upon a promise then made by the defendant that if the Gregories did not close the sale on or before May 10, 1964, the closing date specified in the contract, that in such event the defendant would either sell or purchase the home himself, obtaining for the same a net return of $3200 to the Davises.

'(3) Gregory and wife did not close the sale. On May 11, 1964, Davis and wife demanded that the defendant honor his aforesaid promise. In response to such demand, the defendant did not either sell the property or purchase the property himself as promised nor did he make any offers to either sell or purchase the property as promised.

'Wherefore by reason of the foregoing, the defendant Brod is guilty of false promises and breach of trust in a business transaction in violation of Subsection 475.25(1)(a) Florida Statutes.'

The record discloses that on March 10, 1964, the Davises and Gregorys did sign a sales contract in defendant's office in Tampa, whereby the Davises agreed to sell their home property to the Gregorys, the deal to be closed on or before May 10, 1964 Earlier, on the same day, defendant had written out in longhand and delivered to the Davises an informal document whereby defendant had agreed to 'sell or purchase' the said Davis home for a net return to the Davises of $3200, plus any additional sums the Davises might pay on the existing mortgage during the ensuing 60 days, said paper being signed only by defendant Brod. The Gregorys paid $200 deposit to defendant at the time the sales contract aforesaid was executed, as per the provisions thereof, and some few days later Davis borrowed from defendant the sum of $250 to pay for termite-proofing the home property, presumably in anticipation of the sale to the Gregorys being consummated.

The Gregorys changed their mind about buying the home a few days after signing the contract of purchase, and notified defendant and also the Davises that they would not go through with the deal, giving the defendant the reason that Gregory's father-in-law who was 'sponsoring the money' insisted they build a new home rather than buy one already built, and giving the Davises the different reason that defendant 'wasn't stable in the price, he kept going up, and the price would fluctuate up as far as figure wise'. Defendant gave the Gregorys back their $200. Davis refused to give back or repay to defendant the $250 which he repeatedly described as a loan or a 'borrow'; in fact, he stated he had 'no intention to' repay the money. Davis took no steps to termite-proof the house, the ostensible purpose of the loan, nor made any move to vacate the homeplace or find another place to live by May 10, 1964, whereupon defendant advised Davis he would not go through with his written promise of March 10th aforesaid.

The Commission contends that the foregoing facts constituted a 'listing' of the property in question by the Davises with defendant Brod, that such 'listing' was induced by the handwritten agreement of defendant of March 10th, and that when defendant failed either to buy the property himself or sell it to a third party for a net return of $3,200 to the Davises, defendant's said agreement became a 'false promise' and his conduct a 'breach of trust'. F.S. Section 475.25(1) F.S.A., in the part relied upon here by the Commission, provides that a broker's registration may be suspended if he is found guilty of--

'* * * false promises * * * or breach of trust in any business transaction * * *.'

The transaction between the various parties, as outlined aforesaid, did not constitute in our view a 'listing' of the property by the Davises with defendant as a real estate broker. It was simply in effect a situation whereby, if the Gregorys Went through with their purchase contract, the Davises would get a net return of $3,200 cash, and defendant Brod would get, as a profit but not as commission, whatever was left after paying the Davises the $3,200 and paying off the existing mortgage of approximately $3,100; while if the Gregorys Failed to consummate the purchase, defendant would simply buy the property for $3,200.

After the Gregorys repudiated their purchase contract, that left only the March 10th 'agreement' between defendant and the Davises. Whether defendant was justified in failing to perform upon his written promise to the Davises is beside the point. The point is, it was not a listing as contemplated by Ch. 475 F.S.; and it was in no way an inducement from Brod to the Davises for them to sign the contract with the Gregorys. It was simply a unilateral agreement by defendant Brod, unsigned by the Davises, and totally without consideration. As such, it was unenforceable by Brod against the Davises. Furthermore, it was made by Brod in his own individual capacity, and not as broker for anyone.

There undoubtedly was a promise made by Brod to the Davises, but there was no False promise or at least it was Not proved to be false. The statute requires the promise to be False to be grounds for suspension. A promise that is merely Unfulfilled is not necessarily a False promise. A promise to do something in the future, even if made as a representation to induce the other person to enter into a contract, does not amount to fraud in the legal sense, Brinkley v. Arnold, 1929, 98 Fla. 166, 123 So. 569. See also Sample v. Ward, 1945, 156 Fla. 210, 23 So.2d 81, and Beatty v. Lucas, 1933, 112 Fla. 265, 150 So. 239. The rule is well stated in Volume 37 C.J.S. Fraud § 11, page 231, wherein it is set forth Inter alia as follows:

'* * * fraud cannot be predicated on statements which are promissory in their nature, or constitute expressions of intention, and an actionable representation cannot consist of mere broken promises, unfulfilled predictions or expectations, or erroneous conjectures as to future events, even if there is no excuse for failure to keep...