Dittmeier v. Missouri Real Estate Commission
| Decision Date | 20 February 1951 |
| Docket Number | No. 27914,27914 |
| Parties | DITTMEIER v. MISSOURI REAL ESTATE COMMISSION. |
| Court | Missouri Court of Appeals |
J. E. Taylor, Atty. Gen., J. Jules Brinkman, Asst. Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for appellant.
Joseph Boxerman, Joseph Nessenfeld, St. Louis, for respondent.
HOUSER, Commissioner.
This is an appeal from the judgment of the circuit court reversing, revoking and annulling the order and decision of the Missouri Real Estate Commission suspending the license of Frank L. Dittmeier as a real estate broker for a period of six months.
Acting pursuant to the authority conferred upon it by the Missouri Real Estate Commission Act, Laws of Missouri 1941, p. 424, Mo.R.S.A. Sec. 9300.10, R.S.1949, Sec. 339.100, which authorizes the commission to investigate the business transactions of any real estate broker and to suspend his license if he be found guilty of 'Making substantial misrepresentations or false promises in the conduct of his business, or through agents or salesmen or advertising, which are intended to influence, persuade or induce others'. Section 10(a), or 'Any other conduct which constitutes untrustworthy or improper, fraudulent or dishonest dealings, or demonstrates bad faith or gross incompetence'. Section 10(g), the commission issued a notice to respondent, directing him to appear before it to answer certain charges. The charges were set forth in four counts, one of which was abandoned, and on three of which evidence was heard. In due time, the commission made and adopted certain findings of fact and conclusions of law in which respondent was adjudged 'guilty of violation of Sections 10a and 10g of the Missouri Real Estate Commission Act.' A six months suspension was imposed as a penalty. Thereupon respondent procured an order staying the enforcement of the suspension order pending final disposition of the case and filed proceedings for review in the circuit court.
The order of the commission is subject to review by the courts to determine whether it is 'authorized by law' and whether it is 'supported by competent and substantial evidence upon the whole record.' Constitution of Missouri, 1945, Art. V, Sec. 22. Although the reviewing court cannot substitute its own judgment for that of the administrative tribunal, and should adhere to the rule of due defendance to findings of fact involving the credibility of witnesses, its duty is to determine whether the tribunal reasonably could have made its findings and reached its result upon consideration of all of the evidence before it and to set aside decisions clearly against the overwhelming weight of the evidence. Wood v. Wagner Elec Corp., 355 Mo. 670, 197 S.W.2d 647; Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, loc.cit. 662; Dyche v. Bostian, Mo.Sup., 233 S.W.2d 721. In determining the sufficiency of the evidence it must be considered in the light most favorable to the finding, Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, together with all reasonable inferences that may be drawn therefrom that seem to support it, and the court must disregard all opposing and unfavorable evidence. Schmidt v. Rice-O'Neill Shoe Co., Mo.App., 226 S.W.2d 358.
Count 1. Henry and Leona Jones transaction.
The Charge: (1) Entering into an earnest money contract calling for the sale of certain property to Henry Jones and wife for $6,500 and then making the total price to the purchasers $6,995 by 'wilfully, fraudulently and illegally, by fraud, trickery, misrepresentation and other unjust and unethical practices,' securing the signatures of the Jones couple to two deeds of trust aggregating $6,395, and 'wilfully' accepting $600 in cash; and (2) issuing a closing statement to the purchasers which was designedly misleading, confusing and fraudulent, in that it omitted to mention or account for any deed or deeds of trust.
The Findings: (1) That respondent sold the property to Henry Jones and wife under an earnest money contract for a sale price of $6,500; (2) that the purchasers were uneducated colored people not versed in business matters; (3) that the purchasers assumed a first deed of trust for $4,500 which respondent had placed against the property; that respondent secured their signatures to a second deed of trust for $1,895 and accepted $600 cash; that the actual cost to the purchasers was $6,995; and that $405 was refunded by respondent to the purchasers, after notice of hearing had been served; (4) 'that the said Frank L. Dittmeier did not secure by any means the signatures of said Henry and Leona Jones to two certain deeds of trust as alleged in the notice of hearing'; (5) that a proper amount of revenue stamps was affixed to the deed; and (6) that respondent issued a closing statement to the purchasers which was designedly misleading, confusing and fraudulent in that it omitted to mention or account for any deed or deeds of trust.
We conclude from an examination of the testimony of Jones and Dittmeier and from the documentary evidence adduced that Findings Nos. 1 and 3 are supported by competent and substantial evidence upon the whole record. We will not review the evidence thereon in view of the fact that respondent does not contend otherwise on this appeal.
Can Findings Nos. 1 and 3 properly be made the basis for the commission's conclusion that respondent violated Sections 10(a) or 10(g) of the Act? We think not. Dittmeier was charged with fraudulently, etc., and by trickery securing signatures to two deeds of trust whereby the agreed price of $6,500 was made into a total price of $6,995. Finding No. 4 specifically and completely exonerates and absolves him of any wrongdoing in this connection and prevents the preliminary Findings Nos. 1 and 3 from providing any support for a finding of guilt under the sections cited. If any inference of misconduct could be drawn from Finding No. 3, its force and effect is dissipated by Finding No. 4 and we are obliged to sustain the contentions of respondent in this connection.
Is Finding No. 6 supported by competent and substantial evidence upon the whole record? Respondent's statement introduced in evidence and characterized by appellant as the 'closing statement' shows on its face that it is nothing more or less than a recapitulation of the cash account between the parties in which the closing costs (including items of cost of recording the first and second deeds of trust) are itemized. It is not a closing statement in the generally accepted understanding of that term and obviously and patently is insufficient to support the finding. Furthermore, it does in fact refer to deeds of trust.
Count 2. Virginia Maguire transaction.
The Charge: Selling certain property to Virginia Maguire, causing her to become dissatisfied with the property, causing her to list the property with respondent as her agent, and then 'by artifice, trickery and deceit' inducing her to sign a deed for a totally inadequate consideration of $325 when her equity in the property was worth $1,000, and at a time when respondent well knew that he had previously sold the property to one Leonard J. Brady for $4,100, and tricking her to deed the property to a straw party, one Vito Scalzo, a nonexistent person, and an alias assumed by respondent.
The Findings: That on January 24, 1945 respondent sold certain real estate to Mrs. Maguire for $3,350; that by trickery, false representations, artifice and deceit he induced her to sign a warranty deed conveying the property to Vito Scalzo, straw party for respondent; that the tickery consisted of falsely representing to Mrs. Maguire that the holder of the deed of trust was pressing for foreclosure and that the insurance was subject to cancellation because of the vacancy of the property, whereas respondent knew that a vacancy rider could have been attached to the insurance policy; that respondent had already sold or contracted to sell the property to Leonard J. Brady at the time he secured Mrs. Maguire's signature to the deed and that at that time respondent was actually representing Mrs. Maguire as her agent to sell the property for her.
The Evidence: Virginia Maguire testified that on January 24, 1945 through respondent she purchased the property at 4553 Maffitt Avenue for $3,350, paid $300 down, and assumed a mortgage for the balance. The occupants did not quit the premises for three weeks. It was the 16th or 23rd of March before repairs which respondent agreed to make were completed. Mrs. Maguire did not move into the premises for the reason that her husband, a disabled war veteran, refused to do so, whereupon she went to the Office of Price Administration to secure the right to increase the rental. She waited some 6 or 7 weeks for them to take action. In June, 1945 respondent told her that the mortgage holder had been to the premises; that the weeds were up; that the place had not been cleaned out; that the chickens had been in the cottage at the back; that the mortgage holder was very dissatisfied and that Mrs. Maguire would 'have to do something about it.' At that time respondent asked her to let him sell it to some colored people; that he had a client; that he would make her a profit. She at first demurred. He renewed the complaint that the mortgage holder was afraid of a fire (the place was vacant) and again urged her to let him sell it whereupon she signed a contract during the last part of June or the first week in July to sell the property for $3,750 with a 5% commission to respondent; that respondent placed an advertisement in the St. Louis Post-Dispatch the next day, July 8, 1945, as follows:
; that on the night of July 11, 1945 she received a special delivery letter from respondent, as follows:
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