Grieser v. Myers, 72--181
| Decision Date | 18 October 1972 |
| Docket Number | No. 72--181,72--181 |
| Citation | 267 So.2d 673 |
| Parties | Fred J. GRIESER, Jr. and Palm Worth Realty Company, Petitioners, v. Ronald L. MYERS and the Florida Real Estate Commission, Respondents. |
| Court | Florida District Court of Appeals |
Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for petitioners.
Robert L. Powe and Frank A. Wilkinson, of the Florida Real Estate Commission, Winter Park, for respondents.
Petitioners, who are registrants under the real estate license law, seek certiorari to the Florida Real Estate Commission to review an order adjudicating them guilty of violating F.S. Section 475.25(1)(c), F.S.A., 1 and subjecting them to a reprimand.
The relevant facts are: On June 8, 1970, Fred M. Byrd signed a deposit receipt contract for the purchase of a vacant lot listed through petitioners' office, at the time giving petitioners his check in the amount of $200.00 as a deposit. The owner of the lot, William A. Thorn, signed the contract on June 28th. The contract required the seller to furnish title insurance, and provided for closing within fifteen days after the title insurance binder was delivered to the buyer. However, no provision was made for a time limit on delivery of the binder, and in fact, no binder was ever delivered. During the first week in August, Byrd notified petitioners of his desire to terminate the agreement and obtain a refund of his deposit. The petitioners immediately notified Thorn of his request, but Thorn refused to accede to the same and insisted upon a forfeiture of the deposit if Byrd did not want to consummate the deal. Petitioners then advised Thorn that if he wanted to claim the deposit as a forfeiture he would have to first furnish a title insurance binder. Petitioners thereafter informed Byrd that they could not refund his deposit without the seller's permission. Byrd then wrote a letter of complaint to the Florida Real Estate Commission. As a result of the investigation which was made, an information was filed in March, 1971. Promptly thereafter the $200.00 deposit was refunded to Byrd with Thorn's approval.
The information which was filed against petitioners was in several counts, but only Count IV is relevant here, petitioners having been found not guilty as to the remaining counts. Count IV charged in the following language:
'(2) That upon receipt of the said conflicting demands, the defendants have failed to account and pay the said earnest money deposit to the persons entitled thereto, and from the time of such conflicting demands in August, 1970, until the filing of this Information, the defendants have carelessly and negligently failed to take the steps or comply with the provisions as provided by Subsection 475.25(1)(c), Florida Statutes.'
The hearing examiner's recommended order was approved and adopted by the Commission as its final order, and petitioners were adjudged guilty of a violation of F.S. Section 475.25(1)(c), F.S.A., as charged in Count IV of the Information.
It is apparent to us that the examiner and the Commission, as well as respondent's counsel here, view Count IV as charging two separate violations, to-wit: (1) a failure to account and pay the earnest money deposit to the person entitled thereto, and (2) a failure to take the procedural steps set forth in F.S. Section 475.25(1)(c), F.S.A. upon receipt of conflicting claims to the earnest money deposit. In our judgment the second of these does not charge a violation.
F.S. Section 475.25(1)(c), F.S.A. charges a registrant with the duty '. . . to account or deliver to any person . . . money . . . which has come into his hands . . . upon demand of the person entitled to such accounting and delivery . . ..' The statute also provides an appropriate penalty for violation of such duty. Yet, it is manifest that certain situations could develop, e.g., conflicting claims to an earnest money deposit, in which it would be unfair to the registrant to require that he make a determination as to when and to whom such accounting and delivery is due. Therefore, the statute wisely and fairly provides to the registrant (who finds himself in such a situation) certain 'escape procedures'. Thus,
(i) his duty to account and deliver said property, or
(ii) what person is entitled to the accounting or delivery; or
provided, that having done either of the foregoing, he thereafter abides, or offers to perform (a) the advice of the Commission, or (b) the orders of the court or arbitrators. If the broker promptly utilizes either of these escape procedures, then, no information can be filed or maintained against him even though he has not accounted and delivered the money to the person entitled to it.
Succinctly, when the petitioners here were faced with conflicting claims to the earnest money deposit, they had the duty to account for and pay over the money to the person entitled to it. They could have proceeded to do so, taking the risk that they might either (a) pay it to the wrong claimant, or (b) refuse to pay it to he proper claimant; or at their option they could have avoided the risk of making an erroneous decision in this regard by promptly utilizing one of the escape procedures outlined above. The point is, that while such procedures are available to relieve the registrant from a dilemma, (and prudence would seem to dictate the use of one or the other in such a situation as here) the statute does not make the use of any of such procedures Obligatory. Hence, the registrant's...
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Jay Vee Realty Corp. v. Jaymar Acres, Inc.
...Lake Dorr Land Co. v. Parker, 104 Fla. 378, 140 So. 635 (1932); Cohodas v. Russell, 289 So.2d 55 (Fla. 2d DCA 1974); Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972). Here, the trial court resolved this issue in favor of appellee. The record as a whole supports the trial court's finding ......
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Golub v. Department of Professional Regulation, 83-65
...relate only to conflicting claims to "escrowed property," to which it repeatedly refers, such as was involved in Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972), cert. den., 273 So.2d 766 (Fla.1973), and not to contested commission fees as is involved in this case. See Fleischman v. Dep......
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Roberts v. Ayers
...him shall be permitted to be maintained . . . . The escape provisions of section 475.25(1)(c) must be timely invoked. Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972), cert. den., 273 So.2d 766. From the allegations of the petition and the record supplied, it does not appear as a matter ......
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Grieser v. Myers
...L. MYERS and the Florida Real Estate Commission, Respondents. No. 43156. Supreme Court of Florida. Feb. 19, 1973. Certiorari denied. 267 So.2d 673. CARLTON, C.J., and ROBERTS, ERVIN, ADKINS and BOYD, JJ., ...