Henrion v. New Era Realty IV, Inc.

Citation586 So.2d 1295
Decision Date02 October 1991
Docket NumberNo. 90-2890,90-2890
PartiesJoseph M. HENRION and A.W. Nordman and J.M. Henrion, Inc., a Florida corporation, Appellants, v. NEW ERA REALTY IV, INC., d/b/a Era Realtors and American Pioneer Casualty Insurance Company, Appellees. 586 So.2d 1295, 16 Fla. L. Week. D2567
CourtCourt of Appeal of Florida (US)

Phillip T. Crenshaw of Arnstein & Lehr, West Palm Beach, for appellants.

Lawrence P. Kuvin, Fort Lauderdale, for appellee-New Era Realty IV, Inc.

Robert A. Freyer of Shutts & Bowen, Orlando, for appellee-American Pioneer Cas. Ins. Co.

PER CURIAM.

The following appears from the Pre-trial Stipulation executed and filed with the lower court on January 14, 1988.

1. FACTS OF THE CASE

In April, 1982, Plaintiffs/Appellants, JOSEPH M. HENRION and LOIS L. HENRION, his wife, entered into a listing agreement with Defendant/Appellee, NEW ERA REALTY IV, INC., a Florida corporation, for the sale of their building at 817 North Dixie Highway, Lake Worth, Florida. The purpose of the sale was to provide as close as possible to $50,000.00 for a down payment on the purchase (price approximately $186,000.00) of an insurance company by Plaintiffs, and their corporation A.W. NORDMAN & J.M. HENRION, INC., a Plaintiff, sub judice.

On June 9, 1982, Plaintiffs and Defendant, NEW ERA REALTY IV, INC., associated JIM GRAHAM and JIM GRAHAM, INC., as an auctioneer, to conduct an auction sale of the property scheduled on July 24, 1982.

Defendant, NEW ERA REALTY IV, INC., through its agent, Dianne Purcell, provided the listing information to JIM GRAHAM, INC.,'s office. The property was then listed and advertised for the auction sale which was held on July 24, 1982. Defendants, SHOOK and GREENWAY, made the highest bid of $70,500.00 and deposited $7,050.00 with JIM GRAHAM INC., as the broker. Closing was set on August 30, 1982.

Prior to closing, Defendants, SHOOK and GREENWAY, determined the size of the office was not 1,760 square feet as advertised but was actually 1,200 square feet. Because of the alleged material misrepresentation within the sales literature, they refused to close and demanded return of their deposit monies.

Plaintiffs attempted to quickly sell their property through other sources without success, and were unable to meet their $50,000.00 downpayment commitment to purchase the insurance agency business. Subsequently, the sellers of the Insurance Agency terminated the agreements and sold to unrelated third parties.

2. STATEMENT OF THE CASE

Plaintiffs' Third Amended Complaint contains three counts. Only count III is at issue which is professional negligence of the real estate broker, NEW ERA REALTY IV, INC.

General damages, lost profits and lost corporate stock value of the Plaintiff, A.W. NORDMAN and J.M. HENRION, INC., are specially pled.

Defendant's NEW ERA REALTY IV, INC., affirmative defenses are:

I. Estoppel. Because defendant relied on information plaintiff provided to defendant;

II. Plaintiffs Comparative Negligence;

III. Plaintiffs failure to mitigate damages.

Plaintiffs have settled with defendants JIM GRAHAM, individually, and JIM GRAHAM, INC. The claims between them have been dismissed by Joint Notice of Dismissal served December 4, 1987.

The court has entered default against third party defendant, HEAVENER-OGIER SERVICES, INC., for failure to respond to discovery.

3. AGREED LAW OR STIPULATED FACTS

A. JOSEPH M. HENRION and LOIS L. HENRION, his wife, entered into the Exclusive Right of Sale Agreement with NEW ERA REALTY IV, INC., on April 22, 1982.

B. Dianne Purcell executed the Listing Agreement and was an authorized agent of NEW ERA REALTY, IV, INC. at all times material hereto.

C. JIM GRAHAM, INC. held the auction sale of the HENRION property on July 24, 1987.

D. JIM GRAHAM, INC. was cooperating broker and NEW ERA REALTY IV, INC. was listing broker.

E. Mr. HENRION advised agents and officers of NEW ERA REALTY IV, INC. at the time of executing the auction and listing agreement and prior to the auction of the property that his intended use of the sale proceeds was to purchase another business.

F. AMERICAN PIONEER CASUALTY INSURANCE COMPANY policy of errors and Omissions Insurance for the period April 15, 1982 through April 15, 1983, in the face amount of $1,000,000.00, insures any loss incurred by the claim of Plaintiffs against Defendant, NEW ERA REALTY IV, INC.

G. At all times material to this controversy, Realtor Ethics Rule 16.05, Knowledge of Property Offered, provided as follows:

"16.05 Knowledge of property offered. Before attempting to make a sale the broker of salesman should inform himself fully about the property in order to better show its value and to avoid false or reckless representations concerning it. He should know where it is located, what type of property is near it, its proximity to transportation and business, and any other local conditions that make it suitable or unsuitable for proposed uses. He should know the sales price of other property similarly situated if it has been recently sold, and while he is not supposed to express an opinion about the title he should know the amount and character of liens against it and whether taxes and assessments will have any impact on it. He should be informed of the age, original cost, and condition of repair of buildings on the property and should be aware of the bad points about the property as well as the good. If the property is income-producing, he should know the facts surrounding its production and potential. In this manner the broker and salesman will be better able to provide a needed service to the public and maintain a high level of responsibility."

4. ISSUES OF LAW OR FACT FOR TRIAL DETERMINATION

A. Whether NEW ERA REALTY IV, INC. negligently breached its Listing Contract with Plaintiffs;

B. Whether NEW ERA REALTY IV, INC. negligently performed its Listing Contract with Plaintiffs;

C. The amount of damages suffered by Plaintiffs;

D. Are Plaintiffs estopped to make their claims;

E. Whether any Plaintiffs were "comparatively negligent";

F. Whether Plaintiffs failed to mitigate their damages;

G. Custom & Usage in the Real Estate Business.

Commencing late February, 1988, a jury trial was held. The parties submitted jury instructions consistent with their pretrial stipulation, trying the case on a negligence theory and negligence related defenses. On March 4,...

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10 cases
  • Fawaz v. Florida Polymers
    • United States
    • Florida District Court of Appeals
    • July 13, 1993
    ...good cause, asserting that the agreement was obtained by fraud, misrepresentation, or mistake of fact. Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991); Lopez v. Dublin Co., 489 So.2d 805, 807 & n. 3 (Fla. 3d DCA 1986); Curr v. Helene Transp. Corp., 287 So.2d 695......
  • Dortch v. State
    • United States
    • Florida District Court of Appeals
    • May 6, 2014
    ...to withdraw or amend, with notice to the other party, supported by an affidavit showing good cause. See Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991). There was no such motion in the present case. Nor was there good cause for such a motion, given the fact that......
  • Owens-Corning Fiberglas Corp. v. Ballard
    • United States
    • Florida District Court of Appeals
    • April 29, 1998
    ...jury. Since it never specifically sought relief from the stipulation, we find it waived this argument. See Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991)(holding, under Florida law, to obtain relief from a stipulation, a party must make a reasonable motion to w......
  • George v. Wells Fargo Bank, N.A.
    • United States
    • U.S. District Court — Southern District of Florida
    • January 7, 2014
    ...Cottages-Stuart, LLLP, No. 08-14020-CIV, 2008 WL 1803637, at * 3 (S.D. Fla. Apr. 21, 2008) (citing Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1297 (Fla. 4th DCA 1991)).4 Plaintiffs are given leave to amend this claim to remedy this pleading deficiency. 3. Intentional Infliction of ......
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1 books & journal articles
  • Alternatives to physical and testimonial proof
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...was no indication that the agreement was obtained by fraud, misrepresentation or mistake of fact. Henrion v. New Era Realty IV, Inc. , 586 So.2d 1295 (Fla. 4th DCA 1991); Salinas v. C.A.T. Concrete, LLC , Case No. 1D09-4208 (Fla. 1st DCA 2010). Parties will be released from stipulations ent......

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