Henrion v. New Era Realty IV, Inc.
Citation | 586 So.2d 1295 |
Decision Date | 02 October 1991 |
Docket Number | No. 90-2890,90-2890 |
Parties | Joseph 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 |
Court | Court 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.
The following appears from the Pre-trial Stipulation executed and filed with the lower court on January 14, 1988.
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.
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.
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:
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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