Holland v. Florida Real Estate Com'n Ex Rel. Linesbaugh

• Decision Date: 08 January 1938
• Citation: 130 Fla. 590,178 So. 121
• Court: Florida Supreme Court
• Parties: HOLLAND v. FLORIDA REAL ESTATE COMMISSION ex rel. LINESBAUGH.

178 So. 121

130 Fla. 590

HOLLAND v. FLORIDA REAL ESTATE COMMISSION ex rel. LINESBAUGH.

Florida Supreme Court, Division B.

January 8, 1938

Information by the Florida Real Estate Commission, on the relation of C D. Linesbaugh, to revoke or suspend the registration of O. J Holland as a real estate broker. From a decree revoking defendant's registration as a real estate broker and enjoining him from operating as a broker or salesman defendant appeals.

Reversed with directions. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Stapp, Gourley, Ward & Ward, of Miami, for appellant.

W. H. Poe and L. E. Broome, both of Orlando, for appellee.

OPINION

CHAPMAN Justice.

On February 25, 1937, there was filed before the Florida Real Estate Commission an information in two counts by C. D. Linebaugh, a resident citizen of Florida, against O. L. Holland, a registered real estate broker then residing at 1627 Alton road, Miami Beach, Dade county, Fla. The first count alleged that At-Bay Realty Company was the owner of lot 10, block 13, Normandy Beach South subdivision, Dade county, Fla., and was represented in Dade county by attorney Louis Heiman; that E. J. Masters was a salesman for Holland; that the salesman obtained a listing and shortly thereafter sold or agreed to sell to Mrs. Sears the lot above described for $1,650, and Mrs. Sears signed the sales agreement and paid $500 as earnest money; that she subsequently paid to O. L. Holland $1,075, and the payment of the commission was agreed upon by O. L. Holland and Mrs. Sears. After receipt of the entire purchase price of the lot, O. L. Holland advised her not to carry out the trade as he could find something better for her. He had negotiated the sale and received the agreed purchase price for the property, and in advising Mrs. Sears not to carry out the trade he perpetrated a fraud on the At-Bay Realty Company as a real estate broker under the laws of Florida.

Count 2 alleges that on September 16, 1935, E. J. Masters, an employee of defendant, interested Mrs. Sears in lands therein described, and she agreed to pay therefor $1,650, and shortly thereafter defendant assumed charge of the negotiations; that he received from her $1,650, less his commission, and failed and neglected to close or report the same to At-Bay Realty Company, and while having the money in his possession, property of Mrs. Sears, omitted to close the trade, advising her that the purchase of the lot was not a sound investment and feigned that a better purchase was possible, but would require more money, which she supplied, and placed with defendant additional funds making $2,400. On January 1, 1936, defendant induced Mrs. Sears to accept his note in the sum of $2,400 in lieu of the money and neither the lot nor apartment house were purchased with the funds of Mrs. Sears, but defendant fraudulently converted the same to his own use. The information seeks a revocation or suspension of registration of O. L. Holland as a real estate broker. The information was filed under section 4087, C.G.L.1927.

On March 22, 1937, answer was filed to the information to the effect that the defendant had no special listing as to the described land; no abstract or deed was tendered by At-Bay Realty Company; that the trade was called off by Mrs. Sears; additional investments were sought by Mrs. Sears through the defendant; and, failing to find a suitable investment, the money was loaned to defendant which was better business than to make an investment in an apartment house and assume payment of a large mortgage indebtedness; that she advanced additional money to defendant and took his note in the sum of $2,400, bearing interest due six months after January 1, 1936; that he visited her in a social way some two or three times each week until May, 1936, and no demand was made for the money until after maturity of the note when he was induced to believe the note could be renewed upon maturity. The note matured and had been reduced to judgment. Other allegations appear in the answer unnecessary to recite.

On March 26, 1937, an examiner was appointed under section 4090, C.G.L., to take all the testimony of the parties and report the same.

The Florida Real Estate Commission, under section 4092, C.G.L., filed its petition and certified the record with all exhibits to the circuit court of Dade county, Fla., for further proceedings according to law. On August 27, 1937, the Honorable Paul Barns entered an order revoking the defendant's registration as a real estate broker and restrained and enjoined him from operating as a broker or salesman. An order denying a petition for rehearing was entered September 7, 1937. An appeal from the final decree was entered September 10, 1937, under section 4099, C.G.L., the record perfected, and the suit is here for review on several assignments for a reversal.

A study of the record shows that each assignment rests largely on the findings of the chancellor on questions of fact rather than questions of law. The statutes under which the information was filed have been sustained by the decisions of this court. In a concurring opinion of Mr. Justice Strum in the case of State ex rel. Davis v. Rose, 97 Fla. 710, text page 747, 122 So. 225, 239, when discussing the purpose and intention of the act, he said:

'The purpose of the statute under consideration is to stabilize real estate transactions and to protect the public against financial loss through future repition of unscrupulous practices in transactions involving the sale and purchase of real estate. Experiences of the recent past in Florida have demonstrated that the methods followed by many in such dealings, without the restraint of this statute, have readily adapted themselves to the perpetration of deception and imposition. See Goldstein v. Maloney, 62 Fla. 198, 57 So. 342; People v. Beaks Dairy Co. , 119 N.E. [115], 118, 3 A.L.R. 1267. The statute attempts to accomplish the result stated by permitting only those who possess certain special qualifications of aptitude, ability, and integrity to engage in the business of real estate broker.

'In his fiduciary relationship to his customer, the broker invites, and usually receives, a high degree of confidence and trust, in the bestowal of which it is competent for the state to protect the customer by reasonable regulations upon the broker. Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 A.L.R. 1173. It is appropriate and lawful, therefore, that adequate, but reasonable, special

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