Mueller v. Ruddy, 42039

Decision Date14 April 1981
Docket NumberNo. 42039,42039
Citation617 S.W.2d 466
PartiesAlfred W. MUELLER, and Al Mueller Realty Company, Plaintiffs-Appellants, v. John J. RUDDY, and Ralph H. Slavens, and L. K. Wood, Comprising The Missouri Real Estate Commission, Defendants-Respondents.
CourtMissouri Court of Appeals

Whalen, O'Connor, Danis & Tobben by David O. Danis, Daniel G. Tobben, Samuel B. Murphy, Jr., St. Louis, for plaintiffs-appellants.

Bushmann, Neff & Gallaher by Eugene G. Bushmann, Jefferson City, Jerry Short, Asst. Atty. Gen., Jefferson City, for defendants-respondents.

SATZ, Judge.

This is an appeal from a decision of the circuit court affirming an order of the Missouri Real Estate Commission (Commission). Appellants are Alfred W. Mueller (Mueller) and Al Mueller Realty Company (Realty Company). The Realty Company's real estate license is dependent upon Mueller's license.

The Commission filed a two-count petition with the Administrative Hearing Commission, charging Mueller, and, in turn, the Realty Company, with violating certain provisions of the Real Estate Agents and Brokers Act, Chapter 339 RSMo 1969. 1 In Count I, the Commission alleged that Mueller was engaged by Transamerica Insurance Company (Transamerica) as an agent to sell a house for Transamerica and, as Transamerica's agent, Mueller fraudulently concealed from Transamerica an offer on the house and Mueller's status as the actual purchaser of the house from Transamerica. In Count II, the Commission charged Mueller with violating § 339.150 RSMo 1969. The Commission alleged that Mueller compensated unlicensed sales persons for selling real estate for him. The Hearing Commissioner (Commissioner) found Mueller and the Realty Company guilty on both counts. His decision was referred to the Commission, and the Commission revoked the real estate licenses of Mueller and the Realty Company. The circuit court affirmed the Commission's order. We affirm the judgment of the circuit court.

On appeal, appellants raise 10 main points and multiple subpoints. To address these points, we excerpt without quotation marks and paraphrase, in part, the pertinent findings of the Commissioner's Findings of Fact.

Alfred W. Mueller is a licensed Missouri Real Estate broker. Al Mueller Realty Company is a holder of a current real estate corporation license which is dependent upon the broker's license of Alfred Mueller. In June of 1977, Transamerica acquired the ownership of some residential property on Blow Street in the City of St. Louis. Two local officials of Transamerica were to dispose of the property: Charles W. Haury, a claims representative, and his immediate superior, a branch manager, Richard Boll. An attorney recommended Boll and Haury engage Mueller as a real estate agent to sell the property. In late June of 1977, both Haury and Boll had phone conversations with Mueller during which each asked Mueller to represent Transamerica in the sale of the property. Mueller agreed to do so.

Later in June, Haury spoke again with Mueller. Mueller recommended that Transamerica change locks on the house. The locks were changed and a set of keys were delivered to Mueller. Within a week after the delivery of the keys, Mueller called Haury to tell him the house was in very bad condition and it would cost between $4,000 and $5,000 to recondition it for sale. Mueller also spoke with Boll by phone during the week of July 5th and told him essentially the same story. Mueller told Boll that he would try to interest a couple of contractors in the property if Boll was not interested in repairing the property. In the first week of July, Haury and Boll conferred and decided to sell the house without repairs. Haury called Mueller to inform him of that decision. Three to four days later, Mueller phoned Haury and told him that the best price he, Mueller, could get for the house was $6,500. On July 7th or 8th, Mueller phoned Boll, told him that only one contractor showed any interest in the house and also told him the best he, Mueller, could get from that contractor was $6,500. Shortly thereafter, Boll and Haury conferred again and decided to sell the house for $6,500 because they believed that was the best price Mueller could get. Around the middle of July, Haury called Mueller and told him to sell the house for $6,500. Mueller did not ask to buy the property himself nor did he ask permission to sell the property to someone in his office.

In the latter part of June, 1977, a young couple, Robert Knittel and his fiancee (Knittels) saw the property on Blow Street with Mueller's real estate sign in the front yard. They obtained Mueller's phone number from the sign and, some time during the last week of June, Mr. Knittel called Mueller's office. Knittel spoke with an employee of Mueller, Kathy Freiner. Freiner was not a licensed real estate saleswoman. Freiner told Knittel the owners had not set a price on the property and he would not be able to see the property until the price was set. During the first two weeks of July, Knittel talked to Freiner asking about the price and she responded that they were getting closer to establishing a price. On July 20, 1977, Freiner showed the Knittels the property. Freiner met them at the house, announced that she was working for Mueller and that she represented the owners, who remained unnamed. After a tour of the house, the Knittels signed an "offer-to-purchase" contract on a standard form prepared by Freiner. The purchase price was $18,500. H. J. Merschmann, a licensed salesman employed by Mueller, was listed as seller on the contract. The Knittels paid $100 to Freiner as earnest money when they signed the contract on July 20th. After the sale was completed, Freiner received $300 from Mueller for her services in selling the property. Freiner testified that the property was listed on the board at Mueller's office, indicating it was for sale.

On July 21, 1977, Mr. Windmueller, a salesman in Mueller's office, prepared an "offer-to-purchase" contract on the Blow Street property. The contract listed H. J. Merschmann as the purchaser. 2 The contract, a standard form, provided that Mueller would receive a 6 percent commission and also required the offer be accepted by July 23, 1977. Mueller changed the date of the contract to read July 11, 1977, before Windmueller took the contract to Transamerica's office. When Windmueller presented the contract for Boll's signature, he did not tell Boll or Haury that the buyer, Merschmann, was Mueller's uncle and was a salesman in Mueller's office. After signing the contract, Boll asked who was to receive the earnest money and he was told Mueller would keep it as agent until the final sale was consummated. Boll and Haury were not told at the time they signed this contract that two days earlier, on July 20, 1977, Mueller had obtained an offer to purchase the property for $18,500.

On August 26, 1977, Merschmann made a written assignment of his interest in the Blow Street property to Mueller for $1.00. The assignment was witnessed by Mueller's secretary.

At the time of the closing, neither Boll nor Haury was available, to sign for Transamerica, as the grantor. Another employee, Benno Leyrer, signed the deed in behalf of the company. Leyrer knew nothing about the terms of the sale except that the price was about $6,000. Only one deed was executed. Transamerica was the grantor and the Knittels were the grantees. However, there were two sets of closing statements. The first set contained a statement showing Al Mueller Realty Company as the purchaser. The first closing statement was dated September 20, 1977, and reflected a sale price of $6,500. The second set of closing statements was dated September 19, 1977. They reflect the same property but show a sale price of $18,500. The statement for the seller is in the name of Alfred W. Mueller, president of Al Mueller Realty Company and was signed by Mueller. The Knittels were the purchasers.

The Commissioner found that Mueller became Transamerica's agent to sell the Blow Street property, and, as an agent, Mueller, and, in turn, the Realty Company, fraudulently concealed from Transamerica Mueller's identity as the purchaser of the property 3 and the offer on the property. He also concluded Mueller improperly compensated Freiner for her services.

Appellants first attack the sufficiency of the evidence. To determine the merits of this attack, we review the findings and decision of the Commissioner not the judgment of the trial court. See Ingram v. Civil Service Comm'n of St. Louis, 584 S.W.2d 633 (Mo.App.1979). We defer to his views on the credibility of witnesses and we view the evidence and all reasonable inferences in the light most favorable to his findings. E. g., Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201, 203 (Mo.App.1951). We may not substitute our judgment of the evidence for that of the Commissioner and we may not set aside his decision unless it is not supported by substantial evidence, or unless it reflects an abuse of discretion or is not authorized by law. E. g., Missouri Real Estate Comm'n v. Steger, 509 S.W.2d 47, 49 (Mo.1974).

Appellants' attack on the sufficiency of the evidence is two-pronged. Appellants argue there was insufficient evidence to show Transamerica had authorized either Boll or Haury to hire Mueller as an agent; and, if this authority existed, appellants argue, there was insufficient evidence to show an agent/principal relationship was created. These arguments are not persuasive.

Contrary to appellants' first contention, there was evidence to show Boll had authority to hire Mueller as an agent for Transamerica. Mueller states that neither Boll or Haury had authority to sign a listing agreement. However, the transcript pages to which he refers do not support this statement. Indeed, Boll testified...

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  • B.R.F., In re
    • United States
    • Missouri Court of Appeals
    • March 20, 1984
    ...right to confront and cross-examine opposing witnesses and to rebut their testimony with controverting evidence. E.g., Mueller v. Ruddy, 617 S.W.2d 466, 475 (Mo.App.1981). There is nothing in the transcript of the hearing in New Jersey showing the father's counsel was precluded from properl......
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    ...bias is not given a free pass to admissibility merely because a party alleges that the evidence shows bias. See Mueller v. Ruddy, 617 S.W.2d 466, 479 (Mo. App. E.D. 1981) (noting exclusion is appropriate where the offer of proof fails to elicit evidence tending to prove or disprove bias); s......
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    ...hearing officers in contested cases have "wide discretion in determining the scope of cross-examination," Mueller v. Ruddy, 617 S.W.2d 466, 478 (Mo. App. E.D. 1981), this discretion does not extend to excluding testimony on relevant and material issues sought to be evoked on cross-examinati......
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