Needle v. Lowenberg, 82-359

• Decision Date: 03 November 1982
• Docket Number: No. 82-359,82-359
• Parties: Robert NEEDLE, Appellant, v. Ethel LOWENBERG, Appellee.
• Court: Florida District Court of Appeals

Page 678

421 So.2d 678

Robert NEEDLE, Appellant, v. Ethel LOWENBERG, Appellee.

No. 82-359.

District Court of Appeal of Florida Fourth District.

Nov. 3, 1982.

Bennett S. Cohn, Lake Worth, for appellant.

Kirk Friedland of Altman, Colin & Friedland, Lake Worth, for appellee.

GLICKSTEIN, Judge.

In January, 1977, appellant was an experienced real estate broker in Palm Beach County, an officer of a company that issued title insurance policies, and engaged in buying and selling property for his own account. Appellee was a recently licensed real estate salesperson who had sold her home and needed a new residence. She also had been made aware of a condominium apartment available for purchase she believed was owned by Barry Rubin.

When she contacted Mr. Rubin on January 25th, he told her to see appellant. The following day she went to appellant's real estate office and learned that appellant was the current owner of the apartment. She offered to pay appellant $1,500 for the apartment and to assume the existing mortgage; appellant accepted.

Appellant produced a duly executed warranty deed showing him as grantee and Mr. Rubin and his wife as grantors. At the trial of this cause, appellee testified appellant, at the forty minute conference on January 26th, directed his secretary to delete his name from the grantee section of the deed with correction fluid and to insert appellee's name in lieu thereof; he assured appellee this procedure was proper. But, more importantly, she testified that he told her he had clear title to the property and made a telephone call in her presence to initiate issuance of a title insurance policy for her protection.

At that time, the parties also signed an agreement wherein appellant, as assignor and in consideration of the $1,500 appellee paid him, agreed to five remunerative conditions: the payment of (1) all back maintenance and (2) mortgage payments, (3) a special assessment, (4) Mr. Rubin, and (5) documentary stamps and surtax on the deed. Appellee further testified that after she recorded the altered deed on January 28th, she unsuccessfully continued to query appellant about the title insurance. In 1978, she eventually learned a judgment against Mr. Rubin clouded her title and informed appellant of her discovery. Nothing, however, was done about the problem for two years, although appellee was able to use the apartment as collateral to negotiate two loans, notwithstanding the cloud on the title.

Finally, in 1980, appellee obtained a copy of the final judgment rendered in 1976 against Mr. Rubin and learned the holder was willing to accept $15,000 to release the property from the judgment; but later it sued to foreclose the judgment lien on her apartment. Thereupon appellee instituted the present third party action against appellant.

Since the judgment entered was adverse to appellee, she borrowed funds and paid the holder $15,000 to release the apartment from the judgment lien--the amount it was demanding immediately prior to the foreclosure sale. The trial court found appellant guilty of fraud, reestablished the copy of the unaltered deed, and declared the altered original deed void. It awarded appellee as damages the $15,000 paid to the judgment holder together with the expenses she incurred in borrowing to pay off the judgment, as well as attorney's fees, and ordered appellant execute and deliver to appellee a warranty deed to the apartment.

We affirm the final judgment because there was substantial competent evidence to support the trial court's finding of fraud. Appellant's defense was that a title insurance company told him the title was clear and he just parroted what he had been told. The trial judge's order recites that he chose not to believe appellant's testimony and we are unaware of any effort by appellant to implead the title insurance company as the responsible party. The trial judge obviously believed that any real estate broker reckless enough to alter a fully executed, delivered deed by changing the name of the grantee under these circumstances ¹ would be equally reckless enough to represent the title to be free from defects (as appellee testified appellant had done) when it clearly was clouded by the 1976 judgment.

Appellant makes much of the fact that Mr. Rubin's deposition was used at the trial for the purpose of introducing into evidence that Mr. Rubin told appellant of law suits and/or judgments against him when the title of the apartment was transferred to appellant. But we believe the evidence of fraud was sufficient without the deposition, for scienter exists when a representation is made without knowledge of its truth or falsity. See First National Bank of Stuart v. Jackson, 267 So.2d 697 (Fla. 4th DCA 1972). Nevertheless, we think it well to discuss briefly what occurred in this regard.

Mr. Rubin's deposition was duly noticed for April 3, 1981, the same day appellant's counsel wrote a letter informing appellee's counsel of his inability to attend. In the letter was a request that appellee's counsel make a copy of the deposition, if transcribed, for which payment would be made. Appellant's counsel, however, made no such request of the court reporter (the contrary would have been the expected procedure). Then appellee's counsel, on October 19, 1981, learned from Mr. Rubin, who had been served with a subpoena for the trial scheduled two days hence, that he was going to be out of the state. Thus, appellee's counsel hand-delivered a copy of the deposition to appellant's counsel and informed the latter of his intention to use...