Real Estate Bd. v. Dalessandro

• Decision Date: 04 May 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 496 P.2d 607,17 Ariz.App. 181
• Parties: REAL ESTATE BOARD of the State of Arizona, Appellant, v. Emidio DALESSANDRO and Clara Dalessandro, his wife, Arthur Dalessandro, also known as Arthus M. Dalessandro and Clara Dalessandro, his wife, Appellees. 1581.
• Court: Arizona Court of Appeals

Page 607

496 P.2d 607

17 Ariz.App. 181

REAL ESTATE BOARD of the State of Arizona, Appellant, v. Emidio DALESSANDRO and Clara Dalessandro, his wife, Arthur Dalessandro, also known as Arthus M. Dalessandro and Clara Dalessandro, his wife, Appellees.

No. 1 CA-CIV 1581.

Court of Appeals of Arizona, Division 1.

May 4, 1972.

Rehearing Denied June 5, 1972.

Review Denied July 13, 1972.

Gary K. Nelson, Atty. Gen., by James W. Woodcock, Asst. Atty. Gen., Phoenix, for appellant.

Jones, Hunter, Bartlett & Lerch, P.A., by James P. Bartlett, Phoenix, for appellees.

HATHAWAY, Judge.

The Arizona Real Estate Board has appealed from a judgment entered for payment out of the real estate recovery fund, pursuant to the provisions of A.R.S. § 32--2188 (Supp.1971--72). Two of the three questions presented for review have been withdrawn by the appellant on the basis that they have been answered in State ex rel. Talley v. McAvoy, 14 Ariz.App. 229, 482 P.2d 478 (1971). The remaining question which we must consider is whether the plaintiffs (appellees) were aggrieved parties and eligible to file against the real estate recovery fund.

Plaintiffs alleged in the trial court that they had sold certain real estate to a third party under an agreement of sale on or about March 20, 1962; that between March 19, 1963, and February 1964, the defendant real estate broker, Lee R. Frix, by various fraudulent misrepresentations and forgeries, succeeded in acquiring record title to said real estate in his own name and in mortgaging the property for $35,000. Subsequent conveyances of the properties ensued in March and April of 1965. The plaintiffs discovered the broker's fraud in March of 1965 and filed suit in April 1965, asserting fraud and misrepresentation on the part of Frix.

At a default hearing, Frix confessed judgment, and agreed that judgment be entered against him in the amount of $61,949.87, which was the amount remaining unpaid on the initial sales agreement. Plaintiffs also quieted title to the real estate in question by default judgment and/or stipulation as to all defendants. Plaintiffs then filed a claim against the real estate recovery fund for $40,000 on the basis of the uncollectible money judgment against the Frixes and their corporation. After a hearing, the superior court directed payment of $40,000 to plaintiffs out of the recovery fund. This appeal followed.

The real estate board contends that the quiet title and damage awards were inconsistent, that plaintiff should have been put to an election, and that the quiet title award fully satisfied the judgment.

Since the board chose not to intervene in this action we are limited to an examination of the judgment on its face and cannot examine the facts upon which the judgment...