NETTIE BYER, APPELLANT,
v.
FLORIDA REAL ESTATE COMMISSION, APPELLEE

Fla. 3d DCA | 1980-02-26
No. 79-1200
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
380 So. 2d 511 Florida District Court of Appeal, Third District (1980) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the Florida Real Estate Commission improperly rejected the hearing officer's recommendations and that there was insufficient evidence to support the suspension of the appellant's real estate license.


Headnotes

[1] Self-identification by a caller is not competent evidence to establish the caller's identity.

[2] Hearsay evidence, while admissible to supplement other evidence, is insufficient on its own to support a finding unless it would be admissible over objection in civil act…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellant Byer's real estate license was suspended by the Florida Real Estate Commission for allegedly soliciting advance listing fees by quoting unre…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

This appeal is predicated upon an order of the Florida Real Estate Commission suspending Appellant Byer’s real estate license for six months upon a finding that she violated Sections 475.25(l)(a) and 475.25(3), Florida Statutes (1975).

The Florida Real Estate Commission found that appellant had improperly solicited advance listing fees by quoting unrealistically high prices at which the property could not be sold; that she knew or should have known that her employer Continental Marketing Services, Inc. was organized for the primary purpose of obtaining listings of property for a fee; that she knew or should have known that Continental’s representations that the property would be sold for several times the purchase price were false; and that she had breached a duty to deal fairly and honestly with clients by ending her involvement in the transaction immediately upon receiving her share of the advance listing fee.

We find that the Florida Real Estate Commission improperly rejected the hearing officer’s recommendations that the Commission take no action against appellant’s license, and reverse.

Deposition testimony disclosed that during the period appellant was in the employ of Continental Marketing Services as a broker salesman, two property owners were contacted by telephone by a caller who represented herself as Nettie Byer. The caller stated that upon payment of an advance listing fee, Continental would list the property, advertise it widely within the United States and abroad, and sell it for several times the original purchase price. The fees were paid, contracts executed, and the property was advertised. No guarantees of sale were made by the caller, but evidence was presented that the properties were not worth the prices suggested by the caller as the prices at which the property could be sold.

The Florida Real Estate Commission found that appellant had been in Continental’s employ for almost five months and had been registered as a real estate salesman for 12 years. It concluded that as a result of the length of time she had been engaged in real estate activities and in the employ of Continental, she knew or should have known that the quoted prices were unrealistic.1

The Commission also concluded that evidence pertaining to the identification of Appellant Byer, which was excluded by the hearing officer, should have been admitted in accordance with Section 120.58(l)(a), Florida Statutes (1977). It contends that appellant’s alleged self-identification, coupled with her association with Continental at the time the phone calls were made, establishes her identity as the caller.

1. Caller self-identification is not competent evidence of identity. Killingsworth v. State, 90 Fla. 299, 105 So. 834 (1925); Price v. State, 208 Ga. 695, 69 S.E. 2d 253 (1952); and Burton v. Pacific Mutual Life Insurance Co., 368 Pa. 613, 84 A. 2d 310 (1951).

Although hearsay evidence may be used to supplement or explain other evidence, it is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977); § 120.58(1)(a), Fla.Stat. (1977).

See also: Astore v. Florida Real Estate Commission, 374 So. 2d 40 (Fla. 3d DCA 1979), and Pasco County School Board v. Florida Public Relations Commission, 353 So. 2d 108 (Fla. 1st DCA 1977).

Neither of the witnesses had talked with appellant prior to the incident involved in this case. Neither witness was able to identify the voice of the caller other than by the caller’s statement. The statements of the caller were therefore insufficient to identify appellant.

2. There is no evidence that appellant knew of any unlawful practice conducted by her employer, nor is there any evidence that Continental’s conduct was in any way fraudulent.

In light of our finding that the evidence was insufficient to connect appellant with the telephone calls made to the witnesses, it is not necessary for us to consider whether appellant had knowledge of her employer’s conduct.

We note in passing, however, that Brod v. Jernigan, 188 So. 2d 575 (Fla. 2d DCA 1966) holds that fraud cannot be predicated on statements which are promissory in nature or constitute expressions of intention, so that even if appellant had knowledge of the conduct of Continental, no act on her part has been shown sufficient to constitute a violation of the statutes in question since appellant merely suggested prices to the witnesses, who were in no way guaranteed their property would be sold.

To summarize, the case before this court presents a total absence of evidence to support the decision of the Commission. Appellant was not properly identified as the caller, was not shown to have had knowledge of any unlawful activities by her employer, and she was not shown to have engaged in any unlawful act.

For the foregoing reasons, we reverse the decision of the Florida Real Estate Commission and reinstate appellant’s license.

. The prices for the property involved purchase prices of $2,100 and $1,695 valued for sale at $16,000 and between $8,500 and $9,500 respectively.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …upp.1984); Fla. Admin.Code Rule 38E-5.24(4)(d); Spicer v. Metropolitan Dade County, 458 So. 2d 792 [*964] (Fla. 3d DCA 1984); Campbell v. Central Florida Zoological Society, 432 So. 2d 684 (Fla. 5th DCA 1983); Byer v. Florida Real Estate Commission, 380 So. 2d 511 (Fla. 3d DCA 1980). Thus, the burden of disproving the employer’s allegations never shifted to the employee. For these reasons, I would affirm. . The following interchange took place at the hearing on January 24, 1985, between the appeals referee…
  • Jasper Otis Reeves v. State, 423 So. 2d 1017 (Fla. 4th DCA 1982)
    …witness, never able to positively identify Reeves, stated that a hat introduced into evidence through the police officer was not the one worn by the person who approached the car. . We note in passing that in Byer v. Florida Real Estate Commission, 380 So. 2d 511, 512 (Fla. 3d DCA 1980), it was held that a telephone caller’s self-identification, without more, was “not competent evidence of identity.”…
  • Mack v. Widrowicz, 556 So. 2d 1221 (Fla. 4th DCA 1990)
    …as Dave Widrowicz the appellee, and therefore had insufficient evidence to support her claims for trespass, trover, and conversion. The trial court erred in granting appellee’s motion for directed verdict. In Byer v. Florida Real Estate Commission, 380 So. 2d 511 (Fla. 3d DCA 1980), the third district court held that telephone identification is not competent evidence of identity when no witness is able to identify the voice of the caller other than by the caller’s statement. However, the supreme court, in Ze…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw