CHARLES W. GRIMES and BRENDA GRIMES, Appellants,
KEVIN R. LOTTES; ANTHONY F. ROMANO; and DEBRA B. ROMANO, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Collier County; Lauren L. Brodie,
W. Altenbernd of Carlton Fields Jorden Burt, P.A., Tampa;
Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa
(substituted as counsel of record) for Appellants.
H. Muller of Mark H. Muller, P.A., Naples, for Appellee Kevin
R. Lottes. No appearance for remaining Appellees.
Charles and Brenda Grimes challenge the final summary
judgment entered in favor of Kevin Lottes, a board-certified
real estate attorney who was retained by Anthony and Debra
Romano to represent them in the purchase of the Grimeses'
home. Because genuine issues of material fact remain in
dispute with regard to whether Mr. Lottes committed either a
fraudulent or negligent misrepresentation or a fraudulent or
negligent concealment by falsely assuring Mrs. Grimes, who
was also the listing real estate agent, that no
buyer's-side real estate broker commission would be
payable in the transaction, we reverse.
looking for a home in the Naples area in 2014, Mr. Romano
located the Grimeses' home through an online search. The
home was listed with Premier Sotheby's International
Realty (Sotheby's), and after reviewing Sotheby's
website and other online sources, Mr. Romano learned that
Mrs. Grimes, a Sotheby's agent, was both the listing
agent and the homeowner. So on January 15, 2015, Mr. Romano
sent a message to Mrs. Grimes using the electronic form on
Sotheby's website asking to see the home. But Mrs. Grimes
was a new agent with Sotheby's and had not been trained
on Sotheby's message routing system-a prerequisite to
receiving messages-so Mr. Romano's message was not routed
to her. Instead Mr. Romano's message was routed to other
Sotheby's agents as a "lead" until it was
ultimately accepted by Robert Hall. Mr. Hall called Mr.
Romano and informed him that he worked for Sotheby's and
agreed to set up a viewing of the Grimeses' home. Mr.
Hall then contacted Mrs. Grimes and arranged for the showing.
Although Mrs. Grimes and Mr. Hall both worked for
Sotheby's, they had never met.
preparation for the showing, Mr. Hall researched the
Grimeses' home and neighborhood; he also researched other
homes that might interest the Romanos. He spoke with Mr.
Romano on the phone several times before the showing and sent
Mr. Romano an email with several other potential listings.
Mr. Hall was also in contact with Mrs. Grimes before the
showing and learned that she was not only the listing agent
but also the homeowner.
Romanos met Mr. Hall at the Grimeses' home on January 23,
and Mr. Hall presented them with a packet of information
about the home. Mr. Hall introduced the Romanos to Mrs.
Grimes as his clients and provided everyone with his business
card. After guiding the Romanos and Mr. Hall on a thorough
tour of her home, lasting thirty to forty minutes, Mrs.
Grimes excused herself and allowed the group to continue
viewing the home at their leisure. After Mr. Hall and the
Romanos departed, Mrs. Grimes called Mr. Hall requesting
feedback on the showing. Mr. Hall agreed to keep her informed
if the Romanos had interest in the home; the two had no
further contact until after the litigation began.
Hall called Mr. Romano multiple times after the showing and
offered to put a contract together. Mr. Romano declined Mr.
Hall's offer, and ultimately, on February 8, Mr. Romano
informed Mr. Hall that his services would not be needed.
During this same time frame, Mr. Romano retained Mr. Lottes
in order to obtain a legal opinion as to whether the work Mr.
Hall did in arranging the home visit and conducting the
related research would constitute a "procuring
cause" such that Mr. Hall might be entitled to a
commission. Based on Mr. Romano's representations to Mr.
Lottes regarding Mr. Hall's involvement, Mr. Lottes
opined that Mr. Hall would not be entitled to a commission.
In an email to Mr. Lottes dated February 7, Mr. Romano
requested that Mr. Lottes contact Mrs. Grimes on behalf of
him and his wife with an offer to purchase her home with Mr.
Lottes' assurances that there would be no
buyer's-side commission. Mr. Romano's email provides,
Because there is a significant variance between the asking
price and our offer and because we have no agent to manage
the dialogue or negotiations, I would like it to be clear in
the offer that I would be happy to talk with the owner
directly about the "logic" behind our offer as well
as any counteroffer.
In addition, as we discussed on the phone, I would like to
use the language you suggested with regard to the fact that
there will be no buyer[']s realty commissions and that we
would expect that amount to be reflected in any agreement.
days later, Mr. Lottes sent the email that forms the crux of
this case to Mrs. Grimes:
I represent Mr. Anthony F. Romano and his wife, Debra B.
Romano, as their attorney in connection with the Romanos'
attached Buyer-executed offer to purchase the above
referenced property of which you are the owner and the
listing agent. Please review the attached cash offer and, if
it is acceptable, execute ...