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Grimes v. Lottes

Florida Court of Appeals, Second District

February 9, 2018

CHARLES W. GRIMES and BRENDA GRIMES, Appellants,
v.
KEVIN R. LOTTES; ANTHONY F. ROMANO; and DEBRA B. ROMANO, Appellees.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Collier County; Lauren L. Brodie, Judge.

          Chris 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.

          Mark H. Muller of Mark H. Muller, P.A., Naples, for Appellee Kevin R. Lottes. No appearance for remaining Appellees.

          BLACK, Judge.

          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.

         While 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.

          In 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.

         The 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.

         Mr. 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, in part:

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.

         Two 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 ...

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