In re Sabato

560 N.E.2d 62, 1990 Ind. LEXIS 183, 1990 WL 146406
CourtIndiana Supreme Court
DecidedOctober 3, 1990
DocketNo. 45S00-8610-DI-879
StatusPublished

This text of 560 N.E.2d 62 (In re Sabato) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sabato, 560 N.E.2d 62, 1990 Ind. LEXIS 183, 1990 WL 146406 (Ind. 1990).

Opinion

PER CURIAM.

This disciplinary proceeding is before the Court on a single count complaint charging Angelo S. Sabato, the Respondent, with professional misconduct. Specifically, it is alleged that the Respondent improperly represented multiple parties with conflicting interests in violation of Disciplinary Rules 5-105(A) and (B), engaged in conduct adversely reflecting on his fitness to practice law in violation of Disciplinary Rules 1-102(A)(4) and (6), and damaged his client during the course of representation in violation of Disciplinary Rule 7-101(A)(8) of the Code of Professional Responsibility for Attorneys at Law. In accordance with the provisions set forth in Admission and Discipline Rule 283, an appointed Hearing Officer conducted a hearing in this matter and has tendered his report. Neither party has petitioned for review.

Having examined the matters which have been submitted in this case and noting that neither party objects to the report of the Hearing Officer, we now adopt and accept as our own the tendered findings. Accordingly, we find that the Respondent was admitted to the Bar of this Court in 1982 and currently maintains a practice in Mer-rillville, Indians. In March 1984, Respondent was employed to represent Rose M. Augustine and Anthony Rondinelli in the sale of a jointly owned office building located in Merrillville to David Fisher of Miami Beach, Florida Prior to contacting Respondent the sellers had advertised this property in newspapers as a "no money down" deal involving commercial property with full occupancy. The parties to the transaction had already negotiated the terms of the sale.

At the request of the sellers, Respondent prepared a purchase agreement providing that David Fisher pay $185,000.00 for the real estate; the buyer was to obtain a first mortgage on the real estate in the amount of $110,000.00, and the seller was to take back a second mortgage in the amount of $75,000.00. Respondent communicated with Fisher concerning the sale, but when Fisher returned the executed purchase agreement, he did not include the required earnest money deposit and eventually the purchase agreement was abandoned.

Thereafter, the Respondent represented Augustine in various legal matters. During March and April of 1984, the Respondent represented Augustine in the formation of an Indiana for-profit corporation known as "Duneland and Associates, Inc." The only meeting of the Corporation was the organizational meeting at which time Respondent and Augustine were elected directors. On or about April 15, 1984, Augustine conveyed her one-half interest in the Merrillville property to the Duneland entity. Respondent was paid $716.50 by [63]*63Augustine for his legal services in connection with incorporating Duneland.

The Respondent also continued to represent Rondinelli. In June, 1984, Respondent represented Rondinelli in his sale and termination of two partnership interests with an individual. Later that same year, the Respondent represented Rondinelli on a personal guarantee made to a bank in Florida and a collection suit by a newspaper. A negotiated settlement was reached concerning the collection matter, and when Rondi-nelli failed to make payments as agreed, the Respondent negotiated a final settlement for Rondinelli in the spring of 1985.

Rondinelli contacted Respondent in July, 1984, and informed him that another buyer was found for the Merriliville property which was now owned by Rondinelli and Duneland. Thereafter, Rondinelli came to Respondent's office with Mr. Cogdell and explained that Cogdell was interested in purchasing this property for $165,000.00. At this meeting, Respondent informed Cog-dell that he could only represent one party in this transaction and that Cogdell should obtain other counsel. Respondent further advised Rondinelli and Cogdell that this could not be a "no money down" deal as requested in that there was "due on sale" clause in the second mortgage which encumbered the real estate. In response to an inquiry by Rondinelli, Respondent stated the "due on sale" clause could be circumvented by Duneland and Rondinelli placing the Merrillville property in a land trust and selling the beneficial interest of said trust to Cogdell as personal property. Rondinelli and Cogdell agreed to this arrangement and instructed the Respondent to prepare an appropriate purchase agreement.

As requested, the Respondent prepared a purchase agreement for the sale of the Merriliville property by Duneland and Ron-dinelli, as sellers, to Cogdell, as buyer. Duneland and Rondinelli agreed to place this real property in a land trust and retain the beneficial interest. Codgell agreed to buy the beneficial interest for the sum of $157,500.00 under an installment contract providing for no money down and payments for sixty months. The unpaid balance under the contract was due on the fifth anniversary of the contract. At this time, the Merrillville property was encumbered with a first mortgage held by Citi zens Federal Savings and Loan Association of Gary, with an unpaid balance of approximately $44,000.00 and a second mortgage held by Mercantile National Bank of Indiana, with an unpaid balance of approximately $27,000.00. The first mortgage was payable in monthly installments of approximately $1,028.00 and the second mortgage was payable in monthly installments of $225.00 plus interest.

Prior to closing, Rondinelli inquired whether Respondent knew of anyone who would be interested in purchasing the sellers' beneficial interest in the installment sales contract to Cogdell. Respondent was aware of Rondinelli's financial difficulties and that Rondinelli needed cash. Respondent asked Rondinelli to obtain a financial statement and resume on Cogdell and the Respondent would attempt to locate a potential buyer.

As requested, Rondinelli provided the financial statement on Cogdell which showed that Cogdell had a net worth of $189, 791.00. The resume further indicated that Cogdell was very accomplished, well educated and possessed a substantial interest to shelter. After being provided with this information, Respondent attempted to find a party interested in purchasing this beneficial interest.

George and Virginia Dunfee expressed an interest in this contract. These individuals held a beneficial interest in a real estate investment trust in which the Respondent was the trustee. The only asset in this trust was approximately $28,000.00 cash derived from the sale of real estate in Arizona in which Mrs. Dunfee formerly had an interest. The Dunfees advised Respondent that they were interested in having the trust purchase the seller's interest in the Cogdell contract if the amount due under the contract was substantially discounted and secured by sellers' beneficial interest under the land trust to the Merrill-ville property.

[64]*64The Dunfees authorized Respondent to offer Rondinelli and Duneland $129,500.00 for their beneficial interest as follows: a down payment of $23,500.00 and the balance of the purchase price secured by a promissory note in the sum of $106,750.00 with interest at the rate of 11%% per an-num; the note was to be secured by the assignment of the beneficial interest in the land trust.

All parties agreed to the proposal, and this interrelated transaction was conducted by the Respondent in his office on July 28, 1984. The Respondent did not meet with Augustine prior to this closing, but had assured her that her interest would be protected. On July 28, 1984, the following documents were executed by the parties:

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560 N.E.2d 62, 1990 Ind. LEXIS 183, 1990 WL 146406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sabato-ind-1990.