Clark v. Tyrrell

Decision Date20 May 2008
Docket NumberNo. A-07-231.,A-07-231.
Citation16 Neb. App. 692,750 N.W.2d 364
PartiesJohn C. CLARK, Appellant and Cross-Appellee, v. Les TYRRELL, Director of the State Real Estate Commission, and The State of Nebraska ex rel. State Real Estate Commission, Appellees and Cross-Appellants.
CourtNebraska Court of Appeals

Robert R. Otte, of Morrow, Poppe, Otte & Watermeier, P.C., L.L.O., Lincoln, for appellant.

Adam J. Prochaska and, on brief, Neal E. Stenberg, of Harding & Schultz, P.C., L.L.O., Lincoln, for appellees.

SIEVERS, MOORE, and CASSEL, Judges.

MOORE, Judge.

INTRODUCTION

John C. Clark appeals from a decision of the district court for Lancaster County affirming the suspension of John's real estate broker's license by Nebraska's State Real Estate Commission (NREC). Les Tyrrell, director of the NREC, and the "State of Nebraska ex rel. State Real Estate Commission" (collectively the State) have cross-appealed. Because the district court's decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable, we affirm.

BACKGROUND

The record shows that John holds a real estate broker's license in both Nebraska and Iowa and is the designated broker for Why USA Independent Brokers Realty (Why USA), a licensed real estate firm in Omaha, Nebraska. Among the real estate agents affiliated with John is his son, David Clark, who is licensed as a real estate agent only in Nebraska.

In January or February 2004, Rex and/or Diane Terry called Why USA and spoke to David about their interest in buying a house within a 50-mile radius of Bellevue, Nebraska. The Terry's asked David to help them in locating such a house, and David identified various houses in Omaha and showed them to the Terrys. The Terrys were also conducting their own research and located a house they wanted to see in Carter Lake, Iowa. The Terrys called David, who agreed to show them the property. It was not until sometime after David and the Terrys arrived at the property that David realized the house was in Iowa and that he was not licensed to show it to them or provide them with assistance in purchasing it.

David spoke with John about the Terrys' interest in the Carter Lake property, and together, David and John determined that if the Terrys pursued their interest, John would be "the essential Realtor of record." The Terrys later called David and told him they were considering making an offer on the Carter Lake house and asked to see it again. David met them at the property and brought with him a standard real estate purchase agreement. David discussed an offer with the Terrys and completed the offer form with them, which the Terrys signed. David then returned to the Why USA offices, where, at some point, John signed the offer as a witness and as an agent. David communicated the offer to the sellers, who made a counteroffer. David communicated the counteroffer to the Terrys, who accepted it. David then performed whatever tasks remained for a buyer's agent to do with respect to closing on the Carter Lake property.

Because of problems that occurred later, which are not relevant to this proceeding, it came to the attention of the real estate commissions in both Iowa and Nebraska that David had represented a buyer with respect to a sale in Iowa without the requisite license and that John, his broker, had permitted, if not facilitated, his doing so. John admitted wrongdoing before the Iowa Real Estate Commission (IREC) and paid a fine.

In July 2005, the NREC initiated proceedings against John, alleging that John had violated Neb.Rev.Stat. § 81-885.24(22) and (29) (Reissue 2003) in various regards. A hearing was held before the NREC on January 18, 2006. The NREC determined that John demonstrated unworthiness to act as a broker in violation of § 81-885.24(29). The penalty phase occurred immediately thereafter, and we have set forth relevant details of what occurred during the penalty phase of the hearing in the analysis section below. The NREC ordered that John's license be suspended for 2 years, all but 60 days of which suspension were to be served on probation. The NREC also ordered that within 1 year, John complete certain continuing education requirements in addition to the usual mandatory continuing education requirements for brokers. John appealed the decision of the NREC to the district court.

On January 30, 2007, the district court entered an order ruling on John's appeal. In considering the NREC's finding of a violation of § 81-885.24(29), the court determined that John's wrongdoing was something more than a simple failure to adequately supervise David. The court found that John knowingly aided David in violating the licensing regulations by representing himself to be the Terrys' agent when, in fact, he was not. The court found that John's actions evidenced a blatant disregard for the rules of his profession and clearly demonstrated unworthiness to act as a broker.

The district court rejected John's argument that because he had already been disciplined in Iowa, subjecting him to discipline in Nebraska constituted double jeopardy. The court found that the present proceeding was not a criminal proceeding and that John had not been subjected to any criminal penalties.

In considering John's argument that the NREC had used his prior disciplinary history to enhance the discipline imposed in this case, the district court noted the process that had been followed by the NREC during the penalty phase of the hearing and set forth the disciplinary history revealed by the record. The court noted that John does not argue that the information brought forth in the hearing before the NREC was incorrect. The court determined that John was not given an enhanced penalty by the NREC, noting that the discipline imposed was well within the range of sanctions permissible by statute. The court determined that the NREC would have been remiss in deciding what sanction, within the permissible range of sanctions, to impose if it had not first looked at John's disciplinary history. The court disagreed with John's suggestion that the due process applicable to criminal sentencing should be applied to civil penalties such as this one. Finally, the court determined that the sanction imposed was not excessive.

On February 28, 2007, John filed notice of his intent to appeal the district court's decision to this court. Also on that date, John filed a motion in the district court seeking a stay of execution, during the pendency of his appeal to this court, of the sanctions imposed by the NREC. John also requested that the district court set the amount of any necessary supersedeas bond. In an order entered on April 5. the court found that the motion fell within the court's discretionary power to grant or deny and granted the motion. The court set the supersedeas bond in the amount of $275. The State takes issue with the court's grant of a stay and has accordingly perfected a cross-appeal to this court.

ASSIGNMENTS OF ERROR

John asserts that the district court erred by (1) concluding that John's discipline by the NREC did not violate double jeopardy in light of the discipline imposed by the IREC, (2) deciding that the NREC's consideration of John's prior disciplinary record before the NREC did not violate due process, (3) finding that John's conduct constituted unworthiness to act as a broker, and (4) determining that the level of discipline imposed by the NREC was not excessive.

On cross-appeal, the State asserts, consolidated and restated, that the district court erred by ordering a stay of execution, pending resolution of this appeal, of the discipline imposed against John.

STANDARD OF REVIEW

Final orders of the NREC are appealed in accordance with the Administrative Procedure Act. See Neb.Rev.Stat § 81-885.30 (Reissue 2003). In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). In an appeal under Neb.Rev.Stat. § 84-917(5)(a) (Cum.Supp.2006), the district court conducts a de novo review of the record of the agency. Tyson Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005). In a de novo review by a district court of the decision of an administrative agency, the level of discipline imposed by the agency is subject to the district court's power to affirm, reverse, or modify the decision of the agency or to remand the case for further proceedings. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996).

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740 N.W.2d 27 (2007). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable. Id. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Id.

ANALYSIS

Double Jeopardy.

John asserts that the district court erred by concluding that John's discipline by the NREC did not violate double jeopardy in light of the discipline imposed by the IREC. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007). The protection provided by Nebraska's double jeopardy clause is...

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