Clay v. Virginia Real Estate Bd.

• Decision Date: 09 November 1990
• Docket Number: No. 891580,891580
• Citation: 398 S.E.2d 78
• Parties: Lowell D. CLAY, Appellant, v. VIRGINIA REAL ESTATE BOARD, Appellee. Record
• Court: Virginia Supreme Court

Page 78

398 S.E.2d 78

Lowell D. CLAY, Appellant, v. VIRGINIA REAL ESTATE BOARD, Appellee.

Record No. 891580.

Supreme Court of Virginia.

Nov. 9, 1990.

ORDER

Upon consideration of the record, the briefs, and the arguments of counsel, the Court dismisses this appeal for lack of jurisdiction.

Because this case originated before an administrative agency, the decision of the Court of Appeals is final. Code § 17-116.07(A)(2). The Court finds that the appeal involves neither a matter of significant precedential value nor a substantial constitutional question. Code § 17-116.07(B).

Justice STEPHENSON, with whom Chief Justice CARRICO and Justice WHITING join, dissenting.

I dissent from the order dismissing this appeal for lack of jurisdiction because this case involves a matter of "significant precedential value," Code § 17-116.07(B); i.e., the interpretation of a statute of general application. In accordance with our cases, I would hold that this case warrants our review. See, e.g., Occoquan Land Development Corp. v. Cooper, 239 Va. 363, 367, 389 S.E.2d 464, 466 (1990) (construction of procedural requirements for appeal contained in statute and rule of court); Roller v. Basic Construction Co., 238 Va. 321, 323, 384 S.E.2d 323, 323 (1989) (construction of statute of limitations in workers' compensation case); Board of Sup. v. King Land Corp., 238 Va. 97, 99, 380 S.E.2d 895, 895 (1989) (construction of statute authorizing State Board of Health to promulgate regulations to require proof of financial responsibility for prospective landfill operators); School Bd. of Campbell County v. Beasley, 238 Va. 44, 49, 380 S.E.2d 884, 887 (1989) (determination of proper standard to be employed by Court of Appeals in review of trial court decision in case arising under federal and state statutes regarding special education programs for handicapped children); Race Fork Coal Co. v. Turner, 237 Va. 639, 641 n. 1, 379 S.E.2d 341, 342 n. 1 (1989) (construction of workers' compensation statute); County of Chesterfield v. Johnson, 237 Va. 180, 181-82, 376 S.E.2d 73, 73-74 (1989) (construction of workers' compensation statute).

Turning to the merits, I would reverse the decision of the Court of Appeals. I think the Court of Appeals erred in resorting to rules of statutory construction, rather than applying the "plain meaning" doctrine.

A brief statement of the proceedings and facts will suffice. Lowell D. Clay, a licensed real estate broker, agreed in writing to sell a tract of land he owned to Elizabeth H. Southcott for $16,500. Neither the contract nor any other document disclosed to Southcott the existence of a recorded oil and gas lease on Clay's property.

When a title examination revealed the lease, Southcott sought a reduction of the sale price to $10,000. Clay refused to reduce the price, refunded Southcott's deposit, and subsequently sold the property to a third party for $16,500.

Southcott, disappointed with losing the property, filed a complaint with the Virginia Real Estate Board (the Board). The Board ruled that Clay had violated its Regulation 8.2(36) by withholding from Southcott information readily available to him concerning the character and condition of the property. The Board suspended for one year Clay's broker's license and fined him $1,000.

Clay appealed the Board's ruling to the Circuit Court of Pulaski County. The circuit court reversed the Board's ruling and held that, because Clay was selling his own property, Code § 54-734(1) exempted him from the Board's control.

The Board appealed the decision to the Court of Appeals, pursuant to Code § 17-116.05(1). The Court of Appeals reversed the circuit court's judgment and reinstated the Board's order. Virginia Real Estate Board v. Clay, 9 Va.App. 152, 384 S.E.2d 622 (1989).

Former Chapter 18 of Title 54, now Chapter 21, Title 54.1, the real estate licensing statutes, subjects a real estate broker to its provisions as well as to regulations promulgated by the Board pursuant thereto. However, former Code § 54-734(1), now, with minor changes, Code § 54.1-2103(A)(1), provided, in pertinent part, as follows:

The provisions of [Chapter 18] shall not apply to:

1. Any person ... who as owner ... shall perform [the acts of a broker] with reference to property owned ... by [him] ..., with respect to the property so owned ..., where such acts are performed in the regular course of, or as an incident to, the management of such property and the investment therein.

It is well established that when the language of a statute is clear and unambiguous, its plain meaning must be accepted and the rules of statutory construction are not employed. City of Hopewell v. County of Prince George, 239 Va. 287, 293, 389 S.E.2d 685, 688 (1990); Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987); State Bd. for Contractors v. Sedwick Bldg. Supply, 234 Va. 79, 83, 360 S.E.2d 169, 171 (1987). Thus, in such a case, a court's sole function is to "determine legislative intent from the plain meaning of the words used." Marsh, 234 Va. at 11, 360 S.E.2d at 167. Judge Keith's words on this subject are as alive and vibrant today as they were when written:

[T]he duty of this court is not to make law, but to construe it; not to wrest its letter from its plain meaning in order to conform to...