Elliott v. New Mexico Real Estate Com'n
| Decision Date | 03 September 1985 |
| Docket Number | No. 15554,15554 |
| Citation | 705 P.2d 679,1985 NMSC 78,103 N.M. 273 |
| Parties | George W. ELLIOTT, Jr., Petitioner-Appellant, v. NEW MEXICO REAL ESTATE COMMISSION, Respondent-Appellee. |
| Court | New Mexico Supreme Court |
Appellant, George W. Elliott, Jr. (Elliott) appeals from the district court's affirmance of the suspension of Elliott's real estate broker's license by the New Mexico Real Estate Commission (Commission). We affirm.
Elliott's contentions are that the Commission lacked jurisdiction over the parties or the subject matter, and that in addition their suspension was unlawful, arbitrary, and capricious.
Elliott was a licensed New Mexico real estate broker and employed by the Real Estate Company of America (Company) at the time in question. He entered into an agreement with Betty and Theodore Sanville (Sanvilles) and agreed to sell their interest in a New Mexico real estate contract for which he was to receive a selling fee. The agreement also authorized the Company to serve as the exclusive agent of the sale until a certain date, and was written on company letterhead and was signed at the Company office. Elliott sold the contract interest and paid all the commissions due. Elliott paid the Sanvilles most of the balance owed them but held back the sum of $3,110.13 until he received a signed statement that there were no other liens on the property. For a period of time after that the Sanvilles still did not receive their balance, even though Elliott maintains that he attempted to pay them in the form of cashier's checks which he contends were twice lost in the mail. Eventually he gave them a personal check for the balance, which was subsequently dishonored, Elliott maintaining that the Sanvilles attempted to cash the check prematurely.
The Sanvilles filed a complaint with the Commission, and some six months after the transaction closed received the balance, and subsequently advised the Commission that they did not wish to participate in any further proceedings against Elliott. The Commission proceeded, however, and found that Elliott's actions constituted violations of statutes regulating real estate transactions, and suspended his license for one year. See NMSA 1978, Secs. 61-29-1 to -29 (Repl.Pamp.1983).
Elliott filed a petition for writ of certiorari to the district court, in which he requested a review of the Commission's decision. A hearing was held and the district court concluded that it had jurisdiction over the present transaction, and that Elliott was subject to discipline by the Commission. The district court also concluded that there was evidence that the petitioner commingled funds, that a trust account should have been maintained for this transaction, and that the license suspension was within the Commission's authority under Section 61-29-12.
The scope of judicial review of the Commission's decisions is set forth in NMSA 1978, Section 61-1-20 (Repl.Pamp.1981) of the Uniform Licensing Act. See Secs. 61-1-2 and 61-29-13 (applicability of Uniform Licensing Act). The Court is generally to consider only evidence presented at the hearing, and may reverse where administrative decisions are unconstitutional, in excess of their authority or jurisdiction, are procedurally or legally defective, are unsupported by substantial evidence on the record as a whole, or are arbitrary and capricious. Sec. 61-1-20.
Elliott argues that the Commission had no jurisdiction over the parties or the subject matter of the proceeding because the legislative grant of authority contained in NMSA 1978, Section 61-29-1 does not include the sale of a real estate contract. We disagree. The district court found that Elliott is a real estate broker as defined in Section 61-29-2(A) and that he represented himself as such and acted in that capacity. Furthermore, the contract itself indicated that Elliott was being employed in a broker's capacity. He also received a commission for the transaction. Under these facts, there was substantial evidence to support the district court's judgment.
Elliott also argues that even if the subject matter of the transaction was within the jurisdiction of the Commission, its action was expressly excluded by Section 61-29-2(D), which states the provisions of Sections 61-29-1 to -29 do not apply to persons "acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing or exchange of real estate." We agree with the district court that the attorney-in-fact exception of Section 61-29-2(D) does not apply here. Elliott entered into the agreement with the Sanvilles as a broker. When a person agrees to act as a broker for another, he is acting as a fiduciary, in a position of great trust and confidence, and therefore must exercise good faith. Amato v. Rathbun Realty, Inc., 98 N.M. 231, 647 P.2d 433 (Ct.App.1982). The power of attorney was given to Elliott later to enable him to complete the transaction without the Sanvilles being present. However, the fiduciary relationship between the Sanvilles and Elliott was that of broker and client.
Elliott finally asserts that the Commission's suspension action was unlawful, arbitrary, and capricious. Therefore, the issue before the Court is whether or not an administrative decision is reasonable and supported by substantial evidence. Fiber v. New Mexico Board of Medical Examiners, 93 N.M. 67, 596 P.2d 510 (1979). The district court may not on appeal substitute its judgment for that of the administrative body, but is restricted to considering whether, as a matter of law, the administrative body acted fraudulently, arbitrarily, or capriciously, whether the administrative order is substantially supported by evidence, and generally whether the active administrative body was within the scope of its authority. Seidenberg v. New Mexico Board of Medical Examiners, 80 N.M. 135, 452 P.2d 469 (1969). In reviewing the...
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