Hickam v. Colorado Real Estate Commission

• Decision Date: 29 April 1975
• Docket Number: No. 74--264,74--264
• Citation: 36 Colo.App. 76,534 P.2d 1220
• Parties: James A. HICKAM, Plaintiff-Appellant and Cross-Appellee, v. COLORADO REAL ESTATE COMMISSION, Defendant-Appellee and Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 1220

534 P.2d 1220

36 Colo.App. 76

James A. HICKAM, Plaintiff-Appellant and Cross-Appellee, v. COLORADO REAL ESTATE COMMISSION, Defendant-Appellee and Cross-Appellant.

No. 74--264.

Colorado Court of Appeals, Div. III.

April 29, 1975.

Joseph R. Marranzino, Stephen E. Tinkler, Denver, for plaintiff-appellant and cross-appellee.

J. D. MacFarlane, Atty. Gen., Jean Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Asst. Atty. Gen., Michael B. Gorham, Special Asst. Atty. Gen., Denver, for defendant-appellee and cross-appellant.

RULAND, Judge.

Pursuant to the State Administrative Procedure Act, both the Colorado Real Estate Commission and James A. Hickam appeal from the judgment of the district court entered in connection with a review of the Commission's order revoking Hickam's real estate broker's license. See § 24--4--106(9), C.R.S.1973 (1969 Perm.Supp., C.R.S.s963, 3--16--5(9)). We affirm the Commission's order of revocation.

The record reflects that pursuant to written complaint by Lanvail, Inc., the Commission issued a notice to Hickam advising that a hearing would be conducted before a hearing officer to determine if Hickam's license should be suspended or revoked for violation of subsections (b), (e), (o), and (t) of C.R.S.1963, 117--1--12(1). These respective subsections prohibit a broker from: Making any substantial and willful misrepresentation; acting for more than one party in a transaction without the knowledge of all parties thereto; conducting his business in such a manner as to endanger the interests of the public by reason of unworthiness or incompetence; or any other conduct which constitutes dishonest dealing, whether of the same or a different character than that specifically described in the statute.

Based upon the evidence presented, the hearing officer determined that Hickam had violated subsections (b), (e), and (o) and recommended that his license be revoked. The Commission adopted the findings and conclusions of the hearing officer and entered an order revoking Hickam's license. Hickam sought review in the district court, and the district court affirmed the findings and conclusions of the Commission relative to the statutory violations but reversed the order of revocation and remanded the case to the Commission for imposition of a license suspension.

Based on substantial evidence, the hearing officer made and the Commission adopted findings of fact. A summary follows of those which are pertinent to this appeal.

Following the death of Hilda Hildebrand, the co-executors of her estate executed an exclusive listing agreement with Hickam's real estate firm on July 31, 1971, for the sale of two separate tracts of land owned by the decedent in Jefferson County. One tract consisted of approximately 147 acres (parcel 1) and the second tract consisted of approximately 160 acres (parcel 2). The exclusive listing agreement contained the legal description of both tracts, and a diagram showing their general location, but recited a total purchase price of $675,500 (or approximately $2,200 per acre) without any distinction in value or price as between the separate tracts.

On August 16, 1971, Lanvail submitted a written offer for purchase of parcel 1 at a price of $2,000 per acre through John L. Dawson, another licensed broker. This offer was delivered by Dawson to Hickam personally, and Dawson was assured by Hickam that he would forward the offer to the co-executors.

John H. Gayer owned property located between parcels 1 and 2, and had previously transacted real estate business with Hickam. Hickam notified Gayer that a written offer had been made on parcel 1, and Gayer and Hickam then met personally with the co-executors to discuss the terms for purchase of both parcels. As a result of those discussions, Gayer submitted a written offer to purchase both parcels for approximately $1,750 per acre, and Hickam urged the co-executors to accept. During the course of these discussions and subsequent to submission of the written offer by Gayer, Hickam failed to disclose to the co-executors that Lanvail had made an offer on parcel 1 at $2,000 per acre. The co-executors refused to accept the Gayer offer because the purchase price was too low.

On August 19, Dawson contacted Hickam relative to the status of Lanvail's offer, and Hickam did not disclose that this offer had not been forwarded to the co-executors, nor did he advise Dawson that the offer would not be submitted because it covered only parcel 1. Then on August 20, officers of Lanvail made arrangements to with the co-executors and thereupon the co-executors learned of the Lanvail offer for the first time. As a result, the co-executors notified Hickam that his listing was terminated, and Hickam made no objection to the termination.

Based upon the foregoing, the hearing officer concluded that Hickam had violated C.R.S.1963, 117--1--12(1), in willfully misrepresenting to Lanvail that he would forward its offer and in failing to advise Lanvail that the offer had not been forwarded in response to Dawson's inquiry (designated a violation of subsection (b)); in failing to disclose Lanvail's offer at the time, thereby, in effect, representing Gayer by urging the co-executors to accept Gayer's offer at a lower price (designated a violation of subsection (e); and in 'accepting the offer from Lanvail, Inc. and failing to forward it, as well as failing to truthfully respond to inquiries about the status of the offer from Lanvail, Inc., taken together with his efforts to obtain and an offer from John H. Gayer' (designated a violation of subsection (o)).

I. Hickam's Appeal

Hickam first argues that the district court erred in affirming the findings and conclusions of the Commission because an allegedly fabricated copy of the Lanvail offer was introduced into evidence. Specifically, Hickam contends that this exhibit reflected that the co-executors had five days within which to accept or reject the purchase offer, when in fact, the original copy submitted to Hickam for presentation to the co-executors did not contain a time limit for acceptance. On this basis Hickam reasons that the hearing officer likely would have reached a different conclusion as to Hickam's obligation to disclose the offer, and that, in any event, reception of the exhibit violated the best evidence rule. We disagree with both contentions.

The exhibit was introduced in evidence without objection and thus any violation of the best evidence rule has been waived. See Cornucopia Leasing, Mining & Milling Co. v. Kenney, 82 Colo. 264, 259 P. 1033. Moreover, since Hickam acknowledged in cross-examination that he understood the offer to have a five- day expiration period, and further, that Lanvail was most anxious to know within three days whether its offer would be accepted, it is not material that the exhibit may have been inaccurate in this regard.

Hickam next contends that the findings of the hearing officer are incompatible and therefore insufficient as a matter of law. In support of this contention, Hickam notes that he was charged with a violation of subsections (b), (e), (o), and (t) which all involve some form of dishonest conduct. While the hearing officer determined that violation of subsections (b), (e), and (o) occurred, the order stated:

'In view of the foregoing conclusions of law, your hearing examiner does not make any conclusions as to whether there has occurred a violation of (subsection (t)).'

Hickam concludes that since the hearing officer declined to make a specific finding of dishonest dealing under subsection (t), the findings cannot be reconciled. We disagree.

Subsection (t) is general is form and covers any other conduct constituting dishonest dealing which is not specifically described in the other subsections of the statute. Hence, we interpret the hearing officer's conclusion to be that findings relative to a violation of subsection (t) were unnecessary since violations of subsections (b), (e), and (o) had already been established.

Hickam next contends that the Commission's order should be reversed because a seven-month delay occurred between the conclusion of the hearing and entry of the hearing officer's order. We disagree.

Following presentation of the evidence, the hearing examiner directed that a transcript of the proceedings be prepared, and the transcript was not available until approximately four months after the date of the hearing. Within approximately three months thereafter the hearing officer reached his decision. While delay in the disposition of a legal dispute is to be avoided whenever possible, there is no basis for concluding that any delay in this case was prejudicial to Hickam. Cf. Uptime...