Wolfley v. Real Estate Com'n, 14449

• Decision Date: 17 August 1983
• Docket Number: No. 14449,14449
• Citation: 1983 NMSC 64,668 P.2d 303,100 N.M. 187
• Parties: Howard F. WOLFLEY, Petitioner-Appellant, v. The REAL ESTATE COMMISSION of the State of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 303

668 P.2d 303

100 N.M. 187

Howard F. WOLFLEY, Petitioner-Appellant, v. The REAL ESTATE COMMISSION of the State of New Mexico Respondent-Appellee.

No. 14449.

Supreme Court of New Mexico.

Aug. 17, 1983.

Elvin Kanter, Albuquerque, for petitioner-appellant

Paul Bardacke, Atty. Gen., Serapio Jaramillo, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

STOWERS, Justice.

The New Mexico Real Estate Commission (the Commission) held an administrative adjudication to determine whether probable cause existed for the revocation or suspension of Howard F. Wolfley's (Appellant's) license as a real estate salesman. The Commission suspended Appellant's license for four months. The district court affirmed and Mr. Wolfley appeals. We affirm the district court.

We discuss two issues:

1. Whether Appellant received sufficient notice of the charges against him to allow him due process and time to prepare an adequate defense.

2. Whether there was substantial evidence to support the district court's decision.

1. Notice

Appellant argues that the Notice of Contemplated Action provided him no notice that either his competence as a real estate salesman or the propriety of his conduct was to be placed in question. Appellant states that because he was notified only that the Commission believed that they had sufficient evidence indicating that he had made "various misrepresentations or untrustworthy statements to the Bodes, that he knew or should have known were such," he was essentially accused of fraud. As a result, Appellant argues that he did not receive adequate notice of the charges against him.

The record reveals, however, that it was made clear at the beginning of the hearing that the allegations against Appellant included charges of untrustworthiness, impropriety, and dishonesty. Appellant neither requested a continuance nor raised an objection at that time. Furthermore, the notice to Appellant quoted subsections (A), (B), and (K) of Section 61-29-12, the statute governing real estate brokers and salesmen. NMSA 1978, Secs. 61-29-1 through 61-29-19 (Repl.Pamp.1979 and Cum.Supp.1982) (effective until July 1, 1984). Any one of the sections could justify disciplinary action against a person licensed as a real estate broker or salesman.

The notice also specified conduct on the part of Appellant considered to be in violation of these subsections. The notice did not simply state that the specific acts alleged constituted misrepresentations but also stated that they constituted incompetent, untrustworthy, or improper behavior on the part of the real estate licensee. Appellant was given notice of the factual basis for the charges against him and an opportunity to rebut those charges at a hearing before any adverse action was taken against him by the Commission. Moreover, Appellant was represented by counsel and had ample time prior to the hearing to raise any objections to the Notice of Contemplated Action or to request that a more definite statement be issued. Additionally, Appellant did not object to the adequacy of the notice either at the hearing before the Commission or before district court. It is well established in this state that theories, defenses, or other objections will not be considered when raised for the first time on appeal. In re Will of Skarda, 88 N.M. 130, 537 P.2d 1392 (1975); Groendyke Transport, Inc. v. New Mexico State Corporation Commission, 85 N.M. 718, 516 P.2d 689 (1973). Similarly, issues not raised in administrative proceedings will not be considered for the first time on appeal. Kaiser Steel Corp. v. Revenue Division, Taxation and Revenue Department, 96 N.M. 117, 628 P.2d 687 (Ct.App.), cert. denied, 96 N.M. 116, 628 P.2d 686 (1981). Appellant has presented no evidence of prejudice or extraordinary circumstances sufficient to justify an exception in his case. Therefore, we find that the notice was sufficient to apprise Appellant of the charges against him.

2. Substantial Evidence

Appellant asserts that the Commission's decision should be reversed because there was no substantial evidence that Appellant was guilty of fraud. However, the Commission did not find Appellant guilty of fraud, and therefore we find no merit to this argument.

The Commission found that Appellant violated the specific statutory prohibitions against...