Robertson v. Carmel Builders Real Estate

2004 NMCA 056, 92 P.3d 653, 135 N.M. 641
CourtNew Mexico Court of Appeals
DecidedNovember 21, 2003
Docket22,176
StatusPublished
Cited by39 cases

This text of 2004 NMCA 056 (Robertson v. Carmel Builders Real Estate) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. Carmel Builders Real Estate, 2004 NMCA 056, 92 P.3d 653, 135 N.M. 641 (N.M. Ct. App. 2003).

Opinion

OPINION

ROBINSON, Judge.

{1} On the Court’s own motion, the opinion filed on this case on November 10, 2003 is hereby withdrawn and the following is substituted therefor.

{2} This controversy arises from a real estate deal gone awry. The parties involved are qualifying broker, Charlie M. Cookson, d/b/a Carmel Builders Real Estate (CBRE); associate broker, Dixie Babcock; Paul and Angela McGregor (“Sellers”); and John Robertson (“Buyer”).

{3} Defendant Cookson appeals the judgment against him and in favor of both Buyer and Sellers for fraudulent misrepresentation. Cookson raises several issues. He alleges: (1) the trial court erred in finding that Babcock and Cookson were in a principal/agent relationship; (2) the trial court did not establish the quantum of proof used to reach its determination; (3) the evidence was insufficient to establish the elements of fraud and the trial court failed to make the necessary findings to establish fraud; and (4) fraud was not pled with sufficient particularity.

{4} Cookson also challenges the propriety of the damages awarded to Buyer and Sellers. He argues: (1) punitive damages were improperly assessed against Cookson under the doctrine of respondeat superior; (2) punitive damages were not separately assessed between Babcock and Cookson; and (3) punitive damages should not have been awarded without actual damages. He contends the trial court erred in awarding attorney fees and costs because it awarded Sellers costs twice and included costs which are not allowed under Rule 1-054(D) NMRA 2000.

{5} We reverse the judgment of the trial court for that portion of the award which involved payment of per diem and travel expenses to Sellers in connection with appearing as witnesses in this matter. We affirm the remainder of the judgment.

BACKGROUND

{6} In December 1994, Babcock formally listed Sellers’ land for a period of six months. When the listing expired, Sellers permitted Babcock to keep a CBRE sign on the property. Cookson, the qualifying broker for CBRE, described the informal listing as an oral “pocket listing,” meaning that Sellers would pay a commission to CBRE if Babcock found a buyer and Sellers accepted the buyer’s offer. He stated that the listing was in effect up until the day of his testimony. Babcock also had a formal listing for Sellers’ home at this time. The house sale discussions were simultaneous with the land sale discussions between Sellers and Babcock.

{7} In January 1997, Buyer’s real estate agent, A.A. (“Web”) Webster contacted Babcock to check the status of the listing on the land and to initiate negotiations on behalf of Buyer. Webster testified that he assumed CBRE had a listing agreement on the land, based on Babcock’s subsequent negotiations with Buyer and on Cookson’s letters reflecting knowledge of the details of the transaction. Further, CBRE never informed Webster that it had no listing agreement. Webster testified that Babcock “implied” that she had a listing agreement or “had one on the way” and said that Seller had told her to bring an offer and she would get a listing. Webster also testified, on cross examination, that he could have contacted Sellers directly if Babcock had no listing agreement, but that Babcock directly told him she had a listing agreement. If Babcock had informed him there was no listing agreement, Webster would not have been required to split a commission on the sale. The trial court found that Babcock “represented that she had a listing” for the land, and solicited an offer from Buyer.

{8} Cookson testified that Babcock was an independent contractor, not an employee of CBRE, that he would not have received any part of a commission on the land sale, and did not receive any commission on the sale of Sellers’ house. He testified that Babcock paid him a monthly fee only, and it would not matter whether she sold one piece of property or fifty. Cookson also testified that he was aware of Buyer’s offer on the day Webster delivered the purchase agreement to CBRE, and that he discussed with Babcock how to get a signed listing agreement because “that’s how Realtors get paid.” He believed Babcock had a duty to keep him informed of the sale, and she kept him informed on a routine basis. Cookson was also aware of two contingencies in the purchase agreement: dirt work and financing.

{9} Mr. McGregor testified that he would have given Babcock a listing if the sale had gone through, and that Babcock tried to convince Sellers to give her the listing several times. Babcock always used CBRE letterhead, CBRE fax cover sheets, and signed documents as an associate broker for CBRE when dealing with Sellers, and had Cookson’s authorization to do so. Babcock never said she was an independent contractor.

{10} When Webster notified Babcock that Buyer was interested in purchasing the land, Babcock faxed him a three-year-old disclosure statement Sellers made when they originally gave Babcock a listing on the land. The out-of-date disclosure, which indicated that utilities were at the property line of the land, was no longer accurate because Sellers had sold an adjacent lot. Neither Babcock nor Cookson informed Sellers that the old disclosure had been sent to Webster.

{11} On January 21, 1997, Babcock called Sellers and asked whether the land was still for sale. Sellers told Babcock they would sell the land for $100,000. The same day, Buyer made a written offer for $62,500. Babcock presented Buyer’s offer to Sellers and when Mr. McGregor saw the offer, he told Babcock that he would not take less than $100,000 for the land. Sellers submitted a counter offer for $100,000 with a January 28, 1997 deadline. Buyer submitted a counter offer on January 27, 1997 of $80,000, which expired at 6:00 p.m. January 29,1997.

{12} Without making any other written offers, Sellers told Babcock they would not sell for less than $100,000. Babcock told Buyer that Sellers would take no less than $100,000. Buyer made an offer to purchase the land for $100,000 on January 30, 1997, assuming the accuracy of the 1994 disclosure statement Babcock had faxed to Webster, stating that the utilities were on the property. Buyer’s offers were contingent on getting dirt work done on the land and obtaining financing.

{13} After Babcock informed Sellers that Buyer had consulted an attorney regarding the utilities, Sellers informed Babcock they did not want to go through with the sale, even if the offer had been for $150,000. Sellers did not acknowledge Buyer’s $100,000 offer in any way, and explicitly told Babcock they did not intend to proceed in any further dealings with Buyer. Buyer’s agent testified that Babcock gave him a “verbal Counteroffer Number 3,” which Buyer accepted, although there was nothing in writing to show Sellers had made a counteroffer. Sellers believed that negotiations were at an end, there was no contract of sale, and the negotiations were “dead,” and told Babcock so on January 29.

{14} Cookson knew Sellers considered the deal to be “dead.” Cookson testified that he attempted to get a written listing agreement from Sellers even after Sellers had told Babcock the deal was dead “so we would be paid.” (Emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 056, 92 P.3d 653, 135 N.M. 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-carmel-builders-real-estate-nmctapp-2003.