Wisdom v. State Ex Rel. North Dakota Real Estate Commission

403 N.W.2d 19, 1987 N.D. LEXIS 278

• Court: North Dakota Supreme Court
• Decided: March 26, 1987
• Docket: Civ. 11326
• Status: Published

Opinions

MESCHKE, Justice.

The North Dakota Real Estate Commission reprimanded David Wisdom and suspended his license to sell real estate for 30 days. Upon appeal, the district court affirmed and we affirm.

In late 1984, Wisdom, an active real estate salesman, contacted Caroline Lutkat to find out if she would sell her Park Town Mobile Home Park. Lutkat indicated a willingness to sell and outlined expected terms, but she declined to sign a listing agreement. Wisdom promptly obtained an offer from Gordon and lone Eckroth, and another from Joseph Ibach. Neither offer met Lutkat’s terms and she turned them down.

In January, 1985, Lutkat asked Wisdom to submit counteroffers in writing to both the Eckroths and Ibach. Wisdom clearly understood that he was to go to Eckroths first, since Lutkat preferred them as purchasers. Wisdom came back to Lutkat, indicating that Eckroths “are out of it now,” and presented a written counteroffer from Ibach, which Lutkat reluctantly accepted and signed.

Later, Lutkat learned that a contract for deed had been prepared for Wisdom and Ibach to complete the purchase as a partnership. She then contacted Gordon Eck-roth, who told her that Wisdom had not presented her counteroffer to him. Eck-roth said that he and his wife would have purchased at those terms. On March 22, 1985, Lutkat wrote Wisdom, stating that she would not sell to a partnership since her agreement was only with Ibach. Wisdom was dropped from the transaction and Ibach completed the purchase from Lutkat.

Eckroth complained to the North Dakota Real Estate Commission, enclosing a letter by Lutkat outlining her dissatisfaction with Wisdom. After hearing, the Commission found that Wisdom violated subparts (m) and (u) of N.D.C.C., § 43-23-11.1(1), ordered suspension of his license for 30 days for those violations, and additionally directed that he be reprimanded for the “inartful and deficient manner in which he handled the ... transaction ... specifically as to his failure to obtain a written listing agreement, failure to reduce all ... offers ... to writing ... and failure to properly represent the seller ...” The district court affirmed the decision of the Commission that Wisdom violated § 43-23-ll.l(l)(m), but rejected the conclusion that he violated sub-part (u).

On appeal, we review the Commission’s decision rather than the district court’s, and, like the district court, we apply the standards of review for an administrative agency decision given in N.D.C.C., § 28-32-19. North Dakota Real Estate Commission v. Allen, 271 N.W.2d 593 (N.D.1978).

I. License Suspension

The Commission argues that the suspension should be affirmed under sub-part (u) of N.D.C.C., § 43-23-11.1(1), although the district court rejected that reason. Subpart (u) empowers the Commission to suspend or revoke a license to sell real estate for:

“u. Failure of the licensee to reduce an offer to writing where a proposed purchaser requests that such offer be submitted to the seller, ...”

The Commission held that Wisdom violated this provision by failing “to reduce the counteroffer communicated by Caroline Lutkat [seller] to writing and present it to Gordon and lone Eckroth [purchasers], as requested by Mrs. Lutkat.”

Wisdom correctly points out that subpart (u) authorizes suspension only when a prospective purchaser requests a licensee to submit an offer to a seller and the licensee does not do so. Oddly, neither it nor any other subpart expressly authorizes suspension when a licensee fails to submit an offer of the seller to a prospective purchaser. The Commission acknowledges this is “troublesome,” but asks us to construe the provision as also requiring action where a seller requests submission of an offer, so that the statute will not be “left in the uncomfortable position of saying that the agent owes a greater duty to the purchaser than to his principal, the seller.”

“When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C., § 1-02-05. Since the wording of subpart (u) is clear, we cannot expand it as the Commission asks. Accordingly, we agree with the district court that the Commission’s finding, that Wisdom failed to carry Lutkat’s counteroffer to the Eckroths, is not an express statutory ground to suspend his license.

Subpart (m) of N.D.C.C., § 43-23-11.1(1) empowers the Commission to suspend or revoke a license to sell real estate for:

“m. Failing to disclose to an owner his intention or true position if he ... acquires or intends to acquire any interest in or any option to purchase property which has been listed with his office for sale or lease.”

The Commission found that Wisdom violated this provision:

“8. That at the time of presenting [Ibaeh’s] earnest money offer and obtaining Mrs. Lutkat’s signature thereto, she was not advised that [Wisdom] was intending on acquiring an interest in the property for himself through a proposed partnership arrangement with Mr. Ibach.”

Wisdom argues that this finding, insofar as it infers that he intended to acquire an interest in the property before Lutkat accepted Ibach’s offer, is “not supported by a preponderance of the evidence.” N.D.C.C., § 28-32-19(5).

But, we determine that there is sufficient evidence to support the Commission’s finding. Lutkat testified that Wisdom informed her that he might acquire an interest in the property immediately after she signed and accepted the offer. And, Gordon Eckroth testified that he and Wisdom earlier discussed the possibility of purchasing the property as partners, when the Eckroths were preparing to make their offer to purchase. Certainly, “a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

Wisdom also contends that subpart (m) of N.D.C.C., § 43-23-11.1(1) violates the Due Process and Equal Protection Clauses of the United States Constitution. He did not raise these issues in his specifications of error nor in his brief to the district court. Wisdom first raised constitutional issues by moving to amend the judgment of the district court. He has not advanced either persuasive authority or reasoning. Our consideration of a suggested constitutional issue is guided by Justice Vogel’s familiar stricture that “[o]ne who attacks a statute on constitutional grounds, ... should bring up his heavy artillery or forego the attack entirely.” So. Valley Grain Dealers v. Bd. of Cty. Com’rs, 257 N.W.2d 425, 434 (N.D.1977). Under the circumstances, Wisdom has not sufficiently raised a constitutional issue.

We affirm the Commission’s decision to suspend Wisdom’s license.

II. Reprimand

Wisdom argues that the Commission’s decision to also reprimand him was “not in accordance with the law” since the statute empowers it only to “suspend or revoke a license.” N.D.C.C., § 43-23-11.1(1). The Commission simply asserts that “the power to suspend or revoke necessarily carries with it the lesser sanction of reprimand,” without submitting any supporting authority.

Generally, if authorized by law and if justified in fact, imposition of a regulatory sanction by an administrative agency is a discretionary exercise of power. See, e.g., Panhandle Co-op. Ass’n, Bridgeport, Neb. v. E.P.A., 771 F.2d 1149 (8th Cir.1985); Butz v. Glover Livestock Commission Co., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973). The only question here is whether a reprimand is authorized by law. Since a reprimand is essentially akin to a brief suspension, we conclude that it is comprehended within the power to suspend.¹ See also N.D.C.C., § 31-11-05(27) (“The greater contains the less.”).

We affirm the decision of the district court affirming the Commission.

ERICKSTAD, C.J., and GIERKE and VANDE WALLE, JJ., concur.

1 . House Bill 1093 was enacted by the 1987 Session of the North Dakota Legislature and signed by the Governor on March 19, 1987. See 1987 House Journal 293, 2090 and 1987 Senate Journal 1374. As enacted, it amends Section 43-23-11.1 to provide that the North Dakota Real Estate Commission "shall have the power to suspend or revoke a license, impose a monetary fine, or issue a letter of reprimand, or any combination thereof_” [underlining indicates amendment] Other amendments limit the amount of any monetary fine to not more than $1,000, and add a new subpart (w) authorizing disciplinary action for:

"w. Any conduct which in the determination of the commission does not meet the generally accepted standard of expertise, care, or professional ability expected of real estate brokers or salesmen, provided that any disciplinary measures by the commission under this subdivision must be limited to the issuance of a letter of reprimand to the offending licensee.”