Haller v. State ex rel. State Real Estate Commission
Haller v. State ex rel. State Real Estate Commission
Opinion of the Court
This is a proceeding by the State Real Estate Commission against Therese C. Haller, a real estate saleswoman, for an alleged violation of rules of the commission. Following a hearing on the charges, the commission found that the defendant had violated Rule 24(b), now Rule 6(3) (b), of the rules of the State Real Estate Commission, and suspended her real estate salesman’s license for 30 days. Upon appeal to the District Court for Douglas County on the record made before the State Real Estate Commission, the court found that the findings of the real estate commission were in error, and that the real estate license should not have been suspended. The District Court then reversed and vacated the order of suspension and dismissed the proceeding. The commission has appealed.
Vintage, Inc., a real estate firm holding a broker’s license, was the exclusive sales representative for a real estate development in Sarpy County, Nebraska. In 1974, the developer and Vintage were engaged in a sales promotion which involved the purported sale of an insignificant item of personal property by the purchaser to the seller for $1,000. No money was ever given to the buyer, but the amount was credited as part of the downpayment on the house. Sometimes the personal property was transferred, but often nothing was ever turned over to the seller. The promotion resulted in an effective reduction of the purchase price by $1,000.
The appellee, Therese C. Haller, was employed by
A similar transaction was conducted by the appellee with another purchaser in January of 1975. Each transaction is the basis of a separate charge in the complaint filed against the appellee.
On July 18, 1975, the State Real Estate Commission filed charges against the appellee and another salesman, as salesmen, and against the appellee’s supervisor, and Vintage, Inc., as brokers. It was alleged that in the transactions involved, they had all violated a federal statute which makes it unlawful to knowingly make any false statement or representation, or unlawfully overvalue any land upon any application or purchase agreement for the purpose of influencing in any way the action of any institution whose accounts are insured by the Federal Savings and Loan Insurance Corporation. The charges also alleged that they had all violated Rule 24(b), now
Under section 81-885.24, R. R. S. 1943, the commission has power to. revoke or suspend any license if the licensee has been found guilty of any of numerous specified unfair trade practices, including the violation of any rule or regulation promulgated by the commission in the interest of the public, or actions demonstrating unworthiness or incompetency to act as a broker or salesman. Rule 24(b), now Rule 6(3) (b), provides that actions demonstrating unworthiness shall include, but not be limited to, “Representing to any lender, guaranteeing agency, or any other interested party, either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon.”
Following hearing, the real estate commission suspended the broker’s license of appellee’s supervisor and that of Vintage, Inc., for a period of 90 days, and suspended the salesman’s license of the appellee for a period of 30 days. The proceeding against the other salesman was dismissed. Only the appellee appealed to the District Court. The District Court, under the provisions of section 81-885.31, R. R. S. 1943, considered the matter de novo upon the record without additional evidence. The court found that the findings of the real estate commission were in error, reversed and vacated the order of suspension, and dismissed the proceeding. The State Real Estate Commission has appealed to this court.
The fundamental issue here involves the standard to be used in a judicial review of orders of the State Real Estate Commission made and entered within its statutory power and jurisdiction. The District Court, in following the statutory mandate of section 81-885.31, R. R. S. 1943, substituted its judgment for that of the real estate commission.
Section 81-885.31, R. R. S. 1943, as so construed, does not provide for a de novo review in the District Court in the sense that the court may substitute its own judgment for that of the State Real Estate Commission. In a proceeding to review an order of the State Real Estate Commission the questions to be determined are whether the order of the commission was supported by substantial evidence, whether the commission acted within the scope of its authority, and whether its action was arbitrary, capricious, or unreasonable. Herink v. State ex rel. State Real Estate Commission, supra.
The order of the State Real Estate Commission in the case now before us is supported by substantial evidence. The commission acted within the scope of its authority, and its action was not arbitrary, capricious, or unreasonable. The judgment of the District Court is reversed and the order of the State
Reversed and remanded.
Reference
- Full Case Name
- Therese C. Haller v. State of Nebraska ex rel. State Real Estate Commission of the State of Nebraska
- Cited By
- 6 cases
- Status
- Published