ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION
This matter is before me pursuant to the Appellant's Motion for reconsideration of the Final Order dated September 14,
2000. The Order affirmed the decision of the South Carolina Real Estate Commission (Commission) which found that the
Appellant violated S.C. Code Ann. §§ 40-57-135(D)(4) and 40-57-145(A)(13) and (15) (Supp. 1998). Counsel for both
parties presented oral arguments at the Administrative Law Judge Division (ALJD) on November 14, 2000.
After considering the positions of the parties, I conclude that the Motion for Reconsideration must be denied.
ANALYSIS
A. Criteria for Reconsideration
A Motion for Reconsideration will not be granted unless the requirements are satisfied. See Bennett v. City of Clemson,
293 S.C. 64, 358 S.E.2d 707 (1987). The requirements are established by ALJD Rule 29(D) and Rule 60(B), SCRCP. The
required grounds are as follows:
1. mistake, inadvertence, surprise, or excusable neglect;
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(b);
3. fraud, misrepresentation, or other misconduct of an adverse party;
4. the judgment is void; or
5. the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Thus, the question here is whether the Appellant's reasons for the reconsideration fit the required criteria listed in the five
enumerated provisions of ALJD Rule 29(D). Thus, the reasons given by the Appellant set the controlling parameters for
deciding the Motion for Reconsideration.
B. Grounds for Reconsideration Considered
The Appellant raises the following grounds for reconsideration:
1) The Final Order is founded on a mistake and an error of law in that a dual agency relationship may not be created against
the will and without the consent of the parties.
2) The Final Order is founded on a mistake in that the Commission's decision was arbitrary and capricious and therefore an
abuse of discretion when no evidence was proffered as to what constitutes a "reasonable" time.
3) The Final Order is founded on a mistake in that it failed to recognize the violation of S.C. Code Ann. §§ 40-1-190(A)
and 40-57-210 (Supp. 1998).
C. Criteria of ALJD Rule 29(D) Applied to Grounds
"The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle him to
relief." Bowers v. Bowers, 304 S.C. 65, 403 S.E.2d 127, 129 (Ct. App. 1991). In the instant case, Appellant did not meet
this burden.
This tribunal found that there was substantial evidence to support the Commission's finding that the Appellant violated
S.C. Code Ann. § 40-57-145(A)(13) and (15) (Supp. 1998) because she failed to get the Ridgeways or Ms. Wheaton to sign
a dual agency disclosure and consent form. The Appellant asserts that this finding is a mistake and an error of law in that a
dual agency relationship may not be created against the will and without the consent of the parties. Even though Appellant
argues that she never intended to create an agency relationship between herself and Ms. Wheaton, she signed an agreement
with Ms. Wheaton which stated that Ms. Wheaton, as the owner of the property, was employing Appellant to be the "sole
and exclusive agency"for the property. Since Appellant had also agreed to represent the buyers in this transaction, there is
substantial evidence to support a finding that a dual agency relationship was created which required the prior informed and
written consent of all the parties. S.C. Code Ann. § 40-57-137(M) (Supp. 1998).
Whether an agency relationship exists is a question of fact. American Fed. Bank v. Number One Main Joint Venture, 321
S.C. 169, 467 S.E.2d 439 (1996). Under the Administrative Procedures Act, this tribunal "shall not substitute its judgment
for that of the agency as to the weight of the evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp.
1999). Therefore, I find that substantial evidence exists to support the Commission's findings that Appellant violated S.C.
Code Ann. § 40-57-145(A)(13) and (15) (Supp. 1998).
Appellant's second ground for reconsideration asserts that this tribunal's Final Order is founded on a mistake because the
Commission's decision was arbitrary and capricious when no evidence was proferred as to what constitutes a "reasonable"
time. S.C. Code Ann. § 40-57-135(D)(4) (Supp. 1998) provided that "a listing or buyer's representation agreement must be
in writing and must set forth all material terms of the parties' agency relationship . . . ." In conjunction with this statute,
S.C. Code Ann. § 40-57-139(A)(1) (Supp. 1998) states that a licensee shall provide in a timely manner to all buyers and
sellers with whom the licensee works "a meaningful explanation of agency relationships in real estate transactions." The
Commission and the South Carolina Department of Labor, Licensing and Regulation read these two statutes together and
hold that these statutes create a duty upon an agent to timely provide to buyer clients a written representation agreement
setting forth the required material terms of the parties' relationship. The Commission found that Appellant did not timely
provide the Ridgeways with this agreement and, therefore, violated S.C. Code Ann. § 40-57-135(D)(4) (Supp. 1998). It is
well settled South Carolina law that an administrative agency's construction of its statutes will generally be respected.
"The construction of a statute by the agency charged with its administration will be accorded the most respectful
consideration and will not be overruled absent compelling reasons." Dunton v. South Carolina Board of Examiners in
Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987). I find that substantial evidence exists to support the
Commission's finding that Appellant violated S.C. Code Ann. § 40-57-135(D)(4) (Supp. 1998) and that the Commission's
decision was not arbitrary and capricious.
In her third ground for reconsideration, Appellant asserts that the Final Order is founded on a mistake in that it failed to
recognize the violation of S.C. Code Ann. §§ 40-1-190(A) and 40-57-210 (Supp. 1998). I find that S.C. Code Ann. §§ 40-1-190(A) and 40-57-210 was not violated because this statute protects communications made by witnesses or
complaintants to investigative committees, except upon proof that the communication was made with malice. This statute
does not protect communications made by the respondent to the investigative committee.
Further, as to Rule 60(b)(2), the Appellant does not assert that the decision should be changed on the basis that newly
discovered evidence has now come to light and that consideration of that evidence will require a different decision.
Similarly, Rule 60(b)(3) is not implicated since there is no allegation that the decision results from fraud,
misrepresentation, or other misconduct of an adverse party.
Additionally, as to Rule 60(b)(4), clearly no basis exists to find the judgment is void since generally a judgment is void
only when the decision is rendered by an adjudicator having no jurisdiction to render such a decision. Thomas & Howard
Co. Inc. v T.W. Graham and Co., 318 S.C. 286, 457 S.E.2d 340 (1995). Here, jurisdiction is well established. See S.C.
Code Ann. § 1-23-310 et seq. (1986 and Supp. 2000).
Finally, nothing in the motion satisfies Rule 60(b)(5). No support exists showing that the judgment has been satisfied,
released, or discharged, or that a prior judgment upon which the current judgment is based has been reversed or otherwise
vacated, or that it is no longer equitable that the judgment should have prospective application. Since the Appellant has
met none of the criteria set forth by ALJD Rule 29(D) and Rule 60, SCRCP, this Motion must be denied.
D. Issues Preserved on Appeal
Pursuant to ALJD Rule 29(C), all issues raised but not addressed are deemed denied.
ORDER
Based upon the Motion filed and the law as applied to that Motion, it is hereby
ORDERED that the Motion for Reconsideration filed by the Appellant is denied.
AND IT IS SO ORDERED.
________________________________
C. Dukes Scott
Administrative Law Judge
February 21, 2001
Columbia, South Carolina |
