Pargin Realty ERA v. Schmidt

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 PARGIN REALTY ERA, 3 Plaintiff-Appellee, 4 v. No. 31,689 5 CARL SCHMIDT, 6 Defendant-Appellant, 7 and 8 DESERT SAGE REALTY, 9 Defendant. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Beatrice J. Brickhouse, District Judge 12 Ronald T. Taylor 13 Albuquerque, NM 14 for Appellee 15 Carl Schmidt 16 Albuquerque, NM 17 Pro se Appellant 18 MEMORANDUM OPINION 1 SUTIN, Judge. 2 Carl Schmidt appeals from the district court’s judgment confirming an 3 arbitration award against him, individually and as qualifying broker of Desert Sage 4 Realty (Desert Sage). At issue in the underlying arbitration proceedings was a real 5 estate commission dispute. Relying on a number of technical and procedural 6 arguments, Mr. Schmidt essentially contends that the district court erred in enforcing 7 the award against him, personally, rather than against the realty company itself. We 8 hold with substance over form and affirm the district court’s judgment confirming the 9 arbitration award. 10 BACKGROUND 11 From the record on appeal, the following documentary history appears. The 12 Greater Albuquerque Association of REALTORS®1 (the Albuquerque Association) 13 sent a November 18, 2008, letter addressed to two sides of a commission dispute. One 14 side consisted of Cynthia J. Harris and John van Nortwick at Pargin Realty ERA 15 (Pargin). The other side consisted of Carl J. Schmidt at Desert Sage Realty. The [1] 17 REALTOR® “is a registered mark which identifies a professional in real estate 18 who subscribes to a strict Code of Ethics as a member of the NATIONAL 19 ASSOCIATION OF REALTORS®[.]” [2] 1 letter’s “Reference” stated, “Arbitration matter, Case #40/07A between Cynthia 2 Harris/John van Nortwick and Carl Schmidt[.]” 3 The purpose of the letter was to discuss a pre-hearing process to set a date for 4 an arbitration hearing, among other things. The letter stated that the arbitration panel 5 would be selected from the membership of the Albuquerque Association’s 6 professional standards committee. Mr. Schmidt responded in a December 8, 2008, 7 letter, raising, among other things, a complaint that the Albuquerque Association was 8 ignoring Standard of Practice 17-4, contained in the Code of Ethics and Arbitration 9 Manual of the National Association of Realtors. Mr. Schmidt contended that this rule 10 excluded him “as a proper party Respondent.” 11 On July 15, 2009, a six-member panel of the professional standards committee 12 of the Albuquerque Association (the Arbitration Panel) heard evidence in Case 13 #40/07A in order to resolve the dispute. At the opening of the hearing, the Arbitration 14 Panel chairperson announced that Mr. Schmidt was the Respondent and that he was 15 represented pro se. During the hearing, Mr. Schmidt stated that he was the qualifying [3] 1 broker of Desert Sage.2 The Arbitration Panel issued an Award of Arbitrators (the 2 Award) that stated, in part, that 3 the Hearing Panel [duly appointed] to hear and determine an arbitrable 4 dispute between John van Nortwick and Cynthia Harris and Pargin 5 Realty ERA, Complainants[] vs. Carl Schmidt and Desert Sage Realty, 6 Respondents, . . . having heard all the evidence and arguments of the 7 parties, a majority of the panel finds there is due and owing $3420.00 to 8 be paid by DESERT SAGE . . . to PARGIN . . ., which shall be paid 9 within ten . . . days following receipt of the award by either (1) paying 10 the award to the party[] named in the award or (2) depositing the funds 11 with the . . . Albuquerque Association . . . to be held in a special Board 12 escrow account maintained for this purpose. . . . Requests for procedural 13 review of the arbitration hearing procedures must be filed in writing with 14 the Chairperson of the . . . Albuquerque Association . . . within twenty 15 . . . days after the award has been served on the parties. The request for 16 procedural review must cite the alleged procedural deficiencies or other 17 irregularities the party believes constitute a deprivation of due process. 18 On September 15, 2009, the Albuquerque Association’s six-member “Procedural 19 Review Tribunal” (the Review Tribunal) conducted, at Mr. Schmidt’s request, a 20 procedural review of the arbitration hearing in Case #40/07A. The Review Tribunal 21 affirmed “the award of the arbitration Hearing Panel.” [2] 16 As the Appellant in this matter, it was Mr. Schmidt’s burden “to bring to this 17 Court a sufficient record to demonstrate the validity of his contentions and to cite the 18 pertinent portions of the record in his brief.” Drake v. Trujillo, 1996-NMCA-105 , 19 ¶ 18, 122 N.M. 374 , 924 P.2d 1386 . Mr. Schmidt has provided an insufficient record 20 of the arbitration transcript, thus leaving this Court with no record of his position 21 before the Arbitration Panel, including whether he apprised the Arbitration Panel of 22 his position that his liability and that of Desert Sage were distinguishable. [4] 1 On January 6, 2010, Pargin filed a “Suit for Monies Owing and Malicious 2 Breach of Agreement” in district court against Carl Schmidt individually and as 3 qualifying broker of Desert Sage. The action alleged that Mr. Schmidt had “agreed 4 to abide by the Rules and Regulations of the [Albuquerque Association]” and had 5 “failed and refused to pay the monies as ordered by the [Albuquerque Association] 6 and pursuant to the Rules and Regulations of the [Albuquerque Association].” And 7 the action asserted intentional and malicious breach of the agreement and sought 8 compensatory and punitive damages and attorney fees. Simultaneously with its suit, 9 Pargin filed an “Arbitration Certificate” in the district court pursuant to Second 10 Judicial District Court LR 2-603 NMRA. The arbitration certificate certified that 11 Pargin sought “only a money judgment and the amount sought does not exceed 12 twenty-five thousand dollars ($25,000.00) exclusive of punitive damages, interest, 13 costs and attorney fees.” 14 Mr. Schmidt, pro se, filed an answer and motion to dismiss and a first amended 15 answer. Among his affirmative defenses, Mr. Schmidt asserted that the Arbitration 16 Panel made no award against him, lack of service of process, that no evidence was 17 presented against Desert Sage, and Desert Sage was never served with process and 18 never made an appearance at the time of the arbitration proceeding, that Mr. Schmidt [5] 1 was neither an agent for service of process, an employee, nor an owner of Desert Sage, 2 and that Desert Sage had not been served with process in the present action. 3 In April 2010, the district court issued an order appointing an arbitrator for 4 court-annexed arbitration pursuant to LR 2-603. And on July 21, 2010, the court- 5 appointed arbitrator, having heard evidence, issued an arbitration award in favor of 6 Pargin and against Mr. Schmidt and Desert Sage in the amount of $3,125.00. Mr. 7 Schmidt filed notice of appeal from this arbitration award to the district court pursuant 8 to LR 2-603. The award and the appeal received the same docket number as the 9 action by Pargin in which the matter had been referred to the arbitrator who issued the 10 award. 11 On August 27, 2010, Pargin filed a motion to amend the title of the complaint 12 to conform to its allegations. The amendment, which the district court allowed, read 13 “First Amended Suit to Enforce Arbitration Award, [Judgment] for Monies Owing 14 and Damages for Malicious Breach of Agreement[.]” The court’s order allowing the 15 amendment stated that Pargin was “entitled to Amend the Complaint . . . as a petition 16 to enforce . . . arbitration award and for monies owing pursuant to the Arbitration 17 Award[.]” 18 Mr. Schmidt filed several motions to dismiss, a motion for judgment on the 19 pleadings, and a motion for summary judgment, all of which were denied by the [6] 1 district court. The district court appears to have verbally indicated to the parties what 2 its decision would be, and Pargin appears to have submitted a proposed form of 3 judgment. Mr. Schmidt on September 26, 2011, filed “Defendants[’] Objection to 4 Plaintiff’s Proposed [Judgment.].” Mr. Schmidt listed objections as to form, content, 5 and attorney fees. He continued to assert that he had no vicarious, personal, or 6 individual liability. Mr. Schmidt also filed a “Request for Findings of Fact and 7 Conclusions of Law[,]” in which he offered findings of fact and conclusions of law 8 for adoption by the court. This request was denied based on the court’s determination 9 that “the evidence [did] not support them.”3 10 The district court entered a judgment adopting arbitration award on October 4, 11 2011. The judgment was entered “for Pargin . . . and against Carl Schmidt 12 [i]ndividually and as [q]ualifying [b]roker of Desert Sage . . . in the amount of 13 $3,420[.]” The court also awarded $8,143.36 in attorney fees and costs. Mr. Schmidt 14 filed a notice of appeal to this Court. [3] 16 The record on appeal demonstrates that the evidence before the district court 17 consisted of exhibits attached to the parties’ respective motions, including, among 18 other things, correspondence between the Albuquerque Association and Schmidt, 19 affidavits, excerpts from the National Association of Realtors Arbitration Manual, a 20 partial transcript of the proceedings before the Arbitration Panel, the Award, and the 21 Review Tribunal’s decision. [7] 1 Mr. Schmidt, pro se, filed a brief in chief and a reply brief in this Court. He 2 nowhere indicates that he is representing Desert Sage. No attorney filed an 3 appearance on behalf of Desert Sage and none has appeared for that entity on appeal. 4 On appeal, Mr. Schmidt requests that we reverse the district court’s judgment. 5 In support of his request, Mr. Schmidt argues that, owing to alleged defects in 6 Pargin’s complaint, the district court lacked jurisdiction to entertain or to proceed with 7 this case from the beginning. Mr. Schmidt also argues that he was not a proper party, 8 that the district court erred in enforcing the arbitration award against him, and that the 9 district court erred in attaching individual or vicarious liability to him for the acts or 10 omissions of Desert Sage. Additionally, Mr. Schmidt argues that because Desert Sage 11 was not served with process, the district court lacked jurisdiction to enter an award 12 against it, that the district court erred in failing to make findings and conclusions, and 13 that the court erred in awarding attorney fees to Pargin. We conclude that none of Mr. 14 Schmidt’s arguments warrant reversal; accordingly, we affirm the district court’s 15 judgment. 16 DISCUSSION 17 As a threshold matter, we must resolve the parties’ disparate views of the legal 18 nature of the proceedings in the district court. Mr. Schmidt’s briefing is based mainly 19 upon his theory that Pargin, by filing its “complaint” in the district court, commenced [8] 1 a lawsuit based on breach of contract for the collection of a commission under the 2 Real Estate Brokers and Salesmen Act, NMSA 1978, §§ 61-29-1 to -29 (1959, as 3 amended through 2011), and particularly under Section 61-29-16. Section 61-29-16 4 provides that: 5 No action for the collection of a commission or compensation 6 earned by any person as a qualifying broker or an associate broker 7 required to be licensed under the provisions of [the Real Estate Brokers 8 and Salesmen Act] shall be maintained in the courts of the state unless 9 such person was a duly licensed qualifying broker or associate broker at 10 the time the alleged cause of action arose. In any event, suit against a 11 member of the public as distinguished from any person licensed under 12 [the Real Estate Brokers and Salesmen Act] shall be maintained only in 13 the name of the qualifying broker. 14 In keeping with his view, Mr. Schmidt devotes a significant portion of his argument 15 to the application of the Real Estate Brokers and Salesmen Act, as well as related 16 provisions of the New Mexico Administrative Code, and case law interpreting Section 17 61-29-16. Additionally, he argues a number of procedural failures on behalf of Pargin 18 and the district court under the New Mexico Rules of Civil Procedure. 19 Pargin, on the other hand, views this case as falling within the Uniform 20 Arbitration Act (the Act), NMSA 1978, §§ 44-7A-1 to -32 (2001). Pargin contends 21 that its complaint in the district court did not commence a “formal lawsuit” but rather 22 constituted a petition to enforce an arbitration award in accordance with the Act. For 23 reasons that we explain in the following paragraphs, we agree with Pargin. [9] 1 The Act 2 “The . . . Act . . . governs an agreement to arbitrate made on or after [July 1, 3 2001,] the effective date of [the A]ct.” Section 44-7A-3(a). According to the Act, 4 “[a]fter a party to an arbitration proceeding receives notice of an award, the party may 5 make a motion to the [district] court for an order confirming the award[.]” Section 44- 6 7A-23. The motion for judicial relief must be made to the district court, pursuant to 7 the “manner provided by law or rule of [the] court for making and hearing motions[,]” 8 and notice of the motion “must be served in the manner provided by law for the 9 service of a summons in a civil action.” Section 44-7A-6. In terms of jurisdiction, the 10 Act provides that “[a] court of this state having jurisdiction over the controversy and 11 the parties may enforce an agreement to arbitrate[,]” and “[a]n agreement to arbitrate 12 providing for arbitration in this state confers exclusive jurisdiction on the court to 13 enter judgment on an award under the . . . Act.” Section 44-7A-27. Upon the 14 prevailing arbitration party’s motion for an order confirming the award, the district 15 court must issue a confirming order unless the court or an arbitrator modifies or 16 corrects the award or if the court finds that certain conditions of the arbitration 17 proceeding requires that the award be vacated. See §§ 44-7A-21, -23, -24(a), -25(a). 18 The district court’s judgment, whether it is to confirm an award or otherwise, 19 is formalized by the entry of a judgment. Section 44-7A-26(a). “The judgment may [10] 1 be recorded, docketed[,] and enforced as any other judgment in a civil action.” Id. 2 The court “may allow reasonable costs of the motion and subsequent judicial 3 proceedings.” Section 44-7A-26(b). And, upon “application of a prevailing party to 4 a contested judicial proceeding[,]” including a motion to confirm an arbitration award, 5 “the court may add reasonable attorney[] fees and other reasonable expenses of 6 litigation incurred in a judicial proceeding” to its judgment. Section 44-7A-26(c). 7 The Record in This Case Supports Application of the Act 8 The record on appeal in this case shows that Mr. Schmidt was a member of the 9 Albuquerque Board of REALTORS, and, by his signature on his application for 10 membership to that organization, Mr. Schmidt “agree[d] to abide by the Code of 11 Ethics of the NATIONAL ASSOCIATION OF REALTORS including the obligation 12 to arbitrate any existing or future disputes with another Member in accordance with 13 the Board’s arbitration procedures[.]” Mr. Schmidt does not refute Pargin’s assertion 14 that the agreement to arbitrate was controlled by the Act. See § 44-7A-3(a). In fact, 15 Mr. Schmidt appears to concede the issue in his reply brief by stating that he does not 16 dispute that the Arbitration Panel conducted an arbitration hearing under the Act. 17 Thus, it seems clear that the agreement to arbitrate was controlled by the Act. See id. 18 (stating that an agreement to arbitrate that was made on or after July 1, 2001, is 19 governed by the Act). [11] 1 Additionally, by virtue of its substance and as reflected in its amended title, it 2 is apparent that the complaint, as amended, filed by Pargin in the district court, sought 3 to clarify the proceeding as one to confirm the Award. We note that in addition to its 4 statement that “the subject matter” of its complaint was the Award, and its specific 5 references to the Arbitration Panel’s ruling throughout its complaint, Pargin attached 6 a copy of the Award to its complaint. Additionally, based on the substance of the 7 district court’s final judgment, which referenced Pargin’s complaint “to approve the 8 July 15, 2009, Arbitration Award of [the Arbitration Panel],” we conclude that the 9 court’s judgment constituted a confirmation of the Award. Butler v. Deutsche Morgan 10 Grenfell, Inc., 2006-NMCA-084, ¶ 12 , 140 N.M. 111 , 140 P.3d 532 (“[S]ubstance 11 trumps form when interpreting court orders.”). Thus, adhering to substance over 12 form, we determine that Pargin’s amended complaint came within the provisions of 13 the Act as a proceeding to confirm the Award and that the district court’s judgment 14 constituted a confirmation of the Award. Cf. Bogle Farms, Inc. v. Baca, 1996-NMSC- 15 051, ¶ 34, 122 N.M. 422 , 925 P.2d 1184 (“Our legal history . . . favors substance over 16 form[.]”). 17 To the extent that Mr. Schmidt’s view of this case, as a lawsuit to collect a 18 commission under Section 61-29-16, rather than an action to confirm an arbitration 19 award pursuant to Section 44-7A-23, stems from Pargin having entitled its initial [12] 1 filing a “complaint” rather than a “motion,” we reject his assertion. We are not aware 2 of any statutory or rule-based mandate regarding the form of title for a motion to 3 confirm an arbitration award pursuant to the Act, and Mr. Schmidt does not provide 4 any such authority. See Rule 1-008.1(C) NMRA (“The title of a pleading . . . shall 5 have no legal effect in the action.”). Further, Mr. Schmidt appears to acknowledge, 6 in some sections of his briefing, that he understood Pargin’s complaint as seeking to 7 “enforce” the Award. Particularly, we note the following statement from Mr. 8 Schmidt’s brief in chief: “Although somewhat disjointed and totally mis-titled, the 9 body of [Pargin’s] very own [c]omplaint states emphatically that it is a complaint 10 being brought to enforce an [a]rbitration [a]ward.” Thus, we see no reason to believe 11 that Mr. Schmidt reasonably viewed Pargin’s complaint as anything but an action to 12 confirm the Award, particularly after Pargin amended the title of its complaint. 13 In sum, we conclude that this case, from the commencement of the hearing 14 before the Arbitration Panel and continuing through the district court, was governed 15 by the Act. As such, we review the parties’ arguments in conformity with the Act. 16 We reject Mr. Schmidt’s view that the proceedings were governed by the Real Estate 17 Brokers and Salesmen Act or by any law related thereto. Having thus concluded that 18 this case is controlled by the Act, we turn now to the merits of Mr. Schmidt’s 19 arguments. [13] 1 Standard of Review 2 The Act strictly limits judicial review of arbitration awards. K.R. Swerdfeger 3 Constr., Inc. v. Univ. of N.M. Bd. of Regents, 2006-NMCA-117, ¶ 13 , 140 N.M. 374 , [4] 142 P.3d 962 ; see also Durham v. Guest, 2009-NMSC-007, ¶ 34 , 145 N.M. 694 , 204 5 P.3d 19 (stating that “arbitration awards are subject to confirmation by the district 6 court and those awards are final, subject to a very limited scope of judicial review” 7 (citation omitted)). The district court must confirm an arbitration award, see § 44-7A- 8 23, unless a party appealing from the award shows that the award was obtained 9 through corruption, fraud, or other undue means; a party was prejudiced by arbitrator 10 corruption, misconduct, or partiality; the arbitrator exceeded his or her powers; and 11 the rights of a party were substantially prejudiced. See § 44-7A-24(a). It is not the 12 purview of the district court to review an arbitration award on the merits of the 13 controversy. See Durham, 2009-NMSC-007, ¶ 34 . In reviewing the district court’s 14 confirmation of an arbitration award, “this Court is restricted to evaluating whether 15 substantial evidence in the record supports the district court’s [judgment.]” K.R. 16 Swerdfeger Constr., 2006-NMCA-117, ¶ 14 (internal quotation marks and citation 17 omitted). “Substantial evidence is that evidence which is relevant and which a 18 reasonable mind could accept as adequate to support a conclusion.” Medina v. Found. 19 Reserve Ins. Co., 1997-NMSC-027, ¶ 12 , 123 N.M. 380 , 940 P.2d 1175 . [14] 1 Jurisdiction 2 Relying on Section 61-29-2(A)(4), case law interpreting that section, and 3 various provisions of the New Mexico Administrative Code applicable to the Real 4 Estate Brokers and Salesmen Act, Mr. Schmidt argues that the district court lacked 5 jurisdiction over this case because Pargin did not allege in its complaint that it was a 6 duly licensed qualifying broker or associate broker, and the district court did not enter 7 a finding to that effect. See, e.g., Bosque Farms Home Ctr., Inc. v. Tabet Lumber Co., [8] 107 N.M. 115, 116 , 753 P.2d 894, 895 (1988) (stating that “in order to satisfy the 9 requirements of Section 61-29-16 . . ., the party seeking relief must allege that he was 10 licensed [as a real estate broker] at the time the work or service was performed”); Star 11 Realty Co. v. Sellers, 73 N.M. 207, 209 , 387 P.2d 319, 320 (1963) (stating that “a 12 judgment for recovery of a real estate commission without a finding that [the] plaintiff 13 held either a broker’s or salesman’s license, when the cause of action arose, is 14 erroneous”). On that basis, Mr. Schmidt contends that “[t]he case should have been 15 dismissed long ago[,]” pursuant to Rule 1-012(H)(3) NMRA. See id. (“Whenever it 16 appears by suggestions of the parties or otherwise that the court lacks jurisdiction of 17 the subject matter, the court shall dismiss the action.”). 18 As we indicated earlier in this Opinion, we reject Mr. Schmidt’s view that 19 Pargin’s complaint constituted an action “to collect a real estate commission” pursuant [15] 1 to the Real Estate Broker’s and Salesmen Act. Thus, we need not consider whether 2 Pargin’s pleadings or the district court’s judgment conformed to the standards 3 applicable, generally, to lawsuits pertaining to real estate commissions. Rather, we 4 need only consider whether the district court properly exercised its jurisdiction 5 pursuant to the Act. 6 According to Pargin, the court properly exercised its jurisdiction in this matter 7 pursuant to Section 44-7A-27 of the Act. See id. (explaining that a court with 8 jurisdiction over the parties and the controversy may enforce an agreement to 9 arbitrate, and providing that an agreement to arbitrate in New Mexico confers 10 exclusive jurisdiction on the court to enter a judgment on an arbitration award). Mr. 11 Schmidt does not respond to Pargin’s contention that the district court had jurisdiction 12 pursuant to Section 44-7A-27, nor does he cite any on-point authority to support a 13 holding that the Act did not grant the district court jurisdiction over this matter. See 14 In re Adoption of Doe, 100 N.M. 764, 765 , 676 P.2d 1329, 1330 (1984) (noting that 15 where a party cites no authority to support an argument, we may assume no such 16 authority exists); Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31 , 126 17 N.M. 717 , 974 P.2d 1174 (concluding that the appellant had conceded an argument 18 that was raised in the appellee’s answer brief but not addressed in the appellant’s reply 19 brief). Accordingly, Mr. Schmidt has provided no basis for a conclusion that the court [16] 1 lacked jurisdiction over this matter, and we decline further consideration of this issue. 2 See Valdez v. Yates Petroleum Corp., 2007-NMCA-038, ¶ 24 , 141 N.M. 381 , 155 P.3d 3 786 (declining to consider an issue for which the appellant had failed to cite any on- 4 point authority). 5 Mr. Schmidt’s Claim That He Was Not a Proper Party in the Arbitration 6 Mr. Schmidt claims that the district court erred in enforcing the Award against 7 him because he was not a proper party. Citing the text of the Award, which was set 8 out in the background section of this Opinion, Mr. Schmidt claims that although the 9 “caption of the arbitration case has the name Schmidt in it[,] . . . [t]he final finding and 10 award, does not.” On that basis, he concludes that “[t]here was no [a]rbitration 11 [a]ward made against Defendant Schmidt[.]” He further states that the district court 12 “entered judgment against, almost, a stranger” because “[a]lthough Schmidt did in fact 13 participate in the entire [a]rbitration case, he was ultimately totally exonerated.” 14 Beyond his citation to the body of the Award, Mr. Schmidt does not provide 15 any record support for his claim that “he was ultimately totally exonerated” in the 16 arbitration proceedings. See Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 8 , 150 17 N.M. 769 , 266 P.3d 638 (“[W]here a party fails to cite any portion of the record to 18 support its factual allegations, we need not consider its argument on appeal.”), cert. 19 granted, 2011-NMCERT-010 , 289 P.3d 1254 . His argument in that regard appears [17] 1 to rest entirely upon the narrow view that because Desert Sage and not Mr. Schmidt 2 appeared within the body of the Award, the Award was exclusively against Desert 3 Sage. The district court was not persuaded by this argument, nor are we. As Pargin 4 indicates, and as demonstrated in the record, Mr. Schmidt was named as a respondent 5 on every arbitration-related document, including the caption of the Award, and the 6 decision by the Review Tribunal that affirmed the Award. That the body of the 7 Award instructed Desert Sage to pay Pargin the amount of the Award does not provide 8 persuasive support for a conclusion that Mr. Schmidt was in any regard “exonerated” 9 in the arbitration proceedings because he was not a proper party. 10 Further, the record does not support Mr. Schmidt’s claim that there was “an 11 entire absence of evidence connecting [him] with the alleged cause of action[.]” 12 Evidence in the record shows that the commission dispute, from its inception, 13 involved Mr. Schmidt. Ms. Harris, the qualifying broker with Pargin, stated in an 14 affidavit that she filed a demand for arbitration with the Albuquerque Board of 15 Realtors “due to a commission dispute with Mr. Schmidt and Desert Sage[.]” 16 (Emphasis added.) She also explained that, according to the Albuquerque 17 Association’s regulations and according to the National Association of Realtors 18 Arbitration Manual, the demand for arbitration was to be made in the name of the 19 realty company. Therefore, it appears that Mr. Schmidt was, at all times, a party to [18] 1 the dispute, and that Desert Sage was included as a respondent pursuant to the 2 applicable regulations. Mr. Schmidt provides no record citations to support a contrary 3 inference. Thus, on the record before us, we conclude that substantial evidence 4 supported the district court’s rejection of Mr. Schmidt’s contention that he was not a 5 proper party. 6 Liability 7 Mr. Schmidt contends that he is neither individually nor vicariously liable for 8 the Award, which, he maintains, was made exclusively against Desert Sage. Citing 9 generally to the New Mexico Administrative Code, Mr. Schmidt maintains that a 10 qualifying broker is not necessarily liable for an act or omission of the entity he 11 represents. And relying on Stinson v. Berry, 1997-NMCA-076 , 123 N.M. 482 , 943 12 P.2d 129 , Mr. Schmidt argues that he is not personally liable for the faults of the 13 corporation—Desert Sage. Further, he contends that there was no factual or legal 14 support for the district court’s finding that Mr. Schmidt was liable for the Award. 15 We turn first to Mr. Schmidt’s contention that there was no factual support for 16 the district court’s finding that he was liable for the Award. The record reflects that 17 there existed substantial factual support for the district court’s decision in regard to 18 Mr. Schmidt’s liability. As noted earlier, Mr. Schmidt was named, individually, as 19 a party to the underlying commission dispute. Additionally, the record reflects that [19] 1 Mr. Schmidt, appearing pro se, individually participated in the proceedings before the 2 Arbitration Panel where he was introduced by the chairperson of the Arbitration Panel 3 as “the [r]espondent.” And further, Mr. Schmidt was listed as a respondent both on 4 the Award issued by the Arbitration Panel and on the decision of the Review Tribunal. 5 On this record, we see no basis upon which to hold that the court erred in determining 6 that Mr. Schmidt, personally, aside from his capacity as the qualifying broker of 7 Desert Sage, bore individual liability for the Award. See Medina, 1997-NMSC-027 , 8 ¶ 12 (stating that “[s]ubstantial evidence is that evidence which . . . a reasonable mind 9 could accept as adequate to support a conclusion”). 10 We turn now to Mr. Schmidt’s argument that he was not personally liable for 11 the faults of the corporation. Mr. Schmidt’s argument misses the mark. The record 12 does not support his view that the district court saddled Mr. Schmidt with personal 13 liability for the acts or omissions of Desert Sage. To the contrary, evidentiary 14 documents in the record, as set forth in the previous paragraph, support the inference 15 that the Award was rendered not only against Desert Sage, but also against Mr. 16 Schmidt as an individual respondent and party to the underlying commission dispute 17 and as the qualifying broker of Desert Sage. 18 Mr. Schmidt’s citation to Stinson is unpersuasive. In Stinson, this Court 19 determined that the president and manager of a corporation, acting within the scope [20] 1 of his corporate duties, could be held personally liable in tort for an injury to a third 2 party. 1997-NMCA-076, ¶¶ 2, 16, 20 . The Stinson Court recognized the general 3 proposition that “shareholders, directors[,] and officers are not personally liable for 4 the acts and obligations of the corporation” and “[c]orporate directors cannot be held 5 vicariously liable for the corporation’s torts merely by virtue of the office they hold.” 6 Id. ¶ 17. But the Court also recognized that “if an officer or director directs or 7 actively participates in the commission of the tortious act of the corporation, he will 8 be liable, along with the corporation.” Id. “Thus, if the officer or director directed, 9 controlled, approved[,] or ratified the activity that led to the injury, he or she can be 10 held personally liable.” Id. 11 We note that Stinson involved neither a real estate enterprise nor an arbitration 12 award. Nevertheless, Mr. Schmidt relies on Stinson to support his theory that 13 although, in Mr. Schmidt’s words, the qualifying broker in a real estate office is 14 “merely a hired-hand or sometimes an employee, just as is a corporate [a]ttorney” and 15 even if the qualifying broker owned the business entity, “they would . . . not be 16 personally liable for the faults of the corporation.” Mr. Schmidt’s characterization of 17 a qualifying broker and his interpretation of Stinson are unsupportable. 18 Although Mr. Schmidt equates his position as qualifying broker for Desert Sage 19 with that of a corporate attorney, a hired-hand, or an employee, he provides no [21] 1 authority to support his assertion. Moreover, his characterization of the role of a 2 qualifying broker is contravened by the Administrative Code, which provides that a 3 real estate brokerage cannot engage in real estate business except under the license of 4 a qualifying broker. 16.61.6.8 NMAC (11/30/2001) (amended 1/1/2012). Further, to 5 the extent that Mr. Schmidt would have us rely upon Stinson, we note that because 6 Mr. Schmidt was involved in the underlying transaction and the commission dispute, 7 he “actively participate[d] in the [wrongful] act of the corporation” and as such, he 8 may be held personally liable for that act. 1997-NMCA-076, ¶ 17 . Under these 9 circumstances, we see no basis on which to hold that the district court erred in 10 confirming the Award against Mr. Schmidt, individually. 11 In sum, Mr. Schmidt provides no applicable authority, record support, or 12 persuasive argument to show that the district court erred in affirming the Award 13 against him individually and as the qualifying broker for Desert Sage. On the record 14 before us, we conclude that substantial evidence supported the district court’s 15 confirmation of the Award against Mr. Schmidt individually and as qualifying broker 16 of Desert Sage. Accordingly, this issue presents no basis for reversing the judgment 17 of the district court. 18 Mr. Schmidt’s Argument Regarding Service of Process Upon Desert Sage 19 Mr. Schmidt contends that the district court erred in assuming in personam [22] 1 jurisdiction over, and awarding judgment against, a corporate entity—Desert Sage 2 “that was not served with process, made no appearance, and was not represented either 3 at the arbitration proceeding below or in the [d]istrict [c]ourt.” In an apparent 4 recognition of the applicability of the Act to this case, Mr. Schmidt cites to Section 5 44-7A-6(b) for the proposition that, in Mr. Schmidt’s words, “[t]he entity must be 6 served.” See id. (stating that “notice of an initial motion to the court under the . . . Act 7 must be served in the manner provided by law for the service of a summons in a civil 8 action”). In Mr. Schmidt’s view, because Desert Sage was not served with process, 9 the district court lacked jurisdiction to enter a judgment against it. Because Desert 10 Sage is not a party to this appeal, we decline to consider Mr. Schmidt’s argument on 11 its behalf. Cf. Wright v. First Nat’l Bank in Albuquerque, 1997-NMSC-026, ¶ 1 , 123 12 N.M. 417 , 941 P.2d 498 (declining to consider an argument pertaining to an entity that 13 was not a party to the appeal). 14 The District Court Was Not Required to Make Findings and Conclusions 15 Relying on Rule 1-052(A) NMRA and case law applicable to that rule, Mr. 16 Schmidt contends that the district court erred in failing to enter findings of fact and 17 conclusions of law. Rule 1-052(A) and case law pertinent to the application of that 18 rule is of no benefit to Mr. Schmidt. Rule 1-052(A) applies to non-jury trials in the 19 district court; and it provides, in pertinent part, that “[i]n a case tried by the court [23] 1 without a jury, or by the court with an advisory jury, the court shall enter findings of 2 fact and conclusions of law[.]” 3 The matter of whether the real estate commission was owed, and to whom, and 4 by whom it was owed, was resolved by the Arbitration Panel, and those questions 5 were not at issue before the district court. See Durham, 2009-NMSC-007 , ¶ 34 6 (stating that “the . . . Act does not allow a district court to review an arbitration award 7 on the merits” and explaining that “collateral estoppel is applicable to issues decided 8 in arbitration proceedings”). Mr. Schmidt does not demonstrate how Rule 1-052(A) 9 has any bearing upon this case, in which there was no trial, and where the merits of 10 the underlying dispute were resolved, not by the district court, but by the Arbitration 11 Panel. 12 Further, Mr. Schmidt does not respond in his reply brief to Pargin’s contention 13 that the Act does not require a district court to enter findings of fact and conclusions 14 of law. See § 44-7A-23 (stating that a party may make a motion to the court for an 15 order confirming an arbitration award and that the district court shall issue an order 16 confirming the arbitration award unless it is modified, corrected, or vacated pursuant 17 to statute). Mr. Schmidt’s failure to respond to Pargin’s answer brief contention, 18 combined with his failure to cite any on-point or applicable authority, leads us to 19 reject his argument without further consideration of the issue. See Valdez, 2007- [24] 1 NMCA-038, ¶ 24 (declining to consider an issue for which the appellant had failed to 2 cite any on-point authority); Bingham, 1999-NMCA-029, ¶ 31 (concluding that the 3 appellant had conceded an argument that was raised in the appellee’s answer brief but 4 not addressed in the appellant’s reply brief). 5 Attorney Fees 6 Mr. Schmidt’s final argument is that the district court erred in awarding Pargin 7 attorney fees in an amount “four times the judgment amount.” Mr. Schmidt argues 8 that the district court’s award of attorney fees in the amount of $11,563.36 was 9 unreasonable, and in Mr. Schmidt’s view, “[a]ny [a]ttorney[] fees awarded by the 10 [d]istrict [c]ourt . . . are absurd.” Additionally, Mr. Schmidt disclaims any 11 responsibility for having “generated” litigation in this case. 12 As an initial matter, we note that Mr. Schmidt’s argument misrepresents the 13 amount of attorney fees. The record reflects that the sum of attorney fees awarded in 14 this case was $8,143.36—not, as Mr. Schmidt represents, $11,563.36—which sum 15 reflects the total judgment and includes the Award. Thus, rather than “four times” the 16 amount of the judgment, the attorney fees amount to less than three times the amount 17 of the Award. 18 Pargin contends that the district court’s award of attorney fees was supported 19 by the record. Specifically, Pargin cites to Mr. Schmidt’s six motions filed in district [25] 1 court, all of which were summarily denied by the district court, but to all of which 2 Pargin was required to respond. Further, Pargin contends that it “had to compile and 3 draft supporting [a]ffidavits and National Association of Realtors Rules and 4 Regulations in response to each of the . . . motions[.]” And finally, Pargin points to 5 Section 44-7A-26(b), which permits the district court to allow “reasonable costs of the 6 motion [to confirm an arbitration award] and subsequent judicial proceedings.” See 7 also § 44-7A-26(c) (providing that the district court may add reasonable attorney fees 8 incurred in a judicial proceeding to confirm an arbitration award). 9 Mr. Schmidt fails to cite any record support for his contention that the attorney 10 fees were unreasonable. See Romero, 2011-NMCA-110, ¶ 8 (“[W]here a party fails 11 to cite any portion of the record to support its factual allegations, we need not consider 12 its argument on appeal.”). On this record, we see no basis upon which to conclude 13 that the district court abused its discretion by its award of attorney fees. See Rio 14 Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 10 , 287 P.3d 15 318 (stating that we review an award of attorney fees for an abuse of discretion). 16 Accordingly, we affirm the district court’s award of attorney fees. 17 CONCLUSION 18 We affirm the district court’s judgment. 19 IT IS SO ORDERED. [26] 1 __________________________________ 2 JONATHAN B. SUTIN, Judge 3 WE CONCUR: 4 ___________________________________ 5 RODERICK T. KENNEDY, Chief Judge 6 ___________________________________ 7 MICHAEL E. VIGIL, Judge