Frieson v. North Carolina Real Estate Licensing Board

PHILLIPS, Judge. In appealing from the judgment of the Superior Court, which affirmed the Board’s revocation of his license as a real estate [667] agent, petitioner made but three assignments of error. The first two assignments, though couched in constitutional terms, amount simply to the claim that the Board’s findings of fact and conclusions of law do not support the order of revocation. If, of course, the Board’s revocation order is not supported by appropriate conclusions of law, or if the conclusions of law are not supported by appropriate findings of fact, the order cannot stand; on the other hand, if the order is supported by proper conclusions of law that in turn are supported by appropriate findings of fact the order must be upheld. The sufficiency of the evidence to support the Board’s findings of fact is not before us, since no exceptions were made to the findings. Cox v. Real Estate Licensing Board, 47 N.C. App. 135, 266 S.E. 2d 851, disc. rev. denied, 301 N.C. 87, 273 S.E. 2d 296 (1980). The Board’s revocation order is well supported. It rests on four conclusions of law that petitioner violated the North Carolina Real Estate Licensing Law in as many respects, each of which is a valid basis under the express terms of G.S. 93A-6(a) for revoking an agent’s license to sell real estate. One of the Board’s conclusions is that petitioner violated G.S. 93A-6(a)(7) “by failing to account to Mrs. Winchester for her payments to him.” This statute makes it a license-revocable offense for an agent to fail “within a reasonable time, to account for or to remit any moneys coming into his possession which belong to others.” This conclusion is supported by findings of fact that are both appropriate and to the point. One finding is that because petitioner failed to forward Mrs. Winchester’s mortgage payments to the mortgagees foreclosure proceedings were begun, which he was able to terminate only after delivering the payments and paying a penalty. Another finding states that petitioner “failed and refused to account to Mrs. Winchester for the funds paid to him on her house purchase.” Better support for a valid conclusion of law would be hard to find. Under the circumstances the other three conclusions, each of which is also well supported by the Board’s detailed findings of fact, need not be discussed. Petitioner’s remaining assignment of error, likewise superfluously couched in constitutional terms, is that the Board’s refusal to continue the evidentiary hearing violated his due process rights. But why petitioner needed a continuance, much less was legally entitled to one, the record does not show. So far as the record reveals neither petitioner nor his attorney ever contacted [668] or communicated with the Board in any manner about the hearing; and the telephone calls made by their secretaries to the Board’s counsel stated no justifiable reason for continuing a long-scheduled administrative or judicial hearing. The record does show, however, that petitioner received advance written notice of the hearing and that neither he nor his counsel appeared. G.S. 150A-25 states that “[i]f a party fails to appear in a contested case after proper service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party.” This provision is permissive, of course, not mandatory, and it authorized the Board to continue the hearing or not as it deemed meet in the sound exercise of its discretion. Davis v. N.C. Dept. of Transportation, 39 N.C. App. 190, 250 S.E. 2d 64 (1978), disc. rev. denied, 296 N.C. 735, 254 S.E. 2d 177 (1979). No abuse of discretion being apparent from the record, this assignment must be and is overruled. In re Judicial Review by Republican Candidates, 45 N.C. App. 556, 264 S.E. 2d 338, disc, rev. denied, 299 N.C. 736, 267 S.E. 2d 672 (1980); Elmore v. Lanier, Commissioner of Insurance, 270 N.C. 674, 155 S.E. 2d 114 (1967). The order appealed from is affirmed. Affirmed. Judges WHICHARD and JOHNSON concur.