James G. and Elaine A. Wanchek - Page 5




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          Petitioners go on to point out that (1) “landfill was added to              
          the sides of the house to hide the fact that foundations were               
          improperly set”; (2) “the location of the sewer” and “the                   
          thickness of the stucco” did not conform to the housing plan,               
          without notice to petitioners; and (3) Mr. Green misrepresented             
          that the land was “engineered,” when “there was no engineering of           
          the soil besides grading.”  Petitioners assert that Mr. Green               
          misrepresented the quality of his houses and his role in their              
          construction in promotional materials and misrepresented that Mr.           
          Cabber was an architect.  Petitioners further assert that “Mr.              
          Green had no intention to cure or even acknowledge any defects              
          and he made himself absent from the state by moving to Las                  
          Vegas.”                                                                     
               Respondent contends that petitioners have failed to prove              
          that Mr. Green’s conduct constituted a theft under New Mexico               
          law.  Respondent notes that Mr. Green obtained the requisite                
          building permit, hired subcontractors whom he had worked with               
          before, was present at the construction site on a daily basis,              
          oversaw the subcontractors’ work, and, once construction of                 
          petitioners’ house was completed, received a certificate of                 
          occupancy from the county.  With respect to Mr. Cabber’s                    
          credentials, respondent notes that neither the preconstruction              
          agreement nor the contract provided that an architect would                 
          design petitioners’ house and that petitioners never asked Mr.              







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