James G. and Elaine A. Wanchek - Page 10




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          architect.  Neither the preconstruction agreement nor the                   
          contract contains such a representation.  Moreover, even assuming           
          arguendo that Mr. Green at one time misrepresented Mr. Cabber as            
          an architect, we would have no basis to conclude that such a                
          misrepresentation was coupled with an intent to cheat or deceive            
          petitioners.9                                                               
               Nor does the fact that specifications in the construction              
          plans might not have been met shed light on Mr. Green’s intent;             
          it is certainly not determinative evidence of fraud on Mr.                  
          Green’s part.  At most, Mr. Green’s failure to carry out the                
          construction plans constitutes a breach of contract or negligence           
          on his part.  Petitioners’ position ignores the fact that, in               
          addition to Mr. Green, there were at least nine other parties               
          involved in the design and construction of petitioners’ house.10            
          Because so many parties were involved in designing and building             
          petitioners’ house, any fraud perpetrated by Mr. Green would                
          likely have involved some or all of those other parties.  If Mr.            
          Green had intended to deceive petitioners through a scheme of               
          such proportions, we would expect that petitioners would present            



               9 In their reply brief, petitioners assert that Mr. Cabber             
          was providing architectural services in violation of the New                
          Mexico Architectural Act.  In our view, the veracity of that                
          allegation has no bearing on whether Mr. Green defrauded                    
          petitioners.                                                                
               10 Petitioners’ civil suit was against Mr. Green and those             
          nine other parties.                                                         





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