## Facts

- Johnye Mary Gholson owned real property and, in 1984 at age eighty-four, called Pat Eichenberg, a real estate broker and owner of Heights Realty, Ltd. (Heights), to obtain brokerage services to sell the property.
- On September 26, 1984, Gholson signed an exclusive one-year listing contract with Heights listing the property for $250,000 and requiring a $75,000 cash down payment; the listing contained no other financing or sale terms.
- On October 10, 1984, Gholson changed her position on the down payment and signed an addendum increasing the cash down payment requirement to $100,000.
- In November 1984, a prospective buyer made an offer to purchase the property for $255,000, but Gholson did not accept the offer.
- Heights sued Gholson for a commission, alleging it earned a commission by producing a ready, willing, and able buyer.
- During the lawsuit, Gholson was adjudicated incompetent, and Phillips, her son-in-law, was appointed conservator of her estate and substituted as defendant.
- At a bench trial, the court received testimony from psychiatrist witnesses, Gholson’s relatives, and Gholson herself bearing on her mental condition at the time she signed the listing contract and addendum.
- The trial court found Gholson lacked capacity to enter the listing contract when she executed it, held the contract invalid, and entered judgment for the conservator.
- Heights appealed, arguing the evidence did not meet the clear-and-convincing standard required to overcome the presumption of competency and that the findings were not supported by substantial evidence.

## Issues

1. Whether the trial court’s finding that Gholson lacked contractual capacity when she signed the listing contract and addendum was supported by substantial evidence satisfying the clear-and-convincing burden of proof.
2. Whether, in evaluating capacity at the time of contracting, the factfinder may consider expert psychiatric testimony, lay testimony, and evidence of mental condition before and after the execution of the contract insofar as it bears on capacity at the relevant time.

## Decision

- The Supreme Court of New Mexico affirmed the judgment for Phillips, the conservator.
- The court held that the presumption of competency was rebutted by clear and convincing evidence and that substantial evidence supported the trial court’s finding of incapacity at the time of contracting.
- The court declined to reweigh conflicting evidence and deferred to the trial court’s credibility determinations and resolution of testimony conflicts.

## Legal Principles

- A person has contractual capacity when she is able to understand the nature and consequences of the transaction at the time the contract is made.
- Contractual competency is presumed; a party seeking to avoid a contract based on incapacity must overcome that presumption with clear and convincing evidence.
- In deciding capacity, the factfinder may consider both expert and lay testimony, including observations by relatives and the contracting party’s own testimony.
- Evidence of mental condition before and after the time of contracting may be considered to the extent it tends to show the person’s condition when the contract was executed.
- On appellate review, a trial court’s findings will be upheld if supported by substantial evidence; an appellate court does not retry the case or reassess witness credibility.

## Conclusion

Heights could not recover a commission because the trial court, after hearing psychiatric and lay testimony about Gholson’s mental state, found she lacked the ability to understand the nature and consequences of the exclusive listing agreement when she signed it; the Supreme Court affirmed because that finding was supported by substantial evidence meeting the clear-and-convincing standard required to rebut the presumption of competency.


Heights Realty, Ltd. v. Phillips, 749 P.2d 77, 106 N.M. 692 (1988)