CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

173 D.P.R 363, 2008 WL 864702 (P.R.), 

2008 TSPR 52

VIVIAN AMIEIRO GONZALEZ ET AL, 

claimants and petitioners

v.

PINNACLE REAL ESTATE GROUP, psc, 

d/b/a HOME TEAM, MARIA DEL C. 

ARREDONDO PEREZ and MARIA ROSA 

ARREDONDO PEREZ, Defendants, 

appellees.

In the Puerto Rico Supreme Court

Number: CC-2006-774

Synopsis

CERTIORARI PETITION to review a 

JUDGMENT of Dora T. Penagaricano 

Soler, Carlos Rivera Martinez and Troadio 

Gonzalez Vargas, Judges of the Court of 

Appeals, which decided that the Department 

of Consumer Affairs did not have jurisdiction 

over the sellers pursuant to the Law to

Regulate the Real Estate Business, nor 

pursuant to the Residential Lead-Based Paint 

Hazard Act. Judgment is entered and the 

judgment issued by the Court of Appeals is 

confirmed.

Manuel Izquierdo Encarnación, from 

Izquierdo, Pagan & Pabón, attorney for 

petitioner, Pedro A. Barceló Lugo, attorney 

of María del C. Arredondo Pérez and María 

Rosa Arredondo Pérez, defendants and 

appellees. 

PRESIDENT JUDGE MR. HERNANDEZ 

DENTON issued the opinion of the Court.

On this occasion we have to decide if the Law 

to Regulate the Real Estate Business and the 

Profession of Real Estate Broker, Seller or 

Companies in Puerto Rico grants the 

Department of Consumer Affairs jurisdiction 

over the sellers of a property. As we 

understand that such statute expressly 

excludes from its application the owners of 

real estate properties located in or out of 

Puerto Rico, when they do not habitually

work on the real estate business, we confirm 

the appealed decision. 

I.

The facts of this case are not in controversy. 

On April 10, 2002, Mrs. Maria del Carmen 

Arredondo-Perez and Mrs. Maria Rosa 

Arredondo-Perez (the Arredondo-Perez

ladies) retained the services of the real estate 

brokers Pinnacle Real Estate Group 

(Pinnacle) for the sale of a property that 

belonged to them, located in Miramar. Six 

months later, the Arredondo-Perez ladies

executed a purchase and sale contract with 

petitioners Mrs. Vivian Amieiro Gonzalez 

and her husband, Mr. Natalio Izquierdo 

Encarnacion (the Izquierdo-Amieiro couple)

for the agreed price of $550,000.

In view that the Izquierdo-Amieiro couple

wanted to demolish the structure and build a 

new structure, they went to the Regulations

and Permits Administration (A.R.Pe. for its 

Spanish acronym) to obtain the 

corresponding permits. As part of the 

process of demolishing the structure, A.R.Pe. 

asked the Izquierdo-Amieiro couple for a 

study of toxic materials. For this, *368 the 

petitioners hired Architect Cesar A. Santos, 

who after performing such study determined 

that the structure was contaminated with 

asbestos and lead-based paint. In view of this, 

the Izquierdo-Amieiro couple paid $5,000 for 

the referenced study and $112,000 for the 

removal of the toxic materials to the company

SAQ Environmental Engineers, Inc.

Case:17-03283-LTS Doc#:3858-3 Filed:09/05/18 Entered:09/05/18 09:57:20 Desc:

Exhibit C Page 1 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

In view of these facts, on October 10, 2003, 

the Izquierdo Amieiro couple filed a 

complaint with the Department of Consumer 

Affairs (D.A.Co. for its Spanish acronym) 

against Pinnacle, pursuant to the Law to 

Regulate the Real Estate Business and the 

Profession of Real Estate Broker, Seller or

Companies in Puerto Rico (Law to Regulate 

the Real Estate Business), Law No. 10 of 

April 26, 1994 (20 L.P.R.A. sec. 3025 et seq.) 

Essentially, the Izquierdo-Amieiro couple

argued that prior to the sale, Pinnacle did not 

inform them of the possible existence of toxic 

materials in the property, preventing them to 

forming an informed decision. Therefore, the 

Izquierdo-Amieiro couple demanded 

Pinnacle to pay the amount of $117,000 to 

recover the expenses incurred in the study 

and removal of toxic materials. 

Timely, Pinnacle appeared before D.A.Co. 

and asked that the sellers the ArredondoPerez ladies be included as indispensable 

parties. In view of this, D.A.Co. ordered the 

Izquierdo-Amieiro couple to amend the 

complaint to include the sellers. In 

compliance with that order, the petitioners 

amended the complaint and notified the 

Arredondo-Perez ladies through fax. 

Therefore, the Arredondo-Perez ladies 

appeared before D.A.Co. and stated that the 

agency had no jurisdiction over them 

pursuant to the Law to Regulate the Real 

Estate Business, as said law excludes from its 

application persons that do not habitually 

usually work selling real estate. *369

After the administrative hearing, D.A.Co. 

concluded that the Arredondo-Perez ladies

and Pinnacle were jointly and/or severally 

liable and ordered them to pay $117,000 to 

the Izquierdo-Amieiro couple for the 

expenses incurred in the study and the

removal of the contaminants. It based its 

decision in that Art. 6(d) of D.A.Co.’s 

Organic Law, 3 L.P.R.A. sec. 341 e(d) grants 

it the faculty of vindicating the rights of the 

consumers in all laws in effect, it allows the 

adjudication of controversies pursuant to the 

Residential Lead-Based Paint Hazard Act, 42 

U.S.C.A. sec. 4851 et seq. The agency 

reasoned also, that such federal statute 

demands that prior to the purchase and sale,

the seller and the real estate broker divulge to 

the buyer their knowledge about the 

existence of lead-based paint in structures 

built prior to 1978.

Not in agreement with the Order of D.A.Co.

all the parties filed their respective motions 

for reconsideration. It should be noted that in 

their motion for reconsideration, the 

Arredondo-Perez ladies raised for the first 

time the lack of personal jurisdiction defense. 

They alleged that they are not residents of the 

Commonwealth of Puerto Rico and that 

D.A.Co. acted ultra vires when assuming the 

jurisdiction over their persons.

The agency evaluated the motions for 

reconsideration filed and after extending the 

term to consider them, it modified the order 

issued so that Pinnacle and the ArredondoPerez ladies pay the amount jointly but on a 

pro rata basis. Specifically, D.A.Co. 

determined that Pinnacle would only pay for 

a percent equal to the one it received as 

commission for the services rendered while 

the Arredondo-Perez ladies would assume 

the payment of the remaining amount. 

Regarding the lack of personal jurisdiction 

alleged by *370 the Arredondo-Perez ladies, 

D.A.Co. dismissed it for deeming there were 

minimum contacts. Not satisfied, the 

Arredondo-Perez ladies appealed with the 

Court of Appeals and alleged that the agency 

erred in adjudicating the complaint pursuant 

to the Law to Regulate the Real Estate 

Case:17-03283-LTS Doc#:3858-3 Filed:09/05/18 Entered:09/05/18 09:57:20 Desc:

Exhibit C Page 2 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

Business as they believed such statute was 

not applicable to them, because they are not 

real estate sellers. Also, they questioned 

D.A.Co.’s faculty to apply and interpret the 

Residential Lead-Based Paint Hazard Act. 

Lastly, The Arredondo-Perez ladies again 

argued that D.A.Co. could not assume 

personal jurisdiction over them, as they are 

residents of the state of Florida. 

After various procedures, the appellate 

forum, reversed D.A.Co.’s decision and 

concluded that the agency did not have 

jurisdiction over the Arredondo-Perez ladies

as the Law to Regulate the Real Estate 

Business excludes from its application the

sellers that do not habitually work selling real 

estate. It also deemed that D.A.Co. exceeded 

its discretion when assuming jurisdiction 

over the Arredondo-Perez ladies as there was 

no consumer-service-provider relationship

between them, as defined in the organic law 

of the agency. Lastly, the appellate court 

added that D.A.Co. is not a forum of general 

jurisdiction and cannot assume jurisdiction 

over the Arredondo-Perez ladies pursuant to 

the Residential Lead-Based Paint Hazard 

Act.

On the other hand, the appellate forum, 

concluded that, pursuant to the Law to 

Regulate the Real Estate Business, D.A.Co. 

can decide the complaint filed against 

Pinnacle and apply the mentioned federal 

statute. Also, it stated that the IzquierdoAmieiro couple could file an action against 

the Arredondo-Perez ladies in the federal 

*371 judicial court, in the Court of First 

Instance or in the federal agencies 

Environmental Protection Agency and the 

Department of Housing and Urban 

Development.

Not satisfied with the decision, the IzquierdoAmieiro couple comes before us through a 

writ of certiorari and argues that the 

appellate forum erred when deciding that 

D.A.Co. did not have jurisdiction over the 

sellers pursuant to the Law to Regulate the 

Real Estate Business nor pursuant to 

Residential Lead-Based Paint Hazard Act. 

Having examined the writ filed, we agreed to 

issue it. We gave the Arredondo-Perez ladies

and Pinnacle a term to file their briefs, but the 

latter did not appear. With the benefit of the 

appearance of the Izquierdo-Amieiro couple

and the Arredondo-Perez ladies we now 

decide.

II.

[1] A. It is known that in our judicial system, 

the law is the means or source that establishes 

the limits of power and the faculties of the 

administrative agencies. See Caribe Comms, 

Inc. v. PRT Co., 157 D.P.R. 203, 211 (2002). 

The organic law is the legal mechanism that 

delegates to the agency the necessary powers 

to act pursuant to the legislative purpose. Id. 

Pursuant to this, an administrative agency can 

only carry out the duties that have been given 

to it by law and those that arise from its main 

activity or endeavor. Id, page 213. However, 

if the action of the administrative agency 

exceeds the powers delegated by the 

Legislative Assembly, it shall be considered 

ultra vires, and therefore, null.

In agreement with the foregoing, we have 

stated that *372

...an administrative agency cannot assume 

jurisdiction over any situation that is not

authorized by law, that is, nor the need, nor

can the use, nor the convenience substitute 

the statute as to source of power of an 

administrative agency. That is why any doubt 

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Exhibit C Page 3 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

as to the existence of such power must be 

decided against its exercise. (Emphasis in 

original) Raimundi v. Productora, 162 

D.P.R. 215, 225 (2004).

The controversy before use requires, 

precisely, to analyze the scope and the 

extension of the power legislatively granted 

to D.A.Co., to determine its authority over 

the Arredondo-Perez ladies. For that, it is 

necessary to review several provisions of its 

organic law. 

[2] B. The Department of Consumer Affairs 

was created with the main objective of 

“vindicating and implementing the rights of 

the consumer”. 3 L.P.R.A. sec. 341b. In 

accordance with the foregoing, the organic

law of D.A.Co. conferred to its Secretary the 

faculty to “[a]ddress, investigate and solve 

the complaints and claims filed by the 

consumers of goods and services acquired or 

received in the private sector of the 

economy.” 3 L.P.R.A. sec. 341e(c). In order 

to efficiently vindicate the rights of the 

consumers, D.A.Co. possesses “an 

administrative adjudication structure with 

full and ample powers to adjudicate the 

claims in its consideration and grant the 

pertinent remedies pursuant to the law.” 3 

L.P.R.A. sec. 341e(d).

[3] Now, to efficiently adjudicate the rights 

of consumers, it is necessary that the 

administrative procedure be flexible, agile, 

fast and free of procedural obstacles of the 

courts of justice. See Martinez v. Tribunal 

Superior, 83 D.P.R. 717, 720 (1961). In 

accordance with this norm, we have stated 

that

[t]he inclusion of a third party in the 

administrative procedure without the 

claimant or the agency deeming it necessary 

or convenient, unnecessarily complicates and 

delays the procedure, *373 in contravention 

to the adjudicative philosophy that informs 

the administrative procedures....Of course, 

the inclusion of a third party would be 

mandatory if his/her exclusion would deprive 

him/her of his/her day in court. Perez Rios v. 

Hull Dobbs, 107 D.P.R. 834, 841 (1978).

Pursuant to the foregoing, there is no doubt 

that the inclusion of a third party in the 

administrative procedure must be carefully 

evaluated to avoid the delay being

detrimental to the consumer and contravenes 

the flexibility that characterizes those 

proceedings. The responsibility that a third 

party that wants to be included may have as 

to the defendant or claimant can be decided 

through ordinary litigation. See Perez Rios v. 

Hull Dobbs, supra. This way, the delay in the 

administrative proceedings is avoided and the 

consumer is guaranteed a quick and simple 

process, addressed towards the prompt 

solution of the complaint filed with D.A.Co.

[4] For the analysis of the controversy before 

us, it is necessary to emphasize that 

D.A.Co.’s administrative framework only 

comprises the cause of action filed by the 

consumers. Despite that D.A.Co.’s organic 

law keeps silent about who is a consumer, the 

Regulation for Adjudicative Proceedings in 

D.A.Co. defines it as “[e]very natural person 

that acquires or uses products or services as 

a final recipient. It includes every other 

person, association or entity that by 

designation of law has the ability to file its 

claim in the Department. (Emphasis 

provided). Rule 4(d) of Regulation No. 6219, 

Department of Consumer Affairs, November 

18, 2000, page I. Also, the cited provision 

excludes from the definition of consumer any 

person or entity that acquires goods or 

services with the objective of profiting in a 

subsequent resale. Id.

Case:17-03283-LTS Doc#:3858-3 Filed:09/05/18 Entered:09/05/18 09:57:20 Desc:

Exhibit C Page 4 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

From the foregoing it is evident that the 

jurisdiction of D.A.Co. depends, essentially,

on the claim of a consumer against a person 

that provides *374 products or services. In 

agreement with it, we have decided that 

D.A.Co. lacks jurisdiction to address a 

complaint filed by a party that cannot be 

described as a consumer. Martinez v. Rosado, 

165 D.P.R. 582 (2005). Also, from the 

foregoing it is evident that the adequate 

adjudication of the complaints filed before 

D.A.Co. supposes a reasonable limitation to 

the inclusion of third persons that are outside 

the procedure, as that may distort the 

legislative process of giving the consumers a 

quick, flexible and efficient forum.

[5] C. Now, the Legislative Assembly has 

given D.A.Co. the authority to regulate and 

address specific matters in which, of course,

there are consumers involved. To that effect 

the Legislative Assembly approved the Law 

to Regulate the Real Estate Business and the 

Profession of Real Estate Broker, Seller or 

Companies, through which it grouped all the 

legal provisions related to the real estate 

business and provided a new and stricter

regulatory body to benefit the consumers, 

sellers and real estate brokers. Velez v. 

Izquierdo, 162 D.P.R. 88 (2004).

The referenced legislative piece gave 

D.A.Co. the power to supervise the real estate 

business in Puerto Rico and the sale in Puerto 

Rico of properties located outside this 

jurisdiction. 20 L.P.R.A. sec. 3046. 

Specifically, it granted D.A.Co. the authority 

to conduct investigations and adjudicate 

complaints regarding transactions of 

properties located in or outside of Puerto 

Rico when incurring in any of the acts or 

practices forbidden by the law. 20 L.P.R.A. 

sec. 3046(a).

[6] To that effect, the Law to Regulate the 

Real Estate Business forbids every person 

subject to its provisions to incur or encourage 

another person to incur in the practice of 

“[n]ot providing to the parties at the time 

*375 of effectuating a real estate transaction, 

all the information necessary for it and all the 

documents that the applicable laws and 

regulations demand. (Emphasis provided) 20 

L.P.R.A. sec 3054 (a)(8). Also, the 

referenced statute prohibits “deliberately 

hiding essential information about the 

conditions of a property, in order to induce 

one of the parties to conclude the transaction 

in some terms, that if known, the transaction 

would not have been made or would have 

paid a lesser price”. 20 L.P.R.A. sec. 3054 

(a)(17).

[7] However, it is convenient to clarify that 

the Law to Regulate the Real Estate Business 

expressly excludes from its application “the 

owners of real estate properties located in or 

out of Puerto Rico that sell their own real 

estate properties when they do not habitually 

work selling real estate”. (Emphasis 

provided). 20 L.P.R.A. sec. 3056(e). The 

legislative measure in question defines owner

as the title owner of a real estate property 

located in or out of Puerto Rico that requests 

or retains the services of a real estate broker, 

seller or company to carry out a real estate 

transaction regarding said real property. 20 

L.P.R.A. sec. 3025 (f).

With these precepts in mind, and in light of 

what was stated regarding the scope of the 

faculties of the administrative agencies, we 

must decide if D.A.Co. has personal 

jurisdiction over the sellers the ArredondoPerez ladies, pursuant to the Law to Regulate

the Real Estate Business.

III.

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Exhibit C Page 5 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

In this case, the Izquierdo-Amieiro couple 

filed with D.A.Co. a complaint against the 

real estate company Pinnacle in light of what 

was provided in the Law *376 to Regulate the 

Real Estate Business. It, in turn, requested 

that the Arredondo-Perez ladies be included 

as indispensable parties. D.A.Co. took the 

writ and ordered the Izquierdo-Amieiro 

couple to amend the complaint filed to 

include the Arredondo-Perez ladies as 

indispensable parties. However, they allegedand today sustain before us-that D.A.Co. did 

not have jurisdiction over them pursuant to 

such legislation. They are right.

[8] As it is evident from the norms stated 

above, the Law to Regulate the Real Estate 

Business grants jurisdiction to D.A.Co. to 

address complaints against real estate 

brokers, sellers and companies when they 

incur in any of the practices prohibited by the 

statute. The statute expressly provides that its 

provisions will not be applicable to the 

owners that do not habitually work in the real 

estate business.

In this case, it is not shown in the case file 

that the Arredondo-Perez ladies worked in 

the real estate business. On the contrary, it is 

an uncontroverted fact that the ArredondoPerez ladies retained the services of Pinnacle 

for the sale of their property. Also, in the 

hearing held before D.A.Co., the IzquierdoAmieiro couple at no time alleged that the 

Arredondo-Perez ladies worked in the real 

estate business. Therefore, from the facts in 

this case it is clearly inferred that the 

Arredondo-Perez ladies are owners of a real 

estate property located in Puerto Rico and 

that they do not habitually work in the real 

estate business.

Pursuant to the foregoing, when D.A.Co. 

assumed jurisdiction over the ArredondoPerez ladies pursuant to the Law to Regulate 

the Real Estate Business, it awarded itself a 

jurisdiction it evidently did not have. 

D.A.Co. did not have the discretion to 

assume jurisdiction over the appellees 

pursuant to the Law to Regulate the Real 

Estate *377 Business, when such statute 

excludes from its application the owners that 

do not work in real estate. Clearly, one cannot 

include in the law, via interpretation, what is 

not provided in it.

[9] Also, there is no doubt that D.A.Co. was 

not permitted from agreeing to Pinnacle’s 

request to include in the complaint the 

Arredondo-Perez ladies as indispensable 

parties. Note that Pinnacle is not a consumer 

as defined by D.A.Co.’s regulation but a 

merchant that cannot take advantage of the 

administrative structure of D.A.Co. to 

vindicate its rights. See, Martinez v. Rosado, 

supra. In order to maintain the effectiveness 

of the administrative procedure before 

D.A.Co., we cannot agree for it to be used to 

address claims that very well could be 

resolved in an ordinary fashion. See Perez 

Rios v. Hull Dobbs, supra, where we 

expressed ourselves about that. 

Therefore, we cannot endorse the practice of 

using arguments of indispensable party as 

subterfuge to avoid the jurisdiction conferred 

by the organic law of the agency. We must 

remember that D.A.Co. is not a general 

jurisdiction forum and it has to limit itself to 

the authority that was delegated to it by the 

Legislative Assembly. Resolving the 

contrary would produce results incompatible 

with the purpose of the law and with the very 

policy of legislative delegation. 

Lastly, it is convenient to clarify that as 

D.A.Co. could not agree to Pinnacle’s request 

to include the Arredondo-Perez ladies as 

Case:17-03283-LTS Doc#:3858-3 Filed:09/05/18 Entered:09/05/18 09:57:20 Desc:

Exhibit C Page 6 of 7
CERTIFIED TRANSLATION

Amieiro Gonzalez v. Pinnacle Real EstateHome Team, 173 D.P.R. 363 (2008)

_____________

2008 TSPR 52

I, Juan E. Segarra, USCCI #06-067/translator, certify that the foregoing is a true and accurate

translation, to the best of my abilities, of the document in Spanish which I have seen.

codefendants in the administrative process, it 

also could not assume jurisdiction over the 

appellees pursuant to the Residential LeadBased Paint Hazard Act. Certainly, the 

referenced federal statute contains provisions 

applicable to the owners of a property when 

they expect to sell or rent it *378 even though 

there has been the intervention of a real estate 

broker. See 42 U.S.C.A. sec. 4852d. 

However, this does not mean that D.A.Co. 

has the faculty to assume jurisdiction over 

those persons even if the criteria and 

necessary requirements for it are not met. 

Keep in mind that D.A.Co.’s jurisdiction is 

outlined by it organic law and by other laws 

through which the legislator delegated in it 

investigative, regulatory and adjudicative 

faculties. Pursuant to these faculties 

delegated, D.A.Co. could not accede to 

Pinnacle’s request to include the ArredondoPerez ladies as codefendants as it is not 

considered a consumer regarding the 

Arredondo-Perez ladies. 

[10] Even if we acknowledge there is a wide 

array of matters that can be brought to the 

consideration of D.A.Co., they are all 

outlined within the powers delegated and are 

directly related with the objective that 

motivated its creation: the vindication and 

implementation of the rights of the 

consumers. Therefore, the mere fact that the 

federal law has provisions addressed towards 

owners that do not habitually work in the real 

estate business, does not imply that D.A.Co. 

can assume jurisdiction over them when such 

action would produce a result contrary to its 

organic law. Therefore, regardless that the 

agency can apply the provisions of the federal 

statute regarding persons over which it 

possesses jurisdiction-aspect that has not 

been questioned by the petitioners-it is 

evident that such law does not represent an 

alteration to D.A.Co.’ duties nor has the 

effect to extend the jurisdiction that was 

granted to it by the Legislative Assembly.

In light of the foregoing, we conclude that the 

appellate forum acted correctly when 

determining that D.A.Co. exceeded its 

discretion when assuming jurisdiction over 

the Arredondo-Perez ladies. *379.

IV.

For the preceding grounds, we confirm the 

judgment of the Court of Appeals. 

Judgment shall be entered accordingly.

Associate Judge Mr. Rivera Perez did not 

intervene. 

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Exhibit C Page 7 of 7