In order to establish a cause of action based on a claim of constructive fraud, Plaintiff must allege "a breach of a legal or equitable duty which the law declares fraudulent because of its tendency to deceive others." Parker v. E. I. DuPont de Nemours, Inc., 121 N.M. 120, 132, 909 P.2d 1, 13 (Ct.App. 1995) (quoting Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 186, 500 P.2d 1304, 1309 (Ct.App. 1972)). Vista contends that it owed no duty to Plaintiff.

The defendant contends that there is no such thing as innocent misrepresentation or constructive fraud in the State of New Mexico. This clearly is not the law. Snell v. Cornehl, 81 N.M. 248, 466 P.2d 94 (1970) and Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 500 P.2d 1304 (Ct.App. 1972), stand for the proposition that constructive fraud is a breach of a legal or equitable duty, irrespective of the moral guilt of the fraud-feasor. It is not necessary to prove dishonesty of purpose nor intent to deceive to maintain a cause of action for constructive fraud.

"An action for constructive fraud is maintainable where there is a nondisclosure of material facts and the person charged with the constructive fraud had a duty to speak under existing circumstances." Barber's Super Markets. Inc. v. Stryker, 84 N .M. at 186, 500 P.2d 1304, 1309 (Ct. App.1972) (citing Everett v. Gilliland, 141 P.2d 326, 330-331 (N.M. 1943)). "Whether a duty exists is generally a question of law for the trial court to decide."

In the instant case, it also constituted "constructive fraud". Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 500 P.2d 1304 (Ct.App. 1972). Here, we also said:

Such fraud may be present on the part of the fraud feasor without any showing of dishonesty of purpose or intent to deceive Gaston v. Hartzell, 89 N.M. 217, 549 P.2d 632, 634 (1976) ( quoting Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 500 P.2d 1304, 1309 (1972)) (emphasis in original). In cases in which the false statement or omission also constitutes constructive fraud, "[i]rrespective of the good faith with which a false representation is made, if it is justifiably relied on by the purchaser, he has no duty to make inquiries or examination of the misrepresentation, unless he had knowledge of his own or of facts which should arouse suspicion and cast doubt upon the truth of the statement made."

"An action for constructive fraud is maintainable where there is a nondisclosure of material facts and the person charged with the constructive fraud had a duty to speak under existing circumstances." Barber's Super Markets, Inc. v. Stryker, 500 P.2d 1304, 1309 (N.M. Ct. App. 1972). In the absence of a fiduciary relationship between the parties, "constructive fraud is defined as acts contrary to public policy, to sound morals, to the provisions of a statute, etc., however honest the intention with which they may have been performed."

. . . An action for constructive fraud is maintainable where there is a nondisclosure of material facts and the person charged with the constructive fraud had a duty to speak under existing circumstances." Barber's Super Markets, Inc. v. Strykder, 500 P.2d 1304, 1309 (Ct. App. N.M. 1972). Claims made under the Unfair Practices Act, NMSA 1978 § 47-12-2(D) & (E). Section (D), unfair or deceptive trade practices, requires a "false or misleading oral or written statement . . . or other representation of any kind knowingly made in connection with the sale . . . of goods or services . . . ."

"An action for constructive fraud is maintainable where there is a nondisclosure of material facts and the person charged with the constructive fraud had a duty to speak under existing circumstances." Barber's Super Markets, Inc. v. Stryker, 84 N.M. at 186, 500 P.2d at 1309. "Whether a duty exists is generally a question of law for the trial court to decide."

Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.Scudder v. Hart, 110 P.2d 536, 539 (N.M. 1941) (emphasis in original); see also Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 186 (Ct. App. 1972) (citing Scudder); Archuleta v. Kopp, 90 N.M. 273, 276 (Ct. App. 1977) (quoting Barber's Super Markets). Constructive fraud cases hinge on a duty of disclosure.

A "finder" or "middleman" is one whose employment is limited to bringing parties together so that they may negotiate their own contract. Tyrone v. Kelley, 9 Cal.3d 1, 9, 507 P.2d 65, 70, 106 Cal. Rptr. 761, 766 (1973). He has no power to and does not negotiate the terms on which the principals deal. Barber's Super Markets, Inc. v. Stryker, 84 N.M. 181, 188, 500 P.2d 1304, 1311 (1972). He must not be invested with the least discretion in the matter of advising or negotiating the sale or purchase of property, and neither party must not have the right to rely on him for the benefit of his skill or judgment.