Farris v. MISSISSIPPI REAL ESTATE COM'N

994 So. 2d 229, 2008 WL 2102423
CourtCourt of Appeals of Mississippi
DecidedMay 20, 2008
Docket2007-CC-00331-COA
StatusPublished
Cited by3 cases

This text of 994 So. 2d 229 (Farris v. MISSISSIPPI REAL ESTATE COM'N) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farris v. MISSISSIPPI REAL ESTATE COM'N, 994 So. 2d 229, 2008 WL 2102423 (Mich. Ct. App. 2008).

Opinion

994 So.2d 229 (2008)

Thomas Woodrow FARRIS, Sr. And Charlotte J. Kelly, Appellants,
v.
MISSISSIPPI REAL ESTATE COMMISSION, Appellee.

No. 2007-CC-00331-COA.

Court of Appeals of Mississippi.

May 20, 2008.
Rehearing Denied September 2, 2008.
Certiorari Denied November 6, 2008.

*230 John D. Watson, Southhaven, William F. Travis, attorneys for appellants.

John L. Maxey and Paul H. Kimble, Jackson, attorneys for appellee.

Before KING, C.J., IRVING and CHANDLER, JJ.

KING, C.J., for the Court.

¶ 1. Thomas Woodrow Farris, Sr. (Farris), and Charlotte Jean Kelly (Kelly) appeal the DeSoto County Circuit Court's affirmance of the Mississippi Real Estate Commission's order, which revoked Farris's and Kelly's real estate licenses and barred them from reapplying for another license for twenty-four months. On appeal, Farris and Kelly raise the following issues: (1) whether the circuit court erred *231 by affirming the Commission's ruling that Farris's and Kelly's actions constituted improper dealing, (2) whether the circuit court erred by affirming the Commission's ruling that Farris failed to instruct and supervise the Kellys, (3) whether the circuit court erred by affirming the Commission's ruling that Kelly acted independently of her supervising broker and performed real estate services without his full consent and knowledge, and (4) whether the circuit court erred by affirming the sanctions the Commission imposed upon Farris and Kelly. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2003, Richard Praytor, administrator of the Commission, received a telephone inquiry regarding whether or not it was proper for a closing attorney to issue a commission check to Farris Realty when the sales contract had a Century 21 logo. Upon further investigation, the Commission discovered that Charles Kelly (Charles) was the salesperson involved in the transaction in question. Charles worked for Century 21 Family Realtors in Germantown, Tennessee. Additionally, he and his wife, Kelly, collectively "the Kellys," engaged in real estate transactions in Mississippi as nonresident licensees. The Kellys operated under Farris's brokers license, and Farris was required to supervise their work. The Commission filed a complaint against Farris and the Kellys on February 11, 2004, and scheduled a hearing for April 12, 2004.

¶ 3. At the hearing, Charles testified that he used the Century 21 contracts for several Farris Realty transactions because the Century 21 form was much more ideal than the long Mississippi forms. The forms contained the Century 21 logo, but the Kellys were listed as the selling agents and Farris or Farris Realty was listed as the broker in the body of the contract.

¶ 4. The owner of Century 21 Family Realtors was unaware that Charles used his forms in these transactions. Farris and the Kellys did not know that using the Century 21 forms was an improper practice. They believed using the forms was acceptable as long as they disclosed that Farris Realty was actually participating in the transaction.

¶ 5. The Commission determined that Farris did not properly supervise the Kellys. During the hearing, all parties testified that Farris, who was approximately eighty years old at the time, was hospitalized with heart problems during the transactions in question. Investigator David Griffith testified that Farris was only provided a copy of the closing statement and a commission check at the close of the transactions. He did not see the listing agreements, sales contracts, working with a real estate broker forms, property condition disclosure statements, or any other documents concerning the transactions. Furthermore, the Kellys had a separate escrow account, and Farris gave Kelly permission to sign earnest money checks while he was in the hospital.

¶ 6. After the hearing, the Commission found that Farris and the Kellys were involved in improper dealing; Farris, as the responsible broker, failed to supervise the Kellys; and the Kellys acted independently of Farris. The Commission revoked their licenses and barred them from reapplying for another license for twenty-four months. On January 23, 2007, the circuit court affirmed the Commission's order, finding that it was supported by substantial evidence. Aggrieved, Farris and *232 Kelly filed this appeal.[1]

STANDARD OF REVIEW

¶ 7. An agency's decision will not be disturbed on appeal absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. Mississippi Real Estate Comm'n v. Anding, 732 So.2d 192, 196(12) (Miss.1999).

ANALYSIS

I. Whether the circuit court erred by affirming the Commission's ruling that Farris's and Kelly's actions constituted improper dealing.

¶ 8. First, Farris and Kelly argue that this Court should apply a heightened scrutiny to the Commission's findings because the Commission's order is almost verbatim the allegations in the Commission's complaint. Generally, administrative findings of fact are not reviewed de novo on appeal; however, heightened scrutiny may apply where the Commission adopts its own allegations as findings and conclusions. Anding, 732 So.2d at 196(10) (citing Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995)).

¶ 9. In Brooks, a chancellor failed to make his own findings of fact and conclusions of law, instead, adopting verbatim the findings of fact and conclusions of law prepared by a litigant's attorney. Brooks, 652 So.2d at 1118. In Anding, the Commission's findings of facts and conclusions of law were taken entirely from the Commission's complaint against Anding. Anding, 732 So.2d at 196(10). The supreme court determined that the Commission alleged and determined that Anding was guilty of soliciting clients when no evidence of such existed in the record. Id. at 198(18).

¶ 10. In the instant case, the Commission's order is very similar to its complaint against Farris and Kelly. However, the Commission investigated the matter; the testimony during the hearing confirmed the Commission's suspicions; and Farris and Kelly did not present any evidence to rebut the Commission's allegations. Farris and Kelly merely claim they were unaware of any wrongdoing. Accordingly, this case does not require the heightened review that Farris and Kelly seek.

¶ 11. Second, the Commission's order found that Farris and Kelly violated the Mississippi Real Estate Brokers License Act, Mississippi Code Annotated section 73-35-21(1)(m) (Rev.2004), which states:

Any act or conduct, whether of the same or a different character than hereinabove specified, which constitutes or demonstrates bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealing.

¶ 12. Farris and Kelly argue that in "cases wherein the Supreme Court held that the Commission's finding of improper dealing was supported by substantial evidence, there was some type of fraudulent or bad faith intent on the part of the real estate licensee" and harm inflicted to one or more parties to the action. See, e.g., Mississippi Real Estate Comm'n v. Hennessee, 672 So.2d 1209, 1218 (Miss.1996) (finding substantial evidence to suspend the broker's license where the broker misrepresented the existence of a termite inspection certificate); Smith v. Sullivan,

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Bluebook (online)
994 So. 2d 229, 2008 WL 2102423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-mississippi-real-estate-comn-missctapp-2008.