PER CURIAM:
The instant action is before this Court upon the appeal of Timberline Four Seasons Resort Management Co., Inc., and Long Run Realty, Inc. [hereinafter sometimes referred to as “Appellants”]
from a July 9, 2007, order entered by the Circuit Court of Tucker
County denying Appellants’ Petition for Injunctive Relief. Herein, Appellants allege that the circuit court erred by not finding that an agency relationship existed between Appellants and Pat Herían or her brokerage businesses, Timberline Realty, Inc., and Timberline Resort Realty, Inc. [hereinafter sometimes referred to as “Appellees”]. Appellants also allege that the circuit court erred in its application of W. Va.Code § 30-40-12 to the case
mb judice,
and in failing to return certain business records and telephone numbers deemed necessary by Appellants to the operation of their real estate division. Such records were taken by Ms. Herían when she vacated Appellant’s property. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the July 9, 2007, order of the Circuit Court of Tucker County is reversed and remanded.
I.
FACTUAL AND PROCEDURAL HISTORY
Timberline Four Seasons is a family-owned four seasons resort. Pat Herían was hired by Timberline Four Seasons in 1991. She provided real estate brokerage services for Timberline Four Seasons’ real estate division until January, 2007.
At the time Ms. Her-Ian was first hired, no written contract of employment was entered into between the parties. However, from May 1994 to May 1996, a written agreement existed between the parties.
This was the only written agreement between them. Upon the expiration of the 1996 contract, no further written agreement was ever put in place. Sometime in 2000, Ms. Herían incorporated Timberline Resort Realty, Inc. and Timberline Realty, Inc.
During her time with Timberline Four Seasons, Ms. Herían was paid a salary and she received a W-2. Appellants allege that Ms. Herían was paid for the brokerage services she provided. However, Appellees allege that as a general partnership, Timberline Resort Realty was operated wholly separate and apart from Timberline Four Seasons. Ms. Herían alleges that she received a salary from Timberline Four Seasons only for her promotional work for the resort and for her liaison between the resort and independent developers of resort real estate, not for her brokerage services.
She asserts that at the same time, she operated her real estate sales and rental businesses, Timberline Resort Realty, Inc. and Timberline Realty, Inc., as a licensed broker out of the Roundhouse, which she claims she rented from Timberline Four
Seasons.
Appellees assert that because neither Herían nor Dearborn were owners or officers of Timberline Four Seasons, they could not have been brokers for that corporation. Likewise, Appellees assert that because Timberline Four Seasons did not have a licensed real estate broker as an owner or officer, it could not have engaged in the business of real estate brokerage.
Ms. Herlan’s employment continued until early 2007, whereupon she was asked to vacate the Roundhouse.
Upon her departure, Ms. Herían removed certain business records that Appellants claim are vital to the continued operation of its real estate division.
Ms. Herían also hired a computer technician to remove and/or delete certain information from computer software located on the premises and to move such information to her new location. The cost of erasing and moving this data was approximately $25,000.00.
In addition to tangible and electronic records, Ms. Herían also had the telephone numbers for the Roundhouse moved to her new location.
However, computer hardware, the server, accounting records, and blank computer software were left at the Roundhouse. There is no dispute that Timberline Four Seasons owns those items, which were utilized by Ms. Herían throughout her employment.
Shortly following Ms. Herlan’s departure from the Roundhouse, Appellants filed a Petition for Injunctive Relief in the Circuit Court of Tucker County, West Virginia, on June 24, 2007. On July 3, 2007, Appellees filed their Answer and the circuit court held a trial on the petition. Following the trial, the parties submitted proposed Findings of Fact and Conclusions of Law. The circuit court entered its Findings of Fact and Conclusions of Law on July 6, 2007, and denied the petition for injunctive relief. Specifically, the circuit court found that Timberline Resort Realty was not owned or controlled by Timberline Four Seasons, and thus, it was not an agent under the exclusive control of Timberline Four Seasons with respect to the real estate functions performed by Pat Herían d.b.a. Timberline Resort Realty. Appellants filed a Motion for a New Trial on July 18, 2007. Thereafter, on July 31, 2007, the circuit court denied Appellant’s motion, whereupon Appellants filed a Petition for Appeal with this Court.
II.
STANDARD OF REVIEW
We have traditionally held that
“Unless the absolute right to injunctive relief is conferred by statute, the power to
grant or refuse or to modify, continue or dissolve a temporary or permanent injunction, whether preventative or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.”
Syl. Pt. 11,
Stuart v. Realty Corp.,
141 W.Va. 627, 92 S.E.2d 891 (1956).
Additionally, we have held that the standard of review for challenges to Findings of Fact and Conclusions of Law by a Circuit Court is a two-pronged deferential standard. “In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a
de novo
review.” Syl. Pt. 1,
Public Citizen, Inc. v. First National Bank in Fairmont,
198 W.Va. 329, 480 S.E.2d 538 (1996). With these standards of review in mind, we proceed to consider the parties’ arguments.
III.
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PER CURIAM:
The instant action is before this Court upon the appeal of Timberline Four Seasons Resort Management Co., Inc., and Long Run Realty, Inc. [hereinafter sometimes referred to as “Appellants”]
from a July 9, 2007, order entered by the Circuit Court of Tucker
County denying Appellants’ Petition for Injunctive Relief. Herein, Appellants allege that the circuit court erred by not finding that an agency relationship existed between Appellants and Pat Herían or her brokerage businesses, Timberline Realty, Inc., and Timberline Resort Realty, Inc. [hereinafter sometimes referred to as “Appellees”]. Appellants also allege that the circuit court erred in its application of W. Va.Code § 30-40-12 to the case
mb judice,
and in failing to return certain business records and telephone numbers deemed necessary by Appellants to the operation of their real estate division. Such records were taken by Ms. Herían when she vacated Appellant’s property. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the July 9, 2007, order of the Circuit Court of Tucker County is reversed and remanded.
I.
FACTUAL AND PROCEDURAL HISTORY
Timberline Four Seasons is a family-owned four seasons resort. Pat Herían was hired by Timberline Four Seasons in 1991. She provided real estate brokerage services for Timberline Four Seasons’ real estate division until January, 2007.
At the time Ms. Her-Ian was first hired, no written contract of employment was entered into between the parties. However, from May 1994 to May 1996, a written agreement existed between the parties.
This was the only written agreement between them. Upon the expiration of the 1996 contract, no further written agreement was ever put in place. Sometime in 2000, Ms. Herían incorporated Timberline Resort Realty, Inc. and Timberline Realty, Inc.
During her time with Timberline Four Seasons, Ms. Herían was paid a salary and she received a W-2. Appellants allege that Ms. Herían was paid for the brokerage services she provided. However, Appellees allege that as a general partnership, Timberline Resort Realty was operated wholly separate and apart from Timberline Four Seasons. Ms. Herían alleges that she received a salary from Timberline Four Seasons only for her promotional work for the resort and for her liaison between the resort and independent developers of resort real estate, not for her brokerage services.
She asserts that at the same time, she operated her real estate sales and rental businesses, Timberline Resort Realty, Inc. and Timberline Realty, Inc., as a licensed broker out of the Roundhouse, which she claims she rented from Timberline Four
Seasons.
Appellees assert that because neither Herían nor Dearborn were owners or officers of Timberline Four Seasons, they could not have been brokers for that corporation. Likewise, Appellees assert that because Timberline Four Seasons did not have a licensed real estate broker as an owner or officer, it could not have engaged in the business of real estate brokerage.
Ms. Herlan’s employment continued until early 2007, whereupon she was asked to vacate the Roundhouse.
Upon her departure, Ms. Herían removed certain business records that Appellants claim are vital to the continued operation of its real estate division.
Ms. Herían also hired a computer technician to remove and/or delete certain information from computer software located on the premises and to move such information to her new location. The cost of erasing and moving this data was approximately $25,000.00.
In addition to tangible and electronic records, Ms. Herían also had the telephone numbers for the Roundhouse moved to her new location.
However, computer hardware, the server, accounting records, and blank computer software were left at the Roundhouse. There is no dispute that Timberline Four Seasons owns those items, which were utilized by Ms. Herían throughout her employment.
Shortly following Ms. Herlan’s departure from the Roundhouse, Appellants filed a Petition for Injunctive Relief in the Circuit Court of Tucker County, West Virginia, on June 24, 2007. On July 3, 2007, Appellees filed their Answer and the circuit court held a trial on the petition. Following the trial, the parties submitted proposed Findings of Fact and Conclusions of Law. The circuit court entered its Findings of Fact and Conclusions of Law on July 6, 2007, and denied the petition for injunctive relief. Specifically, the circuit court found that Timberline Resort Realty was not owned or controlled by Timberline Four Seasons, and thus, it was not an agent under the exclusive control of Timberline Four Seasons with respect to the real estate functions performed by Pat Herían d.b.a. Timberline Resort Realty. Appellants filed a Motion for a New Trial on July 18, 2007. Thereafter, on July 31, 2007, the circuit court denied Appellant’s motion, whereupon Appellants filed a Petition for Appeal with this Court.
II.
STANDARD OF REVIEW
We have traditionally held that
“Unless the absolute right to injunctive relief is conferred by statute, the power to
grant or refuse or to modify, continue or dissolve a temporary or permanent injunction, whether preventative or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.”
Syl. Pt. 11,
Stuart v. Realty Corp.,
141 W.Va. 627, 92 S.E.2d 891 (1956).
Additionally, we have held that the standard of review for challenges to Findings of Fact and Conclusions of Law by a Circuit Court is a two-pronged deferential standard. “In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a
de novo
review.” Syl. Pt. 1,
Public Citizen, Inc. v. First National Bank in Fairmont,
198 W.Va. 329, 480 S.E.2d 538 (1996). With these standards of review in mind, we proceed to consider the parties’ arguments.
III.
DISCUSSION
Appellants allege that the circuit court erred by not finding that an agency relationship existed between Appellants and Pat Herían or her brokerage businesses, Timberline Realty, Inc., and Timberline Resort Realty, Inc. [hereinafter sometimes referred to as “Appellees”]. Appellants also allege that the circuit court erred in its application of W. Va.Code § 30-40-12 to the case
sub judice,
and in failing to order the return of certain business records and telephone numbers to Appellants which were necessary to the operation of Appellant’s real estate division which had been taken by Ms. Herían when she vacated Appellant’s property. We will address each of these arguments in turn.
A. Agency Relationship
The central dispute in this ease revolves around the classification of the nature of the business relationship between the parties, and the issue of whether an agency relationship existed. Appellants assert that the circuit court erred in failing to find that an agency relationship existed between the parties. Conversely, Appellees assert that an agency relationship did not exist because Ms. Herían was paid by Timberline Four Seasons for her promotional work, not for any service as a broker. Appellees further allege that Herlan’s business as a real estate broker was operated separately from Timberline Four Seasons and it would have been unlawful for it to have been operated otherwise pursuant to West Virginia statutory law.
In
State ex rel. Key v. Bond,
94 W.Va. 255,118 S.E. 276 (1923), we defined an agent in the following manner:
“An agent in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons; while a ‘servant’ or ‘employee’ is one engaged, not in creating contractual obligations, but in rendering service, chiefly with reference to things but sometimes with reference to persons when no contractual obligation is to result.”
Syl. Pt. 3,
Id.
In assessing whether an agency relationship exists, we have traditionally held that
“[t]here are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of
respondeat superior:
(1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative.”
Syl. Pt. 5,
Paxton v. Crabtree,
184 W.Va. 237, 400 S.E.2d 245 (1990). “One of the essential elements of an agency relationship is the existence of some degree of control by the principal over the conduct and activities of the agent.” Syl. Pt. 3,
Teter v. Old Colony,
190 W.Va. 711, 441 S.E.2d 728 (1994).
Specifically, Appellants take issue with the circuit court’s finding that Timberline Four Seasons did not maintain any power of control over Ms. Herían. We agree with the contentions of the Appellants. We find that Appellants presented sufficient evidence demonstrating that Timberline Four Seasons retained some degree of control over the manner in which Ms. Herían performed her obligations.
In reviewing the facts of the case
sub judice,
the first three elements of the test are easily met. First, Timberline Four Seasons selected and has engaged Ms. Herían in some form of employment capacity since 1991. Second, it is undisputed that Timberline Four Seasons paid Ms. Herían for her services. Third, Timberline Four Seasons had the power of dismissal, and this is evidenced by the fact that it terminated the employment relationship with Ms. Herían in early 2007. However, the last element, the determinative factor of control, requires more analysis of the facts presented.
In its findings of fact and conclusions of law entered by the circuit court on July 6, 2007, the circuit court relied upon certain facts in denying Appellant’s request for injunctive relief. For instance, the circuit court relied upon the fact that Ms. Herlan’s written employment contract had expired and no written agreement was in place at the time Timberline Four Seasons terminated the relationship. However, “[pjroof of an express contract of agency is not essential to the establishment of the relation. It may be inferred from facts and circumstances, including conduct.”
General Elec. Credit Corp. v. Fields,
148 W.Va. 176,181, 133 S.E.2d 780, 783 (1963). When we review the circumstances herein and the conduct that occurred between the parties, we can infer that an agency relationship existed.
In addition to the above, the circuit court relied upon the fact that Timberline Four Seasons gave no exclusive real estate listings to Appellees, nor did it receive any portion of the commissions earned by Appellees. It also relied upon the fact that all the rental management contracts held by Timberline Resort Realty were executed between the rental unit owners and Pat Herían, as broker, and that Timberline Four Seasons was not a party to those contracts. It further found that Timberline Four Seasons had no authority over the Appellee’s separate accounts, and no ownership interests in the trust accounts held by Pat Herían as a licensed real estate broker. The circuit court found that Appellees expended approximately $250,000 annually in advertising, and Timberline Four Seasons did not contribute to that.
In assessing this evidence, the circuit court made a general finding that the evidence showed that Timberline Resort Realty was not owned by nor controlled by Timberline Four Seasons, and thus, Timberline Resort Realty was not an agent under the exclusive control of Timberline Four Seasons with respect to the real estate functions performed by Pat Herían d.b.a. Timberline Resort Realty. However, the circuit court’s order failed to analyze and all but ignored several other key facts demonstrating that Timberline Four Seasons actually maintained some level of control over Timberline Resort Realty and Pat Herían.
First, evidence was presented to the circuit court that Timberline Four Seasons controlled the operating checking account for the real estate division. Tom Blanzy, the general manager of Timberline Four Seasons, provided the following testimony at trial:
Q: Throughout the past sixteen years of Ms. Herlan’s employment, did you have the opportunity to supervise the day-today functions of Timberline Resort Realty?
A: I conferred with Ms. Herían on a fairly regular basis. I would go down to the real estate office maybe three or four times a month. I was a co-signature on the operating account for the operation and so I reviewed some of the expenditures and we talked over — not in a formal way but — some budget issues and things of that nature.
Ms. Herían also provided the following trial testimony regarding Timberline Four Seasons’ financial control:
Q: Okay. Who paid the taxes for Timberline Resort Realty?
A: All of the expenses for the operation were handled out of the operation of the — the rental and sales operation. Any other funds were put into this joint account and we made sure all of the obligations of the realty office and the round house were paid. Then any profits from that was (sic) transferred to the resort and they paid taxes on it and that is the way it has been from the very beginning. As I mentioned to Tom Blanzy and to their attorney and to my attorney in March, it has been very muddy water and I am partly to blame for that.
In addition to this testimony, there was also evidence provided to the circuit court that Ms. Herían left the accounting records in the Roundhouse upon vacating the property. Additionally, Appellant presented evidence that Timberline Four Seasons paid all of the taxes for the real estate operation. Dr. Reichle, Timberline Four Season’s president, testified:
Q: Did Timberline Four Seasons pay the taxes for the Timberline Realty Operation?
A: Yes, all of the divisions of the resort culminate in a payment of the taxes as a whole.
Furthermore, evidence was presented to the circuit court that the employees who worked at the Roundhouse were Timberline Four Seasons employees, not Timberline Resort Realty employees. Dr. Reichle testified:
Q: And as to the employees in that office, whether it be Ms. Herían or her assistants or any other employees that they might have had, did Timberline Four Seasons Resort Management [Company] Inc. also pay the taxes for those employees, withholding, W-2 and that sort of thing?
A: Yes that was submitted each year as a single tax form including all of the entities including the real estate division[.]
Ms. Herían also testified that Timberline Four Seasons maintained control over the payroll for the operation:
That is an arrangement we had made with the resort way back when. I had wanted to have our own payroll within the office and the resort said they need to do that because it was good for them to do and they could watch over and oversee what was happening in the real estate office. They were concerned that I would be taking a profit away from them.
Additionally, when Ms. Herían was asked directly about the nature of her relationship and affiliation with Timberline Four Seasons, she testified:
Q: Okay. So would it be an unfair statement to say that you are a division of Timberline Four Seasons?
A: Yes, it is.
Q: Okay, When would [sic] have become an unfair statement to say?
A: Oh, Lord! It started back in the nineties.
Q: So as of the year 2000 it would have been an unfair statement to say that you are a division of or related to Timberline Four Seasons?
A: Definitely.
However, Appellants provided evidence to impeach Ms. Herlan’s statements by providing the court a grant application signed by Ms. Herían under oath in 2005. Her sworn statement on the 2005 application reads: “Timberline Resort Realty is a vacation home rental
arm, of Timberline Four Seasons Resent ”
(Emphasis added). This sworn statement was signed five years after Ms. Herían claims she incorporated Timberline Resort Realty and separated from Timberline Four Seasons. Ms. Herían testified before the circuit court: “I don’t know who wrote this, sir.” She claimed that she did not read what the grant application stated, she just signed what her secretary had given her.
Perhaps the most compelling piece of evidence of an existing agency relationship is a business sign that remained hanging on the wall of the Timberline Four Seasons lodge stating, “Timberline Resort Realty
A division
of Timberline Four Seasons Resort.” (Emphasis added). Ms. Herían testified that the sign had been in place for four or five years. This sign even remained hanging at the time the trial was conduct by the circuit court.
In reviewing all of this evidence in the record together, we find that all of this evidence indicates that Timberline Four Seasons exercised some level of control over the finances, payroll, accounting, taxes and employees of Ms. Herían and Timberline Resort Realty. Appellants sufficiently demonstrated that the real estate operation did not operate independently of Timberline Four Seasons. Rather, it was treated as a division of Timberline Four Seasons. In light of the fact that Appellants presented this evidence to the cmcuit court, and thus met their burden of proving that an agency relationship existed, we find that the failure of the circuit court to assess this evidence in making its determination, and its failure to render injunctive relief to Timberline Four Seasons constituted an abuse of discretion.
B. Retainer of Business Records
Next, Appellants contend that because Ms. Herían was an agent of Timberline Four Seasons, she owed it a duty of loyalty, and thus she was prohibited from engaging in self-dealing. Appellants assert that Ms. Herían failed to act in the utmost good faith when she removed all of the business records necessary to the operation of the real estate division upon her departure from the Roundhouse. Conversely, Appellees contend that the
West Virginia Real Estate License Act,
W.Va.Code § 30-40-12 (2002), prohibited her from returning any of the business records she took from the Roundhouse because neither Timberline Four Seasons nor any member of its board had a real estate broker’s license.
W.Va.Code § 30-40-12 [2002] provides:
(b) No broker’s license shall be issued in the name of a corporation, association or partnership except through one of its members or officers.
(c) No broker’s license shall be issued in the name of a corporation, association or partnership unless each member or officer, who will engage in real estate business, obtains a license as a real estate salesperson or associate broker.
Id.
Ms. Herlan claims that by virtue of this code section, she was not an agent of Timberline Four Seasons, that she owed it no duty, and that she cannot provide it with the business records because to do so would be illegal.
Upon review of the specific facts and circumstances before us, we find Appellee’s argument unconvincing. We have long held that “the first duty of the agent is to be loyal to his trust.”
Moore v. Turner,
137 W.Va. 299, 316, 71 S.E.2d 342, 352 (1952)(cit
ing
Mechem on Agency 2d. § 1588). “In the
conduct of his principal’s business an agent is held to the utmost good faith, and will not be allowed to use his principal’s property for his own advantage, or to derive secret profits or advantages to himself by reason of the relation of principal and agent existing between him and his principal.” Syl. Pt. 1,
Sutherland v. Guthrie,
86 W.Va. 208, 103 S.E. 298 (1920).
Not only is W. Va.Code § 30-40-12 silent as to who may lawfully possess the brokerage records, but Appellees also failed to cite any authority that Appellants, as the principal, were legally prohibited from having access to the records. Appellants had already hired a replacement for Ms. Herían at the time of trial. Although neither Timberline Four Seasons nor any member of its board has a real estate broker’s license, at the time of trial, it had, via Long Run Realty, Inc., already reached an agreement with another real estate professional to replace Ms. Herían. Tom Blanzy, Long Run Realty’s General Manager, testified:
Q: Has Long Run Realty employed a broker?
A: We have an agreement with Kim Landis who is a broker in the valley. Q: And what is that agreement, sir?
A: The agreement is to provide brokerage services for sales and rental.
Furthermore, the records at issue were primarily obtained pursuant to Ms. Herlan’s agency relationship with Timberline Four Seasons. Thus, Ms. Herlan’s retention of the business records was not justified in the law. Accordingly, because the specific facts of this ease indicate that an agency relationship existed between the parties, we find that Ms. Herían owed a duty of loyalty to her principal, Timberline Four Seasons, to leave these records and materials at the Roundhouse upon her departure. Ms. Herían, as an agent, cannot rightfully use her position to engage in self-dealing at the expense of her principal and we find nothing in our reading of W. Va.Code § 30-40-12 which would sanction such conduct under this set of facts.
C. Retainer of Telephone Numbers
Lastly, the parties dispute the rights to certain telephone numbers placed in the name of Ms. Herían but advertised as the contact number for Timberline Four Seasons. Appellants contend that although there is no dispute that Ms. Herían registered the phones at the Roundhouse in her name when she was hired in 1991, she cannot now derive a personal advantage from them because she used that number in performance of her duties as an agent of Timberline Four Seasons. Appellants argue that they stand to suffer prejudice if Appellees are permitted to keep the telephone numbers at issue because it sent out roughly 400,000 brochures last year promoting the telephone numbers. Appellants assert that Ms. Herían has the numbers and is now benefitting from the advertising of her former principal.
Although this Court is aware of no specific precedent on point in West Virginia for this situation, we find that regardless of how the numbers are registered, based upon the duty of loyalty owed by an agent, it is not prudent for an agent to be permitted to retain the telephone number of her principal upon termination of the agency relationship. Accordingly, because the telephone numbers were registered and utilized by Ms. Herían as a function of her agency and employment with Timberline Four Seasons, we direct that the telephone numbers be restored to Appellants, for their future use in conjunction with Timberline Four Seasons business.
IV.
CONCLUSION
For the foregoing reasons, the July 9, 2007, order of the Circuit Court of Tucker
County is hereby reversed. The circuit court is directed to enter an order granting' Appellant’s request for injunctive relief, specifically ordering Appellees to return all applicable business records to Appellants that were taken by Ms. Herían upon her termination with Timberline Four Seasons, and ordering Appellees to return the subject telephone numbers to Appellants, and such other and further relief as is consistent with this opinion.
Reversed and Remanded.