MISSISSIPPI REAL ESTATE COM'N v. Anding, 97-CC-01534-SCT.

• Decision Date: 04 February 1999
• Docket Number: No. 97-CC-01534-SCT.,97-CC-01534-SCT.
• Citation: 732 So.2d 192
• Parties: MISSISSIPPI REAL ESTATE COMMISSION v. Sandra ANDING.
• Court: Mississippi Supreme Court

732 So.2d 192

MISSISSIPPI REAL ESTATE COMMISSION v. Sandra ANDING.

No. 97-CC-01534-SCT.

Supreme Court of Mississippi.

February 4, 1999.

John L. Maxey, II, John F. Hawkins, Jackson, Attorneys for Appellant.

Allen Flowers, Attorney for Appellee.

BEFORE PRATHER, C.J., McRAE and WALLER, JJ.

McRAE, Justice, for the Court:

¶ 1. The Mississippi Real Estate Commission appeals an October 27, 1997 order of the Lamar County Circuit Court reversing the sanctions imposed by the Commission against Sandra Anding, a real estate salesperson. While the parties basically agree on the facts, they differ as to whether the circuit court correctly applied the law to those facts in making its decision. Finding that the Commission's decision is not supported by the evidence in the record, we affirm the decision of the circuit court.

I.

¶ 2. Sandra Anding held a license as a real estate salesperson under the direction of the responsible broker, Brian McPhail of Colonial Realty in Hattiesburg, Mississippi, where she had worked for three years. She filed a Real Estate Transfer License Application with the Mississippi Real Estate Commission on April 29, 1996. A new certificate licensing her as a real estate salesperson affiliated with John J. Bethea, Jr., of Bethea Properties, also in Hattiesburg, was issued on May 6, 1996.

¶ 3. In a prepared statement presented at the Commission hearing, Anding, who was not represented by counsel during the administrative proceedings, discussed her departure from Colonial Realty and the arrangements she had made with McPhail,

I created a rental management system that I ran for Colonial Realty. But the time came for me to move on. In life we all strive to improve ourselves. As a single parent, I needed the security of knowing from day to day that I had a career and a secure income. I set my goal on a broker's license and operating my own company. In discussing this with Brian, he did not understand why I needed the security of my broker's license. He expressed anger and disappointment that I would do this to him. After all, he gave me opportunity to start this department at his company. In our discussion of my decision, he asked me to make a list of theses properties, tenants, phone numbers, et cetera. I told Brian that I had the files and that I was making sure that each file had a cover sheet to go with the status of the property and the tenants, et cetera, and that I would stay until the May accounts were closed for the May rental time period, which was usually around the 10th of each month, just to make sure that he knew how to run the rental department. Until this point, he had never ran monthly statements, paid bills or communicated with any of the clients. This was done solely by myself. When I left his office on Wednesday, April the 24th, I felt that everything was okay, and an understanding was made. I went back to the office on Friday, April the 26th, that morning to discover my license was taken off the wall and my empty frame left on my desk. At this time I felt I no longer had a relationship with Colonial realty. I felt notifying my clients of my departure was a courtesy, since most of the clients had never had any contact with anyone other than myself. I contacted them by sending them letters which is [sic] attached to the complaint. Only those clients who contacted me were transferred. I never once called any of them. Transfer letters were signed, and I made a copy of their monthly statements from January through April. Copies of the monthly income and expense statements were made by me. The reason I made these [was] to make sure that at the end of the year, I had their end-of-the-year reports that were normally sent out. I knew that Brian did not know how to do these reports since he had never participated in the last three years. The harm of having me make these reports, I felt, was none. It only saved clients, Brian and myself [sic] of making the copies later. I did not do this for any secretive stab in the back but to save the embarrassment of Brian not knowing where to find the files or what copies to make.

¶ 4. According to McPhail, Anding spent the month of April soliciting Colonial Realty's accounts. He provided no specific details. Admittedly, Anding notified clients that she was leaving Colonial Realty. An undated letter included in the record, apparently that which Anding sent to all of her clients, stated only:

I am writing this letter to inform you that as of April 30, 1996, I will no longer be licensed with Colonial Realty, Property Management Department. I will be associated with Bethea Properties. I am going to be in Rental Property Management. I will be using the same management system that I began 3 years ago. I will have Lisa Bethea as an assistant and John Bethea as my broker. They are both long time residents of the Hattiesburg area. If I can be of any help to you now or in the future please feel free to call me at home 264-2230.

¶ 5. McPhail filed a complaint with the Mississippi Real Estate Commission on August 21, 1996. He charged that in April, 1996, Anding solicited new rental accounts on behalf of Bethea Properties while still affiliated with Colonial Realty; citing the above-quoted letter, claimed that she induced clients to breach their contracts with Colonial; and further, that she removed files from the office, all without his knowledge or consent.

¶ 6. Anding received written notice from the Commission of McPhail's complaint on August 22, 1996. She responded in an August 30, 1996 letter to the Commission, attaching letters of reference and information about the accounts brought into question by McPhail's complaint. Further, she stated that any records in her possession were duplicates of those at Colonial Realty and assigned to her by clients, whose authorizations were attached to the response. In closing, she stated, "There is much more to this story, however I feel that my success is being tampered with by jealousy, instead of appreciation." The Commission, acting upon a sworn statement of complaint from Brian McPhail, the responsible broker with whom Anding had been associated at Colonial Realty in Hattiesburg, Mississippi, filed a complaint against Anding on December 10, 1996. The complaint alleged that Anding had sent letters to property owners whose rental properties were managed by Colonial Realty, advising them that she was moving to another firm, Bethea Properties. It further stated that she was issued a new salesperson's license to be affiliated with John J. Bethea, Jr., and when inquiry was made by the Commission, allegedly characterized herself as an independent contractor and admitted that she had taken duplicates of records with her when she left Colonial Realty. Based on these allegations, the Commission charged that Anding violated the Mississippi Real Estate Broker's License Act of 1954, as amended, as well as Rule IV.A.6 of the Rules and Regulations.¹

¶ 7. In its two-page finding of facts, the Commission briefly outlined Anding's duties at Colonial Realty and reiterated the allegations raised in the complaint that she "solicited those owners listed with Colonial Realty for the purpose of inducing them to move their listings to her new place of employment" and "characterized herself as an independent contractor and admitted that she had taken records with her from Colonial Realty when she left to go to a new broker but claimed that those records were duplicates, not the originals." The Commission's findings, in their entirety, are taken verbatim from paragraphs I and II of its Amended Complaint. The Commission's conclusions of law are a verbatim recitation of paragraph III of the Amended Complaint, stating that Anding's actions violated Miss.Code Ann. §§ 73-35-3(4) and 73-35-21(k) and (m), as well as Rule IV.A.6 of its Rules and Regulations. Based on these "Findings of Fact" and "Conclusions of Law," the Commission disciplined Anding by revoking her license for one year to be held in abeyance subject to her not holding the position of responsible broker for a period of two years and within one year, completing eight hours of continuing education, four hours of which is license law, in addition to those hours already required by law. She was permitted to continue her real estate brokerage activities subject to those conditions.

¶ 8. Anding appealed the Commission's ruling to the Circuit Court of Lamar County on February 20, 1997. The Commission responded with a motion to dismiss, which was denied by the circuit court on April 10, 1997. The Commission again filed a motion to dismiss on June 26, 1997, citing Anding's failure to timely file her brief in the case. Because the Circuit Clerk had not notified Anding of the deficiency, the motion was denied.

¶ 9. The circuit court found that the record did not support the Commission's finding that Anding induced any clients to break contracts with Colonial Realty or wrongfully transferred any files which contained "pertinent information," which could rise to the level of "bad faith, incompetency or untrustworthiness," dishonesty, fraud or improper dealing. Thus, finding that the Commission's findings of fact and conclusions of law were not supported by substantial evidence, the circuit court reversed the decision of the Commission by order dated October 27, 1997.

II.

¶ 10. The Commission asserts that its order is supported by substantial evidence in the record, warranting a reversal of the circuit court's decision and a reinstatement of the agency action disciplining Anding. Anding asserts that the record is bereft of any clear and convincing evidence that she acted in violation of the Mississippi Real Estate Brokers License Act. We note that the Commission's Findings of Facts and Conclusions of Law, sections II and III of the order, are taken in their entirety, verbatim, from paragraphs I, II and III of the Commission's Amended Complaint against Anding. Although we generally...