Farriss v. Miss. Real Estate Comm'n
| Docket Number: | 2007-CC-00331-COA Linked Case(s): 2007-CC-00331-COA ; 2007-CT-00331-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 05-20-2008 Opinion Author: KING, C.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Revocation of real estate licenses - Heightened scrutiny - Improper dealing - Section 73-35-21 Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
|
| Trial Court: |
Date of Trial Judgment: 01-23-2007 Appealed from: DeSoto County Circuit Court Judge: Robert P. Chamberlin Disposition: AFFIRMED THE DECISION OF THE MISSISSIPPI REAL ESTATE COMMISSION REVOKING APPELLANT'S REAL ESTATE LICENSES. Case Number: CV2004-0108CD |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | THOMAS WOODROW FARRIS, SR. AND
CHARLOTTE J. KELLY |
JOHN D. WATSON,
WILLIAM F. TRAVIS |
||
| Appellee: | MISSISSIPPI REAL ESTATE COMMISSION | JOHN L. MAXEY, PAUL H. KIMBLE |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Revocation of real estate licenses - Heightened scrutiny - Improper dealing - Section 73-35-21 |
| Summary of the Facts: | The Mississippi Real Estate Commission filed a complaint against Thomas Farris, Sr. and Charles and Charlotte Kelly. 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. 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. 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. The circuit court affirmed the Commission’s order. Farris and Charlotte Kelly appeal. |
| Summary of Opinion Analysis: | Farris and Kelly argue that the appellate 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. Heightened scrutiny may apply where the Commission adopts its own allegations as findings and conclusions. Although the Commission’s order is very similar to its complaint against Farris and Kelly, 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. Accordingly, this case does not require heightened review. Farris and Kelly argue that the Commission’s revocation of their licenses was arbitrary and capricious because there is no evidence that they intended to defraud or misrepresent to anyone that Farris Realty was the broker involved in the transaction. There is no evidence that Farris and Kelly intended to defraud or misrepresent facts to buyers or sellers; however, there is substantial evidence in the record that they engaged in improper dealing. Their unsuitable practices are not in accordance with correct procedure for real estate practice in Mississippi and are punishable under section 73-35-21(1)(m). Farris argues that the circuit court erred when it affirmed the Commission’s ruling that he failed to properly instruct and supervise the Kellys because the Commission unreasonably failed to take into account his illness and hospitalization as extenuating circumstances. If Farris properly supervised the Kellys, he would have known about the improper use of the Century 21 forms. Farris points to no authority that suggests the Commission must make exceptions for his failure to supervise the Kellys based on extenuating circumstances. Kelly argues that the circuit court erred when it affirmed the Commission’s ruling that she acted independently of Farris, her supervising broker, and performed real estate services without his full consent and knowledge. The evidence established that Kelly is listed as a selling agent in several of the transactions in question. Furthermore, in her brief, Kelly concedes that she “had a duty to refrain from acting independently of Appellant Farris and to refrain from performing real estate services without Appellant Farris’s full consent and knowledge.” Like Farris, Kelly points to no authority that requires the Commission to make exceptions to the rule based on extenuating circumstances. Farris and Kelly argue that the circuit court erred when it affirmed the sanctions the Commission imposed upon them because the sanctions were disproportionate to the violations alleged. Section 73-35-21 gives the Commission power to revoke a license where the licensee is found guilty of improper dealing, among other things. In order to revoke the license of a real estate broker under a charge of bad faith, incompetency or untrustworthiness, or dishonest, fraudulent, or improper dealings, the proof need not be beyond a reasonable doubt, but the testimony must clearly establish the guilt of a respondent. The circuit court did not err when it affirmed the Commission’s imposition of sanctions |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
