Morf v. North Cent. Miss. Bd. Of Realtors, Inc.
| Docket Number: | 2007-CA-00839-COA Linked Case(s): 2007-CA-00839-COA ; 2007-CT-00839-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-01-2009 Opinion Author: IRVING, J. Holding: REVERSED AND REMANDED - 7/22/2008 ; MOTION FOR REHEARING FILED: 08/08/2008 - DENIED; REVERSED AND REMANDED - 12/01/2009 |
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| Additional Case Information: |
Topic: Real estate license - Involuntary dismissal - M.R.C.P. 41(b) - Sanctions Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): MAXWELL, J. Procedural History: Directed Verdict; Dismissal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 04-17-2007 Appealed from: Lafayette County Chancery Court Judge: Glenn Alderson Disposition: GRANTED MOTION FOR DIRECTED VERDICT, THEREBY DISMISSING PLAINTIFFS’ CASE WITH PREJUDICE Case Number: 2006-586 |
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| Note: | The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Chancery Court of Lafayette County is reversed, and this case is remanded for further proceedings consistent with this opinion. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DUFFY MORF, BROKER, AND KAREN
PRESTON MORF, SALESPERSON |
LISA A. REPPETO,
JOE M. DAVIS,
BRYAN P. BUCKLEY |
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| Appellee: | NORTH CENTRAL MISSISSIPPI BOARD OF REALTORS, INC., BOARD OF DIRECTORS | NICHOLAS S. BROWN, CARTER C. HITT | ||
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. |
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| Topic: | Real estate license - Involuntary dismissal - M.R.C.P. 41(b) - Sanctions |
| Summary of the Facts: | Duffy Morf and Karen Preston-Morf filed suit against the North Central Mississippi Board of Realtors, Inc. Duffy is the broker for a real estate office in Oxford, and Karen is a realtor in the same office. The Morfs’ suit was filed in an effort to challenge sanctions levied against them by the Board. The court found in favor of the Board and dismissed the Morfs’ suit with prejudice. The Morfs appeal. |
| Summary of Opinion Analysis: | The Morfs argue that the court erred in granting the Board’s motion for a directed verdict and in applying the law with regard to the Board’s failure to adhere to its own regulations and bylaws. In May 2005, the Morfs were charged with improperly extending an MLS listing without the consent of the owner in violation of the Board’s rules. In May 2006, the Morfs were again charged with violating the Board’s rules. Karen was accused of entering two properties into the MLS when she was not authorized by the seller to do so, and Duffy was again charged with failing to properly supervise Karen. For failing to properly supervise Karen, Duffy was assessed a fine of fifteen hundred dollars and given a forty-five-day suspension from the MLS. Duffy was also required to attend a mandatory orientation session. Karen was expelled from membership with the Board for one year and assessed a five-thousand-dollar fine. Although the Board moved for a directed verdict, the Board should have moved for an involuntary dismissal under M.R.C.P. 41(b). The record shows that the Board acted arbitrarily in punishing the Morfs, because the Board did not act in accordance with its own rules in disciplining the Morfs. The Board’s own documents make it difficult to tell which punishments are to be imposed for which violations. The major dispute in this case concerns two essential issues: whether section seven of the Rules and Regulations applies to the Morfs’ conduct, and if not, whether the sanctions imposed are consistent with the punishment allowed by all of the Board’s governing documents. Although section seven is poorly written, inasmuch as it states that the list of violations is not exclusive and then claims that every other violation is to be considered under section nine, the violations listed are of substantially less import than the violations with which the Morfs were charged. Notably, neither the Morfs’ specific violations nor anything similar were given in the list in section seven. Therefore, the Morfs should have been aware that their conduct would fall under section nine. The punishment inflicted on the Morfs was within the limits prescribed by section nine. However, simply because discipline fits within the possible limits does not mean that the punishment was imposed fairly and reasonably. The specific violation that Karen was charged with is clearly delineated in the Code of Ethics and Arbitration Manual which is considered a part of the governing rules of the Board. Therefore, the Code should govern the sanctions received by the Morfs. Under the Code, Karen’s five thousand-dollar fine and expulsion are some of the most severe penalties that can be levied against a member for any violation. Several aspects of the Code should have been taken into consideration in crafting discipline for the Morfs. First, there is nothing to indicate that the misconduct in this case was intentional or willful. Therefore, according to these guidelines, the discipline inflicted on the Morfs should have been limited to penalties intended to educate them as to their mistake. Furthermore, there is no evidence that the Morfs ever attempted to conceal or ever refused to acknowledge the mistake made by their assistant. Therefore, the Morfs’ candid admission of wrongdoing should have operated as a mitigating circumstance. Finally, the Morfs claimed, without contradiction, that they immediately attempted to remedy the situation by having the improper listings removed as soon as they were discovered. This also should have operated as a mitigating factor. The Board’s representative admitted that no harm was caused to anyone other than the Morfs as a result of the improper listing. Even more telling is a look at some of the other discipline imposed by the Board in question. Several actual cases were presented as evidence at trial. In none of the cases did the individuals receive discipline as harsh as the discipline received by the Morfs. Therefore, the Board acted arbitrarily and capriciously in disciplining the Morfs. |
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