Before Prather, C.j., McRAE And Waller, JJ.
The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 10/27/97
TRIAL JUDGE: HON. R.I. PRICHARD, III
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
¶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.
¶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 ...