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McIntosh v. Mississippi Real Estate Commission

Supreme Court of Mississippi, En Banc

May 25, 2017

RITA BREECE McINTOSH
v.
MISSISSIPPI REAL ESTATE COMMISSION

          DATE OF JUDGMENT: 06/11/2015

         RANKIN COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER

          ATTORNEYS FOR APPELLANT: K. F. BOACKLE JOE S. DEATON, III RICHARD JASON CANTERBURY

          ATTORNEYS FOR APPELLEE: WILLIAM HOLCOMB HUSSEY JOHN L. MAXEY, II

          BEAM, JUSTICE

         ¶1. Rita McIntosh appeals from the Rankin County Circuit Court's judgment affirming the Mississippi Real Estate Commission's disciplinary order against McIntosh, finding that McIntosh had engaged in "improper dealing." According to the order, McIntosh, as exclusive agent of the seller, interjected herself into the lender's appraiser selection process and then tried to keep the selected appraiser from completing the appraisal assignment. The Commission imposed a ninety-day suspension, plus a thirty-day suspension held in abeyance, along with eight months' probation and continuing education courses.

         ¶2. Because we find that McIntosh's alleged conduct did not constitute improper dealing as contemplated by the Mississippi Real Estate Brokers License Act, we reverse the circuit court's judgment and render judgment in favor of McIntosh.

         FACTS

         ¶3. McIntosh holds a real estate broker's license issued by the Commission pursuant to Mississippi Code Section 73-35-1 to 73-35-35. In December 2013, McIntosh executed an exclusive listing agreement for the sale of a home located in Pearl, Mississippi. The sellers wanted to list the property for $134, 000; but McIntosh suggested a $126, 300 listing price, based on her calculations of the sale prices per square foot in the area.

         ¶4. A prospective buyer expressed interest in the property through the buyer's real estate agent, Deborah Hines. Hines informed McIntosh on or about January 18 or 19, 2014, that the prospective buyer wanted to make an offer of the listing price of $126, 300.

         ¶5. That same day, McIntosh asked Hines what lender the buyer had chosen for mortgage financing. Hines told McIntosh, Red Rock Mortgage. McIntosh expressed concern about Red Rock, having had a difficult time getting Red Rock to the closing table in the past. Hines reassured McIntosh she had done numerous transactions with Red Rock and its loan processor, April Lowery.[1] McIntosh then requested Hines to advise Red Rock not to use Logan Long as an appraiser for the Pearl property. McIntosh said her agency had a history of at least seven Federal Housing Administration (FHA) appraisals coming in below the sales price due to Long. To McIntosh's knowledge, Long was the only appraiser with whom they had these issues. Hines declined McIntosh's request but provided McIntosh with Lowery's contact information at Red Rock.

         ¶6. The next day, the seller accepted the buyer's offer. That same day, McIntosh sent an email to Lowery, copying buyer's agent Hines, which stated:

I have no problem with any knowledgeable and qualified FHA appraiser; however we have had some real seemingly unfair experiences with an appraiser, Logan Long. I hope that he is not on your list and if there is a way to opt out if he should be selected. We have a history of at least 7 FHA appraisals that have come in below sales price by Mr. Long. To my knowledge, he is the only appraiser that we have had these consistent and on going issues with.

         ¶7. Hines replied: "I don't know this guy [and you] know we can't pick [an] Appraiser. . . ." To which McIntosh responded: "I know, I am just hoping he is not on the Red Rock list. We had another sale bite the dust last week in Bainbridge and he was the FHA appraiser."

         ¶8. Lowery responded to McIntosh by email: "We do not choose the appraiser, the FHA Appraisal Management company chooses.[2] Logan Long is in their rotation list. I hope we don't have any appraisal issues."

         ¶9. On February 3, 2014, McIntosh learned Long had been engaged by the buyer's lender to appraise the subject property. McIntosh received a text message from Long at approximately 3:15 p.m. that afternoon, requesting information regarding access to the property for appraisal inspection. McIntosh replied to Long's text: "Hold up Logan I will get back to [you]." McIntosh did not get back to him.

         ¶10. Minutes after learning Long was the appraiser for her client's property, McIntosh communicated with Hines and included a copy of Logan's text she had just received: "Look at this . . . . It's that appraiser that [has] killed every one [of the] sales every time. Please ask [Lowery at Red Rock] if there is any way we can pass on him. Anyone but him."

         ¶11. Hines replied: "You will have to call [Lowery]. I can't request any Appraisal Person. The value is in the house so [hopefully] we won't have any problems."

         ¶12. McIntosh responded to Hines: "[You] don't know him. Spiteful."

         ¶13. The next day, on February 4, Long texted McIntosh again, requesting access to the property. Long asked if there was any news on the property and explained that the appraisal was due two days later, on February 6. McIntosh did not respond to Long's second request.

         ¶14. Shortly after receiving Long's second text, McIntosh communicated with Hines and included a copy of Long's second text.

         ¶15. Long later testified that he was required to update the status of his appraisal assignment through an online web portal. Long reported to Real Shield that he had received no reply from McIntosh regarding access to the property to complete his appraisal. Real Shield responded by online message and instructed Long: "It's got a key, MLS, vacant. Go anytime per agent." Long thereafter went and conducted the appraisal and turned it in to the lender.

         ¶16. Long appraised the value of the subject property at $117, 000, which was less than the contract price of $126, 300. Lowery communicated the ...


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