OF JUDGMENT: 06/11/2015
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,
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.
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 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.
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.
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. 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
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.
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."
Lowery responded to McIntosh by email: "We do not choose
the appraiser, the FHA Appraisal Management company
chooses. Logan Long is in their rotation list. I
hope we don't have any appraisal issues."
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.
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."
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."
McIntosh responded to Hines: "[You] don't know him.
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.
Shortly after receiving Long's second text, McIntosh
communicated with Hines and included a copy of Long's
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.
Long appraised the value of the subject property at $117,
000, which was less than the contract price of $126, 300.
Lowery communicated the ...