Opinion
No. 52589.
July 29, 1981. Rehearing Denied September 2, 1981.
Appeal from the Circuit Court, Hinds County, William F. Coleman, J.
Affirmed.
Lee, J., dissented with an opinion in which Smith, P.J., Bowling and Hawkins, JJ., joined.
Michael J. Malouf, Malouf Malouf, Jackson, for appellant.
Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
This is an appeal from the Circuit Court of the Second Judicial District of Hinds County, Mississippi, which affirmed the conviction of George M. Mitchell by the County Court for acting as a real estate broker without a license. We affirm.
Mississippi Code Annotated section 73-35-1 (1972), makes it unlawful ". . . for any person, partnership, association or corporation to engage in or carry on, directly or indirectly, or to advertise or to hold himself, itself, or themselves out as engaging in or carrying on, the business, or act in the capacity of, a real estate broker, or a real estate salesman, within this state, without first obtaining a license as a real estate broker or real estate salesman as provided for in this chapter."
Acts which constitute doing business as a real estate broker are found in Mississippi Code Annotated section 73-35-3 (1972), which provides, in part, as follows:
(a) The term "real estate broker" within the meaning of this chapter, shall include all persons, partnerships, associations and corporations, foreign and domestic, who for a fee, commission, or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, lists, sells, purchases, exchanges, rents, leases, appraises, or auctions any real estate, or the improvements thereon including options, or who negotiates or attempts to negotiate any such activity; or who advertises or holds himself, itself or themselves, out as engaged in such activities; or who directs or assists in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction; . . . .
The appellant, in effect, contends that the verdict is against the overwhelming weight of the evidence.
On appeal, the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to support the verdict. Murphree v. State, 228 So.2d 599 (Miss. 1969), cert. denied, 397 U.S. 1068, 90 S.Ct. 1509, 25 L.Ed.2d 690.
With that rule in mind, the evidence for the state showed that in 1977 the appellant, George M. Mitchell, approached Richard Kimbrough, President of Kimbrough Investment Company at Kimbrough's home office located in Jackson, Hinds County, Mississippi, after learning that they were interested in selling the Sheraton-Biloxi Motor Inn owned by the Kimbrough interest. Mr. Kimbrough testified that Mitchell ". . . told me he could sell the hotel and that he was going over in the Middle East and he had a lot of connections over there in Kuwait and Egypt and that sort of thing. I had written embassies of Iran and Iraq and all of them, but I hadn't gotten any interest. But George was pretty convincing that he knew the sheiks and that he could sell the hotel and get what we wanted. So that's when it started, in early '77."
On one occasion during the discussions, Kimbrough told Mitchell that he thought that the deal was too large for him to handle, whereupon Mitchell replied, "You don't know what I can sell. . . . I've sold apartments, stores and other things."
When asked if a fee or commission was ever discussed with George Mitchell, Kimbrough replied:
Yes, sir, it was. It was discussed orally and written in these letters. (sic) I referred to that we would pay a two per cent commission. . . .
Thereafter, after numerous meetings between Mr. Kimbrough and Mr. Mitchell and a number of letters from Mr. Kimbrough to Mr. Mitchell, Mr. Kimbrough personally handed Mr. Mitchell the following letter while in Mr. Kimbrough's office in Jackson. That letter reads as follows:
"January 5, 1979
Mr. George Mitchell MGM Company Vicksburg, Mississippi
Dear George:
We are willing to pay a maximum Real Estate commission of 2% on the sale price of $6,000,000 on the Sheraton-Biloxi Motor Inn, provided it is a straight total cash, net to us and provided we do not have to do the selling and negotiating ourselves.
In the event the offer is for less, or we are required to enter into the sales work, we will negotiate our commission downward. Also, you have permission to show and sell this property on the above terms for only 30 days from today. After this date do not attempt any further sales efforts as we are withdrawing our listing. This is an open, 30 day listing, not exclusive, subject to prior sale.
Very truly yours,
KIMBROUGH INVESTMENT COMPANY
Owners and Operators of The Sheraton-Biloxi Motor Inn Richard H. Kimbrough President and Chief Executive Officer"
Kimbrough also gave Mr. Mitchell a letter outlining the terms and conditions on which the Kimbroughs would sell the Sheraton-Biloxi Hotel.
On cross-examination, Mr. Kimbrough was asked whether Mitchell had ever mentioned buying the property as a principal or with someone or whether he was trying to sell it strictly as a real estate broker, to which Mr. Kimbrough replied: ". . . Well, both. One time he was talking about sheiks from over in the Far East, and then another time he was talking about he could sell it to oil people or contacts that he had made. So I really didn't know what he was talking about. And that is the truth. He had me so confused I didn't know what he talked about from time to time."
After considerable discussions and correspondence between Kimbrough and Mr. Mitchell, and after Kimbrough gave Mr. Mitchell a letter listing the property, Mr. Mitchell contacted Mr. John R. Neyrey who was President of Production Oil Corporation with offices in Biloxi. Mr. Neyrey testified Mr. Mitchell's initial statement to him was ". . . that he had an exclusive listing on the property as well as an exclusive option [to purchase] the hotel." Mr. Neyrey testified that Mr. Mitchell claimed that he had an option to purchase the hotel but they could not come to terms, and that Mitchell ". . . indicated to me that he had an exclusive listing on the property also and that he could deliver the property to us for a price of four million seven hundred and fifty thousand dollars, plus his commission." When asked whether there was any discussion by Mitchell concerning a commission, Neyrey testified: "Well, he indicated that he had this exclusive option and, of course, we didn't talk about commissions up front. . . . At some later date beyond the initial meeting a six per cent commission was discussed and negotiated." Neyrey further testified that several days later he ". . . informed Mr. Mitchell that I wanted to negotiate directly with Mr. Kimbrough rather than have to go back and forth through him because I wanted to move relatively fast. Once we made up our minds to consider the property we wanted it done very quickly, and he did not have all the answers or information concerning the property. So I wanted to negotiate directly with Kimbrough and get Mr. Mitchell to accept a release based upon a guarantee that he would get his commission."
Thereafter, Mitchell executed a release allowing Mr. Neyrey and Mr. Kimbrough to deal directly with each other. The release was dated January 25, 1979, and was signed by George Mitchell, John R. Neyrey and Production Oil Corporation. The release provided, in part, as follows:
WHEREAS, party of the first part has a certain understanding and agreement with the present owners of the Biloxi Sheraton Hotel located within the City of Biloxi, Harrison County, State of Mississippi; and
WHEREAS, party of the first part, pursuant to the aforesaid contract and agreement with the owners of the Biloxi Sheraton Hotel, would otherwise be entitled to certain remunerations from said owners in the event of the sale of the said Biloxi Sheraton Hotel, . . .
The release also provided for a consideration of $175,000.00 to be paid by Neyrey to Mitchell if Neyrey purchased the Biloxi-Sheraton Hotel and authorized Neyrey to deal directly with the Kimbrough interest.
Mitchell did not testify in his behalf. His defense was that he never represented himself to be a real estate broker or salesman and that at the time he executed the release he made it clear that he was not a real estate broker or real estate salesman. As a part of his defense, Mitchell presented several witnesses who testified they had discussed the possibility of a group purchasing the hotel, including Mr. Mitchell as a principal. Mitchell also presented evidence that he had contacted a bank about the possibility of financing such a transaction. He argues strenuously that he had an interest in the hotel, presumably the unexclusive right to purchase it and that he was foregoing exercising that right in consideration of remuneration provided for in the contract with Mr. Neyrey.
The state presented evidence, and it is undisputed, that Mr. Mitchell was not a licensed real estate broker or real estate salesman in Mississippi.
We have carefully considered this record and find the evidence clearly supports the verdict of the jury that Mr. Mitchell was acting as a real estate broker without a license in that he requested from and accepted a letter granting him a listing, although not exclusive, for a period of thirty days to sell the hotel, and the evidence is clear that he was to receive a commission if he were successful in that endeavor. In so doing, Mr. Mitchell was in violation of Mississippi Code Annotated section 73-35-1, as defined in section 73-35-3(a) (1972) which provides, in part:
The term "real estate broker" within the meaning of this chapter, shall include all persons, . . . who for a fee, commission, . . . or who with the intention or expectation of receiving or collecting the same, lists, sells, . . . or who negotiates or attempts to negotiate such activity; . . . or who directs or assists in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction. . . .
The fact that Mr. Mitchell could have purchased the hotel on his own as a principal is immaterial and is not inconsistent with his also having obtained a listing from Kimbrough to sell the hotel to others. It is also no defense that Mr. Mitchell did not expressly represent himself to be a real estate broker or salesman since his dealings with Kimbrough and Neyrey with reference to the hotel were in violation of Section 73-35-1 as defined in Section 73-35-3(a). As is often said, "A rose by any other name" smells the same. In this instance, the fragrance was clearly that of real estate broker.
". . . That which we call a rose
By any other name would smell as sweet." Romeo and Juliet, i, iv.
The appellant's contention that venue was not proved in Hinds County is wholly without merit.
We are of the opinion that the verdict of the jury was fully supported by the evidence.
The judgment and sentence of the Circuit Court affirming the judgment and sentence of the County Court are affirmed.
AFFIRMED.
PATTERSON, C.J., ROBERTSON, P.J., and SUGG and BROOM, JJ., concur.
LEE, J., SMITH, P.J., and BOWLING and HAWKINS, JJ., dissent.
I dissent from the majority opinion for the reason that, in my view, the judgment of the county court was against the overwhelming weight of the evidence in that the charge was not proved beyond a reasonable doubt and the circuit court erred in affirming the judgment of the county court.
An affidavit was filed in the Hinds County Court on September 6, 1979, charging that appellant ". . . on or about January 5, 1979, did then and there wilfully and unlawfully, with the intention and expectation of receiving a valuable consideration therefor, act in the capacity of a real estate broker by obtaining a listing agreement with Richard H. Kimbrough and Kimbrough Investment Company of Jackson, Hinds County, Mississippi for the sale of certain Mississippi property owned by the said Kimbrough Investment Company, that property being the Biloxi Sheraton Hotel, located in Biloxi, Harrison County, Mississippi, and by negotiating and procuring, for a fee, John R. Neyrey as purchaser of the above mentioned property, intending such negotiations to result in a real estate transaction, all at a time when the said George M. Mitchell did not possess a Mississippi real estate license, contrary to Section 73-35-1, Mississippi Code of 1972, as amended, . . ."
The affidavit was based on Mississippi Code Annotated Section 73-35-1 (1972), as mentioned, which provides the following:
"This chapter shall be known, and may be cited, as `the Real Estate Brokers License Law of 1954;' and from and after May 6, 1954 it shall be unlawful for any person, partnership, association or corporation to engage in or carry on, directly or indirectly, or to advertise or to hold himself, itself, or themselves out as engaging in or carrying on, the business, or act in the capacity of, a real estate broker, or a real estate salesman, within this state, without first obtaining a license as a real estate broker or real estate salesman as provided for in this chapter."
Prior to January 5, 1979, appellant learned that Kimbrough Investment Company, owner of the Biloxi Sheraton Motor Inn, located in Biloxi, Mississippi, desired to sell said hotel. He contacted Richard H. Kimbrough, president of the company, and discussed the sale. Kimbrough indicated to Mitchell that the company did not wish to sell the property to anyone in Mississippi, since he was of the opinion that no such person was interested and financially able to purchase same. Appellant then stated that he planned to make a trip outside the continental United States and thought he could put together a group of people who could buy the hotel. As a result of these talks, on January 5, 1979, Kimbrough wrote appellant two (2) separate letters, the first indicating that Kimbrough Investment Company was willing to pay a real estate commission of two percent (2%) of the sale price of six million dollars ($6,000,000) on the Sheraton Biloxi Motor Inn provided it was a straight total cash net to the hotel and provided no selling and negotiating was required by Kimbrough. Portions of the second letter follow:
"We appreciate your interest in purchasing the Sheraton-Biloxi Motor Inn. However, as you can imagine, since we have placed this property on the market we have been besieged by all types of people offering all types of plans to complete the purchase of the Hotel. By far, the majority of the plans which have been outlined before us, boil down not to a genuine offer for purchase, but an offer to manage the Hotel. Since we are not interested in this type of arrangement, much of our time and the time of prospective purchasers or managers, can be saved by having this understood at the outset. Below I am outlining the qualifications for a prospective purchaser succinctly and plainly, so that there will be no misunderstanding. If you do not fit these qualifications, there is no need to discuss the matter further.
* * * * * *
If you feel you meet the above qualifications, please outline your plan to purchase in writing, based on a sales price of $6,000,000. Please give details as to how you intend financing to be arranged and give us complete details to evidence your ability to carry out your plan.
We will consider your plan as submitted and contact you if it is apparent you do meet our qualifications.
* * * * * *
I hope you meet the above qualifications and that we will be hearing from you shortly."
Subsequently, appellant contacted various people on the Mississippi Gulf Coast with the idea of forming a group of people who would raise the finances necessary to purchase the hotel. It is uncontradicted that he met with Mr. Edward McDonnell, who testified that appellant approached him with the idea of a group of investors purchasing the hotel and then reselling it, and that appellant never acted as a real estate broker. Appellant contacted Mr. John A. Dottley, Sr. of Vicksburg, who testified that appellant never approached him as a real estate salesman or realtor but only in an attempt to associate a group of people to purchase the hotel. Mr. Robert H. Holmes, Jr., president of the Central Bank of Mississippi in Brandon, testified that appellant discussed with him the possibility of getting together a group of persons to purchase the hotel for future resale, and that appellant never represented himself to be a real estate salesman but an investor who wanted to buy the property and resell it.
Mr. Edward McDonnell arranged for a meeting between appellant and Mr. John R. Neyrey, who was president of Production Oil Corporation and owner of the Royal D'Iberville Hotel in Biloxi. Neyrey was led by appellant to believe that he (appellant) held an option to buy the motor inn property, and Neyrey became interested in acquiring the option. However, according to Neyrey, he wanted to negotiate directly with Kimbrough Investment Company in order that the title and transfer instrument would have the backing and guarantee of that company rather than for him to acquire title through Mitchell, an individual. An agreement was entered into between Neyrey and appellant on the 25th day of January, 1979, wherein Neyrey agreed to pay to appellant the sum of one hundred seventy-five thousand dollars ($175,000) on his purchase of the Biloxi Sheraton Motor Inn, eighteen thousand dollars ($18,000) of said amount to be paid upon the execution of the contract and the balance upon consummation of the purchase of the property. Neyrey insisted that they appear before his attorney, who drew the contract after which it was executed by Neyrey and Mitchell. Pertinent parts of the contract follow:
Subsequently, Kimbrough sold the property to Neyrey who then declined to pay appellant the balance of one hundred fifty-seven thousand dollars ($157,000). Appellant sued Neyrey and Kimbrough for that balance, after which these criminal proceedings were brought.
"WHEREAS, party of the first part has a certain understanding and agreement with the present owners of the Biloxi Sheraton Hotel located within the City of Biloxi, Harrison County, State of Mississippi; and
WHEREAS, party of the first part, pursuant to the aforesaid contract and agreement with the owners of the Biloxi Sheraton Hotel, would otherwise be entitled to certain remunerations from said owners in the event of the sale of the said Biloxi Sheraton Hotel; and
WHEREAS, parties of the second part are desirous of negotiating directly with the owners of the said Biloxi Sheraton Hotel for the purchase of said hotel,
NOW THEREFORE, for and in consideration of the consideration flowing among, by, and between the parties hereto, it is hereby understood and agreed as follows, to-wit:
A. For and in consideration of the sum of One Hundred Seventy Five Thousand Dollars ($175,000.00), payment of said sum to be contingent upon the purchase of the said Biloxi Sheraton Hotel by parties of the second part, or either of them, party of the first part hereby agrees to abandon, forego, and hold for naught any other agreements, understandings, or contracts, whether verbal or written he may have with any other person regarding any remuneration whatsoever which might have otherwise been due him regarding the sale of the said Biloxi Sheraton Hotel.
B. Party of the second part hereby acknowledges receipt of the sum of Eighteen Thousand Dollars ($18,000.00) cash in hand paid as partial consideration for this agreement, and to apply against the sum of One Hundred Seventy Five Thousand Dollars ($175,000.00) which will be due him from parties of the second part should parties of the second part purchase the aforesaid Biloxi Sheraton Hotel. Should parties of the second part, or either of them, fail to consummate a purchase of the Biloxi Sheraton Hotel from its present owners, then said sum of Eighteen Thousand Dollars ($18,000.00) shall be forfeited by parties of the second part to party of the first part.
C. Party of the first part hereby agrees to hold harmless any and all persons, including the present owners of the Biloxi Sheraton Hotel, from any and all liability of any kind whatsoever including, but not limited to, any remuneration due him under the aforementioned contract or agreement with the present owners of the Biloxi Sheraton Hotel which might otherwise have been due to party of the first part as a result of the purchase of the said Biloxi Sheraton Hotel by parties of the second part, or either of them.
D. Party of the first part hereby authorizes and empowers parties of the second part, or either of them, to negotiate directly with the owners of the Biloxi Sheraton Hotel, and to do any and all things necessary to effectuate a purchase of the said Biloxi Sheraton Hotel directly from its present owners, with no further liability to party of the first part of any kind whatsoever."
Mr. Neyrey testified with reference to the contract:
"A. We agreed on a remuneration or consideration of One Hundred Seventy Five Thousand Dollars ($175,000).
Q. Who signed that contract?
A. It was drawn by my attorney, Clyde Hurlbert of Biloxi. Mr. Mitchell and I appeared before Mr. Hurlbert and told him of the arrangements that we had reached regarding the sale, and based on our giving him that information he drew the draft of this contract.
Q. Ok. The contract as it was finally signed, is that the way it was originally worded?
A. No sir. The contract initially contained a specific reference to a broker or agent's representation by Mr. Mitchell.
Q. All right. And why was that deleted?
A. At the time we presented the information to Mr. Hurlbert, Mr. Mitchell told him, `I am not an agent or a broker. I am selling you my right to the property, my exclusive option to purchase the property for which Mr. Kimbrough has guaranteed me a remuneration or a commission'."
I am of the opinion that the evidence in this case does not support the charge in the affidavit, that the judgment of conviction is contrary to the overwhelming weight of the evidence, and that it should be reversed and the appellant discharged. Gray v. State, 387 So.2d 101 (Miss. 1980); Moody v. State, 371 So.2d 408 (Miss. 1979).
SMITH, P.J., and BOWLING and HAWKINS, JJ., join in this dissent.