Miss. Real Estate Appraiser Licensing & Certification Bd. V. Schroeder
| Docket Number: | 2005-CC-01600-COA Linked Case(s): 2005-CC-01600-COA2005-CT-01600-SCT |
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| Oral Argument: | 01-24-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-19-2007 Opinion Author: BARNES, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Real estate licensure - Substantial evidence - Power of Board - Section 73-34-7 - Conflict of interest - Plain error - M.R.A.P. 28(a)(3) Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Dissenting Author : MYERS, P.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 02-23-2005 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: CIRCUIT COURT REVERSED ORDERS OF BOARD Case Number: A2402-2002-0200 |
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| Party Name: | Attorney Name: | |||
| Appellant: | MISSISSIPPI REAL ESTATE APPRAISER LICENSING AND CERTIFICATION BOARD |
MAUDINE G. ECKFORD |
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| Appellee: | J. DANIEL SCHROEDER | TINA ROSE SINGLETARY BRITT R. SINGLETARY SCOTT DERRICK SMITH |
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| Topic: | Real estate licensure - Substantial evidence - Power of Board - Section 73-34-7 - Conflict of interest - Plain error - M.R.A.P. 28(a)(3) |
| Summary of the Facts: | The Mississippi Real Estate Appraiser Licensing and Certification Board found that J. Daniel Schroeder had violated several provisions of the Uniform Standards of Professional Appraisal Practice in preparing two appraisal reports. For the violations contained in one appraisal, the Board ordered Schroeder to complete fifteen hours of USPAP course work, placed him on probation for two years from the date the ordered course work is successfully completed, and directed that the disciplinary action be published in the Board’s newsletter. Schroeder received identical disciplinary action for the violations contained in the other appraisal, except for a differing probationary term of six months. Schroeder appealed both decisions to circuit court which reversed both orders of the Board. The Board appeals. |
| Summary of Opinion Analysis: | Issue 1: Substantial evidence Schroeder argues that the Board did not consider all of his documents. Schroeder had numerous opportunities to ensure that all materials contained in the original appraisal report submitted to his client were before the Board. Specifically, the Board allowed Schroeder to submit documents at numerous times: when the complaint was first filed, with his written responses, and at the administrative hearing. Moreover, when Schroeder raised for the first time at the hearing that the Board did not have before it a complete copy of the original appraisal report, the Board asked Schroeder to provide a copy of the original report. He stated he could not, as it had been taken apart to provide exhibits. Ultimately, however, these three documents were entered into evidence at the hearing and considered by the Board. Accordingly, the record does not support his position. He also argues that the Board’s findings were articulated in conditional language and thus not based on substantial evidence. The statements in the Board’s order are not conditional and are based on substantial evidence in the record. Schroeder argues that the violations were merely minor, and any missing information which could have constituted a violation was reported to his clients orally, and his clients were not interviewed by the Board. There are certain matters which must be in an appraisal report according to the USPAP, and simply communicating those matters orally to the client will not suffice. The Board’s order found a total of eleven violations in one appraisal and two violations in the other appraisal. It matters not if they were severe or minor violations. The conditional language in the Board’s orders was the only stated reason the circuit court found the findings of the Board not supported by the evidence. Because the violations in the reports as found by the Board are straightforward and fully supported by substantial evidence in the record, the judgment of the Board is reinstated. Issue 2: Power of Board Schroeder argues that the actions of the Board were outside its scope or power since the Board was in violation of section 73-34-7(b) and © which, prior to July 2004, stated that not more than two positions on the board shall be filled with appointees who hold membership in the same professional organization. It is undisputed that all of the Board members, at the time of the hearings, had been duly appointed by the governor of the State of Mississippi, thereby making them public officials. Therefore, pursuant to section 27-1-37, the members of the Board, even if serving in violation of section 73-34-7(b) and ©, would still have valid authority to act in official capacity as de facto officers. Issue 3: Conflict of interest Schroeder argues as plain error under M.R.A.P. 28(a)(3) that the manner in which the Board investigated, charged and adjudicated the claims against him created a conflict of interest. The investigating Board member reviewed both complaints against Schroeder and then submitted the case to someone else to conduct the actual investigation. Upon receipt of findings by the investigator, the member reviewed those results and, based on his review, submitted a recommendation to the Board for a formal hearing. His role was merely to indicate the need for other Board members to review the potential violations in a formal hearing. During the hearings, this member did not participate in the deliberation and adjudication. Thus, there is no evidence of bias or evidence of misconduct in the actions of the Board and there was no conflict of interest in the Board’s investigation and adjudication process. |
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