Brady v. State of Delaware Council on Real Estate Appraisers ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LILLIAS J. BRADY, )
)
Appellant, )
)
v. ) C.A. No. N15A-11-003 JAP
)
STATE OF DELAWARE )
COUNCIL ON REAL ESTATE )
APPRAISERS, )
)
Appellee. )
MEMORANDUM OPINION
This is an appeal from a decision of the Council of Real
Estate Appraisers disciplining Lillias Brady. The Hearing
Officer wrote an exhaustive 33 page Recommendation in which
he detailed several errors and omissions by Ms. Brady “some
of which could be viewed as misleading.” The Hearing Officer
recommended a 90 day suspension of Ms. Brady’s license
followed by a probationary period, a fine of $1000 and 18
hours of continuing education. Ms. Brady appealed to the
Council on Real Estate Appraisers. In her appeal she admitted
that “mistakes were made” and conceded that discipline was
in order. She begged the Council not to suspend her license
because real estate appraising is her only source of income. In
a display of lenity the Council chose not to suspend her
license, but increased the recommended fine to $3000. Ms.
Brady has appealed the Council’s decision to this court. It is
not entirely clear what she is arguing, but reduced to its
essence her argument seems to be the Council did not discuss
her sanction enough.
Some of Ms. Brady’s problems stem from her appraisal of
a Crown Carriage end unit model at Sea Colony development.
When she appraised that property at $435,000, a loan officer
considered her appraisal to be inconsistent and asked Ms.
Brady’s employer that it be redone. The employer responded
that Ms. Brady had reviewed the documentation supporting
her appraisal and found no change was warranted. Another
appraiser was called upon to appraise the property which he
valued at $618,000.
Ms. Brady’s appraisal of the Sea Colony unit was filled
with errors. For example, she concluded the unit had 3.0
bathrooms when publicly available information showed it had
2
3.1 bathrooms. The photographs in her report of the
comparables she used were not, in fact, photographs of those
comparables but were photographs of other condominiums.
She misstated the square footage of the condominium and
used different type condos for her comparables. In doing so
she ignored recent sales of similar condominiums where the
purchase price was considerably higher than the comparables
she used.
Another appraisal, this one of a double lot located on
Dover Street in Rehoboth, was also the subject of the
disciplinary action against her. She admitted that this
appraisal was “somewhat flawed” and “could have been
deemed misleading.” She told the Hearing Officer that this
appraisal was “not truly representative of the overall quality
and thoroughness” of her reports.
The evidence supporting Ms. Brady’s errors was largely, if
not entirely, uncontested. Much of the evidence before the
Hearing Officer took the form of stipulated facts, and at the
hearing Ms. Brady’s counsel acknowledged that “several
mistakes were made here.”
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The precise nature of Ms. Brady’s arguments before this
court is unclear. The caption to her argument in her Opening
Brief is “The Board’s Decision is not Supported by Substantial
Evidence and Committed [sic.] Errors of Law,” yet in her Reply
Brief she writes “[t]o be clear, there is no dispute with the
factual findings by the Hearing Officer.” As best the court can
tell, her argument seems to be that the Board did not
articulate specific reasons for the punishment it imposed. She
argues in one portion of her brief that “there was no
substantive deliberation on any aspect of the case, mitigating
factors, comparison to other cases and discipline meted out for
example.”
Ms. Brady points to no statutory or regulatory
requirement that the Council actually discuss during
deliberations “mitigating factors, comparison to other cases
and discipline meted out.” Indeed, it is not practicable to
require discussion and consideration of specific topics by
administrative boards. “[W]here the discretion to be exercised
relates to police regulation for the protection of public morals,
health, safety, or general welfare, and it is impracticable, to fix
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standards without destroying the flexibility necessary to
enable the administrative officials to carry out the legislative
will, the legislation delegating such discretion without such
restrictions may be valid.”1 Rather the test here is whether the
Council abused its discretion. “An agency abuses its
discretion only where its decision exceeds the bounds of
reason in view of the circumstances.”2 Ms. Brady has failed to
show that to be the case here.3
Ms. Brady points to the fact that the Council’s order is
signed only by the Council President and asserts, in a single
sentence in her brief, that “the law further requires that the
final order shall be authenticated by the signatures of at least
a quorum of all agency members, unless otherwise provided by
law.” She is mistaken. The APA provides in pertinent part:
When any professional licensing board or
commission governed by Title 23, 24, or 28, and
listed in § 10161(a) of this title reaches its
conclusions of law and determines an
appropriate disciplinary action, if any, the Board
or Commission shall issue a written decision
and order in accordance with this section.
However, notwithstanding the provisions of
1
Atlantis I Condominium Ass'n v. Bryson, 403 A.2d 711, 713 (Del. 1979) (quoting State v. Durham, 191
A.2d 646 (Del. Super. 1963)).
2
Cordero v. Gulfstream Development Corp., 256 A.3d 1030, 1034 (Del. 2012).
3
The Council had before it the Hearing Officer’s finding of mitigation factors such as the fact the appraisal
of the condominium was done as a “drive by” under tight time constraints.
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subsection (c) of this section, the decision and
order may be issued over the signature of only
the President or other officer of the Board.4
The decision of the Council on Real Estate Appraisers is
therefore AFFIRMED.
______________________________
John A. Parkins, Jr.
June 21, 2016 Judge
oc: Prothonotary
cc: Donald L. Gouge, Jr., Donald L. Gouge, Jr., LLC,
Wilmington, Delaware
Stacey X. Stewart, DAG, Department of Justice,
Wilmington, Delaware
4
29 Del. C. §10128(g). The Council on Real Estate Appraisers is one of the agencies listed in 29 Del. C.
§ 10161(a), and therefore its orders may be signed by its president.
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