Singer v. Davids

[Cite as Singer v. Davids, 2011-Ohio-4434.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAN R. SINGER : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-55
KELLY DAVIDS, SUPERINTENDENT :
OF THE OHIO DIVISION OF REAL :
ESTATE AND PROFESSIONAL
LICENSING
:
Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas Case No. 09-CV-940
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 25, 2011
APPEARANCES:
For Appellant: For Appellee:
RAY R. MICHALSKI 0015793 CHERYL R. HAWKINSON 0055429
Dagger, Johnston, Miller, Ogilvie & Assistant Attorney General
Hampson, LLP 30 E. Broad St., 26th Fl.
144 E. Main St. Columbus, Ohio 43215
P.O. Box 667
Lancaster, Ohio 43130
Delaney, J.
{¶1} Appellant Dan R. Singer, Ohio Certified General Real Estate Appraiser
Number 0000382990, appeals from the judgment of the Fairfield County Court of
Common Pleas, affirming the Order of the Ohio Division of Real Estate and Professional
Licensing finding that Appellant failed to follow appropriate standards in conducting a
real estate appraisal.
{¶2} The procedural and factual history of this case is as follows:
{¶3} This matter came before the Fairfield County Court of Common Pleas
based on Appellant’s appeal from a June 26, 2009, Adjudication Order of the Ohio Real
Estate Appraise Board (“Board”), finding that Appellant violated R.C. 4763.11(G)(4),
(G)(5), and (G)(6). Specifically, the Board adopted a Hearing Officer’s report that found
that Appellant plagiarized portions of a previous real estate appraisal report completed
by another appraiser. The Board imposed a $2,500 civil penalty, imposed additional
educational requirements and suspended Appellant’s license for 120 days.
{¶4} Appellant, a licensed professional appraiser, was retained by Peoples
Bank to appraise The Woods Subdivision, a residential development located in Fairfield
County, Ohio. The agreement required Appellant’s appraisal to conform to the Uniform
Standard Professional Appraisal Practices (“USPAP”), to summarize the physical and
economic characteristics of The Woods Development and to summarize sufficient
information to disclose to the intended user the scope of the work used to develop the
appraisal. Appellant had been advised by David Dozer, the developer of the
subdivision, that the property had been appraised by another appraiser before any
construction had commenced on the development. That prior appraisal was completed
by Daniel Smith of Daugherty Appraisers, Inc. (The “Daugherty appraisal”).
{¶5} Appellant requested a copy of the Daugherty appraisal. In Appellant’s
report, he used the same format and some of the substantive language that was used in
the Daugherty appraisal. Appellant provided his report to Carey Klies, an Appraisal
Review Specialist for Peoples Bank. Upon receiving Appellant’s appraisal, Klies sent
an email to Appellant stating that she noticed that “the majority of your report is identical
to the last appraisal report, including the absorption rate and all factors used to calculate
the value per the income approach (discounted cash flow).” Klies requested that
Appellant revise his report to reflect current market factors and a current market value
for the property since the Daugherty report had been completed in September, 2007.
{¶6} Appellant then collected additional information and submitted a revised
report, which contained subdivision comparables information and confirmation of
Appellant’s calculated absorption rate.
{¶7} Klies filed a complaint with the Ohio Department of Commerce, Division of
Professional Licensing regarding the appraisal work done by Appellant. Shannon
Drawns investigated the complaint and notified Appellant that he was being charged
with plagiarizing portions of his report and failing to provide an independent analysis of
the information contained within his report.
{¶8} A hearing was held on July 14, 2008, and August 22, 2008. At the
hearing, evidence was presented concerning the similarities in the Daugherty appraisal
and Appellant’s reports. The hearing examiner recommended that the Board find
Appellant guilty of dishonesty, fraud, or misrepresentation, with the intent to either
benefit the certificate holder, registrant, or licensee or another person or to injure
another person. Additionally, the officer recommended that Appellant be found guilty of
violating the standards for the development or communication of real estate appraisals
set forth in R.C. Chapter 4763 and the Rules of the Board. Moreover, the officer
recommended that Appellant be found guilty of failing or refusing to exercise reasonable
diligence in developing an appraisal, preparing an appraisal report, or communicating
an appraisal. The officer did not recommend that Appellant be found guilty of
negligence or incompetence in developing the appraisal, in preparing the appraisal
report or in communicating an appraisal even though Appellant had originally been
charged with those infractions. In addition, the officer found a lack of evidence to
support a recommendation that Appellant be found guilty of willfully disregarding or
violating R.C. 4763 or any of the Rules adopted under that Chapter of the Revised
Code.
{¶9} Appellant filed objections to the officer’s report and the full Board reviewed
the hearing examiner’s report and Appellant’s objections. Based on this review, the
Board adopted the hearing officer’s recommendations.
{¶10} Appellant appealed the finding of the Board to the Fairfield County Court
of Common Pleas on July 17, 2009, and argued that the Board’s conclusions were
factually and legally incorrect. The Ohio Department of Commerce, Division of Real
Estate and Professional Licensing filed the record of the administrative proceedings in
the trial court on August 7, 2009.
{¶11} The trial court reviewed the transcripts, exhibits that were introduced
before the Board, and the briefs of attorneys for both parties.
{¶12} The trial court then issued an opinion on October 8, 2010, finding that it
was “impossible to conclude that [Appellant’s] use of the Daugherty Appraisal was
misleading under the circumstances.” The trial court further found that Appellant
“pursued the information necessary to conduct the appraisal and write the appraisal
report with all due diligence, unaffected by the availability or use of the Daugherty
Appraisal.” The court then concluded, however, that by failing to disclose his use of the
Daugherty Appraisal in his report, he caused the recipient of the report to
“misunderstand the content of the report and question the accuracy of the report’s
substantive content.” Additionally, the court stated that Appellant’s failure to disclose
his use of the Daugherty Appraisal constituted “a failure to use a recognized technique
in reporting the results of any type of research.”
{¶13} The lower court also opined that had Appellant indicated in his report that
he used the Daugherty appraisal as a “starting point” for his own appraisal report, the
entire situation could have been averted.
{¶14} Appellant now appeals from the judgment of the trial court and raises one
Assignment of Error:
{¶15} “I. THE LOWER COURT ABUSED ITS DISCRETION IN DECIDING, AS
A MATTER OF LAW, THAT: A) APPELLANT’S FAILURE TO SPECIFICALLY
DISCLOSE HIS USE OF THE DAUGHERTY APPRAISAL “CONTRIBUTED THE
FAILURE OF THE RECIPIENT TO BE ABLE TO USE THE REPORT AS INTENDED
AND CONSTITUTED A FAILURE TO USE A RECOGNIZED TECHNIQUE IN
REPORTING THE RESULTS OF ANY TYPE OF RESEARCH”; B) APPELLANT’S
FAILURE TO DISCLOSE HIS USE OF THE DAUGHERTY APPRAISAL “CAUSED THE
RECIPIENT TO MISUNDERSTAND THE CONTENT OF THE REPORT AND TO
QUESTION THE ACCURACY OF THE REPORT’S SUBSTANTIVE CONTENT AND
ITS RELIABILITY:; AND, C) APPELLANT’S SIMPLE MENTION OF HIS INTENTION
TO USE THE DAUGHERTY APPRAISAL AS A “STARTING POINT FOR HIS OWN
APPRAISAL REPORT … COULD HAVE AVERTED THIS ENTIRE SITUATION.”
I.
{¶16} In an appeal from an administrative review board's order, a reviewing trial
court is bound to uphold the order if it is supported by reliable, probative, and
substantial evidence, and is in accordance with law. R.C. 119.12; In re Williams (1991),
60 Ohio St. 3d 85, 86, 573 N.E.2d 638, 639. The appellate court's review is even more
limited than that of the trial court. “While it is incumbent on the trial court to examine the
evidence, this is not a function of the appellate court. The appellate court is to determine
only if the trial court has abused its discretion, i.e., being not merely an error of
judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.
Absent an abuse of discretion on the part of the trial court, a court of appeals may not
substitute its judgment for those of the * * * board or a trial court. Instead, the appellate
court must affirm the trial court's judgment.” Pons v. Ohio State Medical Board (1993),
66 Ohio St. 3d 619, 1993-Ohio-122, 614 N.E.2d 748, citing Lorain City School Dist. Bd.
of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St. 3d 257, 260-261, 533 N.E.2d
264, 266. See, also, Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of
Edn. (1992), 63 Ohio St. 3d 705, 707, 590 N.E.2d 1240, 1241.
{¶17} Moreover, when reviewing a board's order, courts must accord due
deference to the board's interpretation of the technical and ethical requirements of its
profession. Arlen v. State (1980), 61 Ohio St. 2d 168, 173, 15 O.O.3d 190, 194, 399
N.E.2d 1251, 1254-1255. “ ‘ * * * The purpose of the General Assembly in providing for
administrative hearings in particular fields was to facilitate such matters by placing the
decision on facts with boards or commissions composed of [people] equipped with the
necessary knowledge and experience pertaining to a particular field. * * * ’ ” Id., quoting
Farrand v. State Med. Bd. (1949), 151 Ohio St. 222, 224, 39 Ohio Op. 41, 42, 85 N.E.2d
113, 114.)
{¶18} The issue before this Court, then, is whether the trial court abused its
discretion in upholding the Board’s finding of plagiarism on the part of Appellant. We
may not substitute our judgment on behalf of the trial court or the Board.
{¶19} Upon review, we do not find an abuse of discretion on the part of the trial
court below.
{¶20} The Appellant obtained a copy of an appraisal previously completed by
another appraiser (the Daugherty appraisal) on the same property that Appellant was
retained to appraise. The Appellant used portions of the Daugherty appraisal as his
own and that he submitted that work to Peoples Bank as his own work. The Board
found that the format and wording of the Daugherty appraisal and Appellant’s appraisal
were nearly identical with at least two pages being a “word-for-word copy.”
{¶21} The Appellant’s appraisal differed from the Daugherty appraisal in several
respects: (1) new absorption rate information; (2) new deed restrictions information; (3)
updated information regarding development and physical attributes of the property; (4)
new figures regarding gross sales proceeds; (5) new information regarding the income
capitalization approach; (6) a new market value; (7) a new excess vacant land chart;
and (8) a new reconciliation and final value page.
{¶22} The trial court found that it was “entirely reasonable for the Hearing Officer
to find, based on comparison of the two appraisal reports, that they were almost
identical in some respects and very different in other respects. In fact, those findings
are exactly what one would expect, given [Appellant’s] contention that he purposely
used the wording and format of the Daugherty Appraisal and inserted new facts and his
own analysis where appropriate.”
{¶23} The trial court, in its conclusions of law, found as follows:
{¶24} “The Board adopted the conclusions of law of the Administrative Hearing
Officer. The Hearing Officer applied the 2006 Uniform Standards of Professional
Appraisal Practices (“USPAP”) by force of R.C. 4763.11(G). The relevant USPAP
provisions were Standards Rule 1-1 and Standards Rule 2-1. USPAP Standards Rule
1-1 requires appraisers to “be aware of, understand, and correctly employ those
recognized methods and techniques that are necessary to produce a credible
appraisal.” USPAP Standards Rule 2-1 provides, “[e]ach * * * appraisal report must (a)
clearly and accurately set forth the appraisal in a manner that will not be misleading; (b)
contain sufficient information to enable the intended users of the appraisal to
understand the report properly; and (c) clearly and accurately disclose all assumptions”
and other factors affecting the development of the appraisal report. The hearing officer
also applied language from the Frequently Asked Questions section of the USPAP. The
applied language was, “Plagiarism is unethical. * * * Presenting an appraisal report as
yours when all or part is the work of someone else is clearly misleading.”
{¶25} The trial court found that the Hearing Officer’s determination that
Appellant’s use of entire pages of the Daugherty appraisal was plagiarism was well-
founded.
{¶26} The trial court did find that Appellant’s actions could not have been
determined to be misrepresentation with the intent to benefit Appellant. The court also
stated that it could not “conclude that the hearing officer’s conclusion that [Appellant’s]
use of the Daugherty Appraisal was misleading * * *. The copied portions of the
Daugherty Appraisal that appeared in [Appellant’s] appraisal report are so obvious that
it is impossible to conclude that [Appellant’s] use of the Daugherty Appraisal was
misleading under the circumstances.”
{¶27} The court also concluded that the Board erred in adopting the Hearing
Officer’s conclusions of law concerning a lack of diligence on Appellant’s part.
{¶28} As a whole, however, the trial court found that the Hearing Officer’s
conclusions of law, and the Board’s decision to adopt those conclusions, were in
accordance with the law. Appellant’s failure to disclose his use of the Daugherty
appraisal in his appraisal report contributed to the failure of the recipient to be able to
use the report as intended and constituted a failure to use a recognized technique in
reporting the results of any type of research. The court stated, “Because Appellant
failed to disclose his use of the Daugherty Appraisal in his report, he caused the
recipient to misunderstand the content of the report and to question the accuracy of the
report’s substantive content and its reliability. A simple mention of [Appellant’s] intent to
use the Daugherty Appraisal as a starting point for his own appraisal report in order to
provide a clearer picture to the intended user could have averted this entire situation.”
{¶29} For those reasons, the trial court affirmed the Board’s Adjudication Order,
which adopted the Hearing Officer’s findings.
{¶30} We find the trial court had the discretion to weigh the evidence and make
the decision that Appellant violated the standards set forth in the USPAP and under RC
4673. Moreover, we find that the trial court did not abuse its discretion in upholding the
determination of the Board. A page by page comparison of the appraisal reports clearly
shows Appellant took portions of the Daugherty Appraisal and represented it as his
own. Still, Appellant contends on appeal that the trial court committed legal error
because (1) there was no evidence that Peoples Bank could not use the Appellant’s
appraisal report; (2) there is no professional requirement that an appraisal “use their
own words” or reference the work of others; and (3) there was no evidence Peoples
Bank “misunderstood its contents”.
{¶31} We find Appellant’s contentions without merit. The USPAP standards
clearly delineate that plagiarism is unethical. The trial court simply pointed out that
Appellant’s citation to the Daugherty appraisal would have put the reader on notice that
the source of the data or information was credited to someone else. By failing to
acknowledge the Daugherty appraisal in the appropriate manner, Appellant represented
the work as his own and by that action committed plagiarism and created a misleading
report.
{¶32} In light of the foregoing, we affirm the judgment of the trial court.
{¶33} Appellant’s assignment of error is overruled.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAN R. SINGER :
:
Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
KELLY DAVIDS, SUPERINTENDENT :
OF THE OHIO DIVISION OF REAL :
ESTATE AND PROFESSIONAL
LICENSING
Appellee : Case No. 10-CA-55
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed
to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE