Gordon N. Dempsey v. Real Estate Appraiser Board

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
GORDON N. DEMPSEY
MEMORANDUM OPINION *
v. Record No. 2592-01-3 PER CURIAM
APRIL 2, 2002
REAL ESTATE APPRAISER BOARD OF
THE COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Richard C. Pattisall, Judge
(Sam Garrison, on brief), for appellant.
(Randolph A. Beales, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; John B. Purcell, Jr., Assistant
Attorney General, on brief), for appellee.
Gordon N. Dempsey (Dempsey) appeals a decision of the
circuit court affirming the revocation of his real estate
appraiser's license by the Virginia Real Estate Appraiser Board
(Board). Dempsey contends the trial court erred by refusing to
reverse the Board's decision or remand his case to the Board
because (1) the Board lost a letter making it unavailable for
consideration by the Board at its October 17, 2000 meeting; (2)
the Board allowed the testimony of a licensed real estate
appraiser who was not a party to the proceedings; and (3) the
Board did not record and transcribe the October 17, 2000
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
In its August 28, 2001 final order, the circuit court
affirmed the Board's October 17, 2000 monetary sanctions and
license revocation against Dempsey.
Dempsey supervised Evie Kinsey, who was not a licensed
appraiser, from 1997 until March 1999. During this time, Kinsey
signed numerous appraisal reports as "Appraiser" and Dempsey
signed them as "Supervisory Appraiser." Following complaints
involving Dempsey's appraisals, the Board conducted informal fact
finding conferences on February 24, 2000 and September 27, 2000,
pursuant to Code § 9-6.14:11. The Board entered its Final
Opinions and Orders on December 24, 2000. The Board determined
Dempsey violated a number of provisions of the Uniform Standards
of Professional Appraisal Practice, which has been adopted by the
Board, relating to the preparation of appraisal reports. The
violations included allowing Kinsey to sign the reports as an
appraiser, using falsified comparable sales data, failing to
report accurately the properties, and failing to make use of tax
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records and sales within the subject's development to obtain a
more accurate estimated value.
Dempsey claims the Board or its staff lost or misplaced a
letter from Joseph Straub, Kinsey's former employer, before the
October 17, 2000 Board hearing. The letter, a recreation of which
was presented to the trial court, positively recommended Kinsey.
During the Board's October 17, 2000 meeting, John M. Foster and
Pat E. Turner, licensed real estate appraisers and complainants in
two of the cases, addressed the Board. Foster had reappraised one
of the properties appraised by Dempsey. The Board did not record
the meeting.
Analysis
"It is well established that agency action is presumed
valid on review, and the burden rests upon the party complaining
to overcome this presumption. Code § 9-6.14:17." EDF v. State
Water Control Bd., 15 Va. App. 271, 277, 422 S.E.2d 608, 611
(1992).
I.
Dempsey argues that by misplacing the letter recommending
Kinsey, the Board denied him his right to present evidence upon
relevant factual issues. See Code § 9-6.14:12. The Straub letter
was discussed at the February 24, 2000 and September 27, 2000
conferences. The transcripts from these conferences reference the
letter and note that it is missing. The parties disagree as to
whether Dempsey introduced the letter during the February
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conference. It is evident from the transcripts that the presiding
conference officer, David N. Castle, was familiar with the letter
and its contents and duly considered it when he made his
recommendations to the Board. References in the February
conference transcript substantiate the limited content of the
letter. The circuit court assumed the letter had been made part
of the record by Dempsey at the February conference, and did not
err in holding that any error by the Board in not preserving the
document was harmless.
"No reversible error will be found . . . unless there is a
clear showing of prejudice . . . ." Johnston-Willis v. Kenley,
6 Va. App. 231, 258, 369 S.E.2d 1, 16 (1988). The conferences
investigated complaints made on appraisals signed by Dempsey. By
signing the appraisals, Dempsey vouched for the accuracy of the
appraisals and compliance with all statutes and regulations.
Although the letter may have relayed Kinsey's qualifications, it
did not excuse Dempsey's obligation to properly supervise her
work. Castle and the Board were aware of the contents of the
missing letter. The Board made its decision based upon the entire
record, including the testimony regarding the recommendation of
Kinsey and repeated references to the letter contained in the
transcripts. The letter's unavailability as part of the record
did not affect the Board's decision.
Dempsey argues Foster's comments were inflammatory,
inappropriate and potentially prejudicial. However, he also
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concedes that it is impossible to determine what effect, if any,
the remarks had on the Board's decision.
[T]he rules of evidence are relaxed in an
administrative proceeding and . . . "[n]o
reversible error will be found . . . unless there
is a clear showing of prejudice arising from the
admission of [improper] evidence, or unless it is
plain that the agency's conclusions were
determined by the improper evidence, and that a
contrary result would have been reached in its
absence."
Id. at 258, 369 S.E.2d at 16 (citations omitted). We assume
without deciding that Foster's remarks were improper. Dempsey
has failed to demonstrate actual prejudice as a result of the
remarks. Additionally, the evidence that Dempsey violated Board
rules is admitted or overwhelming in each of the seven cases
against him. Therefore, even if it was error to consider the
remarks, the error is harmless.
II.
Dempsey next argues the trial court erred by finding no
violation of his due process rights when the Board permitted
Foster, a licensed real estate appraiser, to testify before it
at its October 17, 2000 meeting. Code § 9-6.14:11(C) permits
"persons who participated in the prior [conference] . . . an
opportunity to respond at the board . . . meeting to any
summaries of the prior proceeding prepared by or for the board."
As a complainant who testified at the conference against
Dempsey, Foster was a "participant" authorized to respond.
Foster's comments at the October 17, 2000 meeting were
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consistent with Code § 9-6.14:11(C) and did not exceed the
bounds of the statute. He highlighted the nature and facts of
his complaint and specifically responded to the summary.
III.
Finally, Dempsey contends the Board was obligated to record
and transcribe the October 17, 2000 proceedings. Code
§ 2.1-343, governing public meetings, only requires that the
"[m]inutes shall be recorded at all open meetings." Code
§ 2.1-343(I). The Board duly recorded the minutes of the
October 17, 2000 proceedings. Furthermore, pursuant to Code
§ 2.1-343(H), Dempsey was permitted to "record or otherwise
reproduce any portion of a meeting required to be open." He
chose not to do so. Dempsey stated no error of law. "The
burden shall be upon the party complaining of agency action to
designate and demonstrate an error of law subject to review by
the court." Code § 9-6.14:17.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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