Brady v. State of Delaware Council on Real Estate Appraisers

• Court: Superior Court of Delaware
• Decided: June 21, 2016
• Docket: N15A-11-003 JAP
• Status: Published

Opinion

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.”

3 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

4 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.

5 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.