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NOT DESIGNATED FOR PUBLICATION ARKANSAS COURT OF APPEALS DIVISION I No. CA08-1197 ARKANSAS APPRAISER LICENSING Opinion Delivered 24 JUNE 2009 & CERTIFICATION BOARD, APPELLANT APPEAL FROM THE UNION COUNTY CIRCUIT COURT, V. [NO. CV-05-273-6] THE HONORABLE DAVID F. PETER EMIG, GUTHRIE, JUDGE APPELLEE CIRCUIT COURT REVERSED; BOARD AFFIRMED D.P. MARSHALL JR., Judge The Arkansas Appraiser Licensing and Certification Board disciplined Peter Emig for what the Board concluded was substandard work in a before and after appraisal of real property in Camden damaged by leaky gasoline storage tanks. Emig acknowledged an error or two, but otherwise stood by his work. One of Emigs clients (an experienced lawyer) testified that he was not misled by the appraisal in any way. The lawyer used it to good effect in litigation against the convenience store whose tanks leaked the gasoline. An appraiser hired by the Board to evaluate Emigs work testified to several deficiencieserrors, omissions, and unexplained assumptionsthat violated the Boards professional standards. Emigs experts, also appraisers, acknowledged some errors but mostly defended Emigs efforts as reasonable.
On Emigs petition for judicial review, the circuit court reversed the Boards discipline order for being inconsistent in one respect and arbitrary in several. The Boards appeal brings the dispute herenot for consideration of the circuit courts decision, but of the Boards. Tomerlin v. Nickolich, 342 Ark. 325, 331, 27 S.W.3d 746, 749 (2000); Mann v. Arkansas Profl Bail Bondsman Licensing Bd., 88 Ark. App. 393, 399, 199 S.W.3d 84, 88 (2004). Our standard of review is settled and narrow. Mann, supra. The questions for this court are whether the Boards findings are backed by substantial evidence, whether the Board acted arbitrarily or capriciously, and whether any other legal error compromised the Boards decision. Ark. Code Ann. § 25-15-212(h) (Repl. 2002); Mann, 88 Ark. App. at 399400, 199 S.W.3d at 8889. Attorneys Allen Roberts and Samuel Ledbetter, who were prosecuting a lawsuit on behalf of the owners of the Camden property, retained Emig as an appraiser. The lawsuit concerned environmental contamination affecting the approximately twenty-acre parcel when a nearby convenience stores underground fuel tanks leaked. In order to assess and prove the damage to the property caused by the leak, the attorneys commissioned a before and after contamination appraisal. The Board found that Emigs appraisal of the Camden property violated professional standards as set forth in Arkansas Code Annotated sections 17-14-206(a)(1) and (4) (Supp. 2007), and 17-14-305(a) (Repl. 2001), and the Uniform Standards of Professional Appraisal Practice (USPAP). The Board found the appraisal deficient -2-
because, among other things, it (1) failed to use appropriate comparables, (2) failed to show conspicuously that the property was located in a flood zone, (3) improperly assumed that financing would be unavailable post-contamination, (4) cited an incorrect date of contamination, (5) relied on improper records for the size of the property, (6) made deficient and conflicting determinations about the propertys highest and best use, and (7) improperly included another appraiser who had not sufficiently contributed to the report. Two experts testified on Emigs behalf and one on the Boards. The Board retained its expert, Douglas Hall, to conduct a pre-discipline independent review of Emigs work. Hall testified that he found that Emigs report was incomplete and did not follow correct methodology.” Hall also testified about his extensive experience in conducting and reviewing appraisals, as well as participating in litigation as a third-party investigator. Halls testimony showed that he had sufficiently familiarized himself with this particular property and the specifics of contamination appraisals. Emigs experts acknowledged a little red flag and inadequacies with regard to certain aspects of the appraisal. For example, one of Emigs experts testified that Emigs highest and best use determinations were deficient and confusing. He also said that it would have been more prudent to have [explanations as to methodology] in the report now in hindsight.” But generally both of his experts agreed that Emigs bottom line was in the ballpark and did not mislead anyone so as to rise to the level -3-
of a USPAP violation. In Emigs defense, his experts pointed out that contamination appraisalsbecause they are rare and extremely market-dependentconstitute a particularly challenging subset of property appraisals. Emig conceded that his report contained several mistakes that, in hindsight, he would correct. He also admitted to improperly including the other appraisers name: On retrospect I probably should have gone to that template and taken her name out of it because she was not involved in that part.” But he defended almost all of his work and described this project as very, very difficult.” Substantial evidence supports the Boards determination that Emigs appraisal fell short of the governing standards. Mann, 88 Ark. App. at 399400, 199 S.W.3d at 8889. This record presents a duel of experts on a specialized matterthe standards and required practices for real estate appraisals. We defer to the Boards resolution of this competing proof. Ibid. Although we are not reviewing the circuit courts decision, Mann, 88 Ark. App. at 399, 199 S.W.3d at 88, we address its main concern. The circuit court perceived an inconsistency in the Boards concluding that Emig had not violated the Conduct Section of the Ethics Rule of the USPAP while simultaneously concluding that he had violated the USPAP. Because of this, the circuit court remanded for clarification. We see no inconsistency. The Conduct Section stacks several requirements of professional competence and integrity. It thus establishes a standard of ethical behavior -4-
beyond competent appraisals. By deeming the Conduct Section charge not proven,” the Board implicitly concluded that Emigs workhowever deficientdid not render his behavior unethical. That is, the Boards conclusion that Emig violated the USPAP and not the Conduct Section shows that the Board read that section to addressfirst and foremostethics. And the Board read the Conduct Section to require both a violation of ethics and competence to constitute a violation of the section. There was simply no evidence that Emig acted unethically. We defer to the Boards interpretation of its own rules because its interpretation is neither clearly wrong nor arbitrary. Kale v. Arkansas State Medical Bd., 367 Ark. 151, 15455, 238 S.W.3d 89, 9192 (2006). Halls testimony, Emigs admissions, and those of his experts constitute substantial evidence supporting the Boards finding that Emigs work was deficient and violated Arkansas Code Annotated sections 17-14-206(1) and (4), and 17-14-305(a), and the USPAP. And we see nothing arbitrary, or otherwise contrary to law, in the Boards decision. Circuit court reversed; Board affirmed. HART and GLOVER, JJ., agree. -5-
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