ORDERS:
ORDER
STATEMENT OF THE CASE
Pursuant to S.C. Code Ann. §§ 40-60-170(D) & 1-23-380(B) (Supp. 2000), Appellant James F. Johnston, III
appeals the Order of the South Carolina Real Estate Appraisers Board dated October 23, 2000. In its Order, the
Board imposed a $1,000 penalty and suspended Respondent's license for one year. The Board found that
Appellant violated S.C. Code Ann. § 40-60-140(A)(9) and (19) (Supp. 1998) and the 1997 Uniform Standards
of Professional Appraisal Practice (USPAP) 1-4(b)(iii) and 2-1(a). Specifically, the Board found that
Appellant, in appraising a house undergoing renovations, violated S.C. Code Ann. § 40-60-140(A)(9) and
USPAP 2-1(a) by failing to clearly and accurately communicate in the appraisal whether "80% of the
renovation and remodeling had been completed or whether . . . 80% of work to the whole house had been
completed." In addition, the Board found that Appellant violated S.C. Code Ann. § 40-60-140(A)(19) and
USPAP 1-4(b)(iii) by using superior comparable sales from another county with higher property values without
adequate adjustment and by failing to use comparables within the subject county. Upon careful consideration of
the record, the briefs filed, the applicable law, and counsel's oral arguments, the Board's Order of October 23,
2000, is reversed.
BACKGROUND
In 1997, Mr. James F. Johnston, III (Appellant) was a licensed real estate appraiser and the principal and
supervisory appraiser in Consolidated Appraisal Services, Inc. (Consolidated). Appellant has been an appraiser
for eighteen years but had chosen not to renew his license at the time of his hearing before the Board. In May
1997, Consolidated was hired by Capital City Mortgage Company, Inc. to perform an appraisal on residential
real estate located at 1360 Little Creek Road in Fairfield County, South Carolina. The appraisal was in
preparation for refinancing, which included additional money for the house to be completely renovated and
remodeled. On May 29, 1997, Consolidated appraiser Kyle Smith prepared an appraisal based on his inspection
of the exterior and interior of the subject property and Appellant's subsequent inspection. The appraisal was
done "subject to" completion of the repairs, stated that the value was contingent upon work being done in a
workmanlike manner, and suggested a final inspection before closing or releasing funds. Nonetheless, the
closing attorney authorized the release of funds from Diversified Capital Corporation (Diversified), the
residential lender.
Diversified later filed a complaint with the South Carolina Real Estate Appraisers Board (Board) that the
appraisal prepared by Kyle Smith and reviewed by Appellant contained errors which resulted in substantial
overvaluation of the property and misled the lender, and that Diversified had accordingly lost money. The
Board heard this action on August 10, 2000, after Appellant had been properly served with notice of the charges
and hearing date. The Department charged Appellant with violating provisions of the South Carolina Real
Estate Appraisers Registration, Licensing and Certification Act, specifically S.C. Code Ann. § 40-60-140(A)(4),
(9), (10), (11), and (10), as well as USPAP 1-1(c), 1-4(b)(iii), 1-4(g) and 2-1(a). The USPAP has been adopted
by the Board pursuant to S.C. Code Ann. § 40-60-145 (Supp. 2000). The Board issued its written Order on
October 23, 2000. Due to a scrivener's error, Appellant was not served with a copy of the Order until
December 7, 2000.
ISSUES ON APPEAL
As provided by ALJD Rule 37(B)(1) (2001), the Division will consider only the grounds set forth in the
statement of issues on appeal as set forth in the Appellant's Brief. The gravamen of the issues on appeal
reduces to essentially four grounds.
I. Did the Board's failure to serve Appellant with a copy of the Board's Order within the time frame required
by statute render the Board's decision a nullity?
II. Was the Board's finding that Appellant violated S.C. Code Ann. § 40-60-140(A)(9) (Supp. 1998) and
USPAP 2-1(a) by failing to clearly and accurately set forth whether the 80% figure represented the amount of
work completed or the percentage of the total value of the house completed so as not to be misleading supported
by substantial evidence?
III. Was the Board's finding that Appellant violated S.C. Code Ann. § 40-60-140(A)(19) (Supp. 1998) and
USPAP 1-4(b)(iii) by using superior comparables from the adjoining county without adequate adjustment and
failing to use existing comparables in the subject county supported by substantial evidence?
IV. Did the presentation to the Board by Mr. Farnell prior to the hearing without Appellant's presence and
Board Member Segars' ex parte communication with the investigator taint the hearing so as to deprive
Appellant of due process and his right to a fair hearing?
ANALYSIS
S.C. Code Ann. § 40-60-150(C)(3) was amended effective June 6, 2000, by Act No. 335 § 1, and now provides
in relevant part:
The board shall render a decision and shall serve notice, in writing within thirty days, of the board's decision to
the applicant or appraiser charged. The board also shall state in the notice the date the ruling or decision
becomes effective.
(Emphasis added.) The Board reduced its Final Decision to writing on October 23, 2000 and mailed it to
Appellant by certified mail; however, it was not received by Appellant due to a scrivener's error in the zip code.
Appellant did not receive a copy of the decision until hand delivered on December 7, 2000, after Appellant
inquired about the status of the matter with Mr. Lenski, the Department's counsel. The Department has fully
admitted that it did not effect timely service of the Board's Order upon Appellant.
In the only South Carolina case directly on point, the Court of Appeals held that the Department of Public
Safety's failure to meet procedural statutory deadlines divested the Department of subject matter jurisdiction.
See Starnes v. S.C. Dep't of Public Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000). (1)
In that case, the
Department suspended Starnes' driver's license for DUI but failed to hold the administrative hearing within the
10-day statutory time frame and failed to serve the order within 30 days of the hearing. The Court held that
where the statutory language is mandatory, the legislative intent is clearly to require the Department to strictly
adhere to time frames, and the Court will not look behind the clear statutory language to determine a contrary
intent. Based on the same reasoning, the Court went on to hold that where the Department did not timely serve
its written order as required by statute, the decision must be overturned on appeal. The facts of that case and
the instant appeal are seemingly indistinguishable. Like the statute in Starnes, Section 40-60-150(C)(3) also
mandates service of the agency's order within 30 days of the decision. (2)
Because the Board's failure to serve the Order within 30 days rendered the Order a nullity, this tribunal need
not reach the remaining issues. The appellate courts have consistently held that an appellate court need not and
should not address remaining issues on appeal where the determination of a prior issue is dispositive. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999); Whiteside v.
Cherokee County School District No. One, 311 S.C. 335, 428 S.E.2d 886 (1993); Starnes v. S.C. Dep't of
Public Safety, 342 S.C. 216, 222-23, 535 S.E.2d 665, 668 (Ct. App. 2000). See also Rule 220(b) and (c),
SCACR (appellate court's opinion must state in writing "every point distinctly stated in the case which is
necessary to the decision of the appeal. . . ."; appellate court may affirm any order on any ground in the
record)(emphasis added).
ORDER
IT IS THEREFORE ORDERED that the Board's Order is REVERSED.
AND IT IS SO ORDERED.
___________________________________
JOHN D. GEATHERS
Administrative Law Judge
August 8, 2001
Columbia, South Carolina
1. In contrast, other jurisdictions have held that where the purpose of the legislation was timely resolution of
these matters, the law does not require dismissal of an untimely filing. Absent specific language preventing
the agency from taking action beyond the time frame, such a statutory mandate is not jurisdictional. See, e.g.
In re Abigail C., 138 Md. App. 570, 772 A.2d 1277 (2001); Martino v. N.H. Dep't of Labor Comp. Appeals,
138 N.H. 612, 644 A.2d 546 (1994); Smith v. N.H. Bd. of Exam'rs of Psychologists, 138 N.H. 548, 645 A.2d
651 (1994); Dunlop v. Bechtel Power Corp., 6 O.S.H.Cas. 1605 (M.D. La. 1977). In analyzing the failure of
a federal agency to meet a statutorily mandated deadline,
the majority referred to the "not uncommon" failures of agencies with "heavy workloads" to meet deadlines,
and to the Court's prior holdings that evidence a forgiving attitude toward those failures, i.e., passage of a
statutory deadline for taking an action does not alone deprive the agency of the power to take the action.
See generally Kenneth Culp Davis & Richard J. Pierce, Jr. Administrative Law Treatise § 12.3 Legal
Remedies for Delay (3d ed. Supp. 2000), citing Regions Hospital v. Shalala, 522 U.S. 448, 460, 118 S.Ct.
909, 916 at n.3 (1998).
2. Neither the statute implicated in Starnes, nor the statute in present case provides an express remedy for the
agency's failure to comply with the mandatory deadlines. |
