In re Klein, No. 22694.

CourtSouth Dakota Supreme Court
Writing for the CourtSABERS, Justice.
Citation670 N.W.2d 367,2003 SD 119
Decision Date24 September 2003
Docket NumberNo. 22694.
PartiesIn the Matter of Raymond KLEIN, Appraiser.

670 N.W.2d 367
2003 SD 119

In the Matter of Raymond KLEIN, Appraiser

No. 22694.

Supreme Court of South Dakota.

Considered on Briefs August 25, 2003.

Decided September 24, 2003.


Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.

Joseph E. Ellingson, Spearfish, South Dakota, Attorney for appellant Klein.

SABERS, Justice.

[¶ 1.] The Department of Commerce and Regulation (Department) found that appraiser Raymond Klein violated the Uniform Standards of Professional Appraisal Practice (USPAP) and imposed sanctions. Klein's state-certified General Appraiser Certificate was suspended for 120 days, a penalty of $1000 was assessed and he was ordered to have his non-residential appraisals reviewed at his expense for six months. Klein appealed to the circuit

670 N.W.2d 368
court and the circuit court affirmed. Klein appeals. We affirm

FACTS

[¶ 2.] In May 2000, Black Hills Power and Light (BHP) commenced condemnation proceedings against Bailey Associates for an easement to erect power lines. Bailey owned approximately 160 acres of land and the strip BHP was condemning was approximately 6.5 acres. Bailey hired Klein to appraise the property to determine appropriate compensation for the condemned property. Bailey was unaware that this was Klein's first condemnation appraisal.

[¶ 3.] Klein completed his appraisal on May 8, 2000 and the jury trial to determine compensation was held on May 12, 2000. Klein testified and Bailey used his appraisal to support its assertions regarding appropriate compensation. John Widdoss appraised the property for BHP and also testified at trial.

[¶ 4.] After the trial, Widdoss filed a complaint with the Appraiser Certification Program at Department. Widdoss asserted that Klein's appraisal was incompetent because, among other things, it failed to use proper appraisal methods. The Department forwarded the Complaint, Klein's response and supporting documents, and the appraisals to two examiners for review. The examiners independently determined that Klein had committed numerous, significant violations of the USPAP. The examiners both concluded that the appraisal was "not done competently." The examiners jointly compiled a list of the violations they agreed upon and submitted the list to the Department. Based on the violations found by the examiners, the Department recommended that:

1. Klein's state-certified General Appraiser Certificate be suspended for 120 days;
2. Klein pay an "unprofessional conduct penalty fee" of $750; and
3. Klein's non-residential appraisals be reviewed at his expense for six months.

[¶ 5.] Klein requested a hearing and it was held on May 29, 2001. The Secretary accepted the hearing officer's findings and conclusions, and based on the numerous violations, the Secretary imposed sanctions. Klein appealed to the circuit court and after briefing and oral argument, the circuit court affirmed the Department's decision. Klein appeals raising several issues which we consolidate as:

Whether there was sufficient evidence to support the determination that Klein's appraisal was incompetent.

We affirm.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for an administrative appeal is well settled. SDCL 1-26-36 requires us to give great weight to findings and factual inferences drawn by the agency. Sopko v. C R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (additional citations omitted). "Agency findings are examined `in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.'" Western Wireless Corp. v. Dept. of Revenue, 2003 SD 68, ¶ 5, 665 N.W.2d 73, 75 (quoting Sopko, 1998 SD 8 at ¶ 6, 575 N.W.2d at 228). An agency's conclusions of law are fully reviewable. Id. In matters concerning the revocation of a professional license, the agency's burden of proof is clear and convincing. In Re

670 N.W.2d 369
Setliff, 2002 SD 58 ¶ 13, 645 N.W.2d 601, 605

[¶ 7.] WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE DETERMINATION THAT KLEINS APPRAISAL WAS INCOMPETENT.

[¶ 8.] The administrative rules governing appraisers require that appraisals conform to the USPAP. ARSD 20:14:06:01; ARSD 20:69:10:03. The USPAP requires appraisers to comply with the competency rules and standards set out in its provisions. The competency rule provides:

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1 practice notes
  • Meligan v. Dept. of Revenue and Regulation, No. 23715.
    • United States
    • Supreme Court of South Dakota
    • March 15, 2006
    ...¶ 25, 705 N.W.2d 461, 465. SDCL 1-26-36 requires that we give great weight to the agency's factual findings and inferences. In re Klein, 2003 SD 119, ¶ 6, 670 N.W.2d 367, 368. Consequently, we will not set those findings or inferences aside unless they are clearly erroneous. Id. "The t......
1 cases
  • Meligan v. Dept. of Revenue and Regulation, No. 23715.
    • United States
    • Supreme Court of South Dakota
    • March 15, 2006
    ...¶ 25, 705 N.W.2d 461, 465. SDCL 1-26-36 requires that we give great weight to the agency's factual findings and inferences. In re Klein, 2003 SD 119, ¶ 6, 670 N.W.2d 367, 368. Consequently, we will not set those findings or inferences aside unless they are clearly erroneous. Id. "The t......

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