              In the Missouri Court of Appeals
                                Western District

EUGENE W. DWIGGINS,               )
                       Appellant, )                  WD79749
v.                                )
                                  )
MISSOURI REAL ESTATE              )                  FILED: December 27, 2016
APPRAISERS COMMISSION,            )
                     Respondent. )

        APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
               THE HONORABLE PATRICIA S. JOYCE, JUDGE

      BEFORE DIVISION TWO: LISA WHITE HARWDWICK, PRESIDING JUDGE,
         KAREN KING MITCHELL AND ANTHONY REX GABBERT, JUDGES

      Eugene Dwiggins appeals from the Missouri Real Estate Appraisers

Commission's ("Commission") finding that he was subject to professional discipline

for violating the Uniform Standards of Professional Appraisal Practice ("USPAP"),

2012-2013 Edition. Dwiggins contends it was improper for the Commission to

apply the USPAP, because the 2012-2013 Edition has not been adopted as law in

Missouri. For reasons explained herein, we affirm.

                         FACTUAL AND PROCEDURAL HISTORY

      Dwiggins is licensed by the Commission as a state-certified residential real

estate appraiser. In November 2012, Dwiggins entered into a “Settlement
Agreement and Joint Agreed Disciplinary Order” with the Commission. The

discipline stemmed from two appraisals prepared by Dwiggins that violated the

USPAP. Pursuant to the settlement agreement and joint disciplinary order,

Dwiggins's residential real estate appraiser certification was suspended for one

month and placed on probation for three years, from January 2013 until January

2016. The probationary terms required Dwiggins to submit quarterly logs of his

appraisal work and, upon request, to send copies of his appraisal work to the

Commission.

      During the probationary period, the Commission requested copies of eight

appraisals completed by Dwiggins. In May 2015, the Commission filed an

“Amended Probation Violation Complaint” and determined, after a hearing, that

Dwiggins had violated the USPAP, 2012-2013 Edition, in two of the requested

appraisals. Based on this finding, the Commission ordered that Dwiggins’s

probationary period be extended two years to January 2018.

      Dwiggins filed a petition for administrative review in circuit court to

challenge the extension of his probation. The circuit court entered judgment in

favor of the Commission. Dwiggins appeals.

                                 STANDARD OF REVIEW

      We review the decision of the Commission and not the circuit court's

judgment. Mo. Real Estate Appraisers Comm'n v. Funk, 306 S.W.3d 101, 104

(Mo. App. 2010). We review the Commission's decision to determine if it is:

      (1) in violation of constitutional provisions;

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         (2) in excess of the statutory authority or jurisdiction of the agency;
         (3) unsupported by competent and substantial evidence upon the
         whole record;
         (4) for any other reason, unauthorized by law;
         (5) made upon unlawful procedure or without a fair trial;
         (6) arbitrary, capricious or unreasonable; [or]
         (7) an abuse of discretion.

    § 536.140.2.1 In this appeal, Dwiggins challenges the propriety of the

Commission's application of the USPAP. This is an issue of law, which we review

de novo. Funk, 306 S.W.3d at 105.

                                             ANALYSIS

         In his sole point on appeal, Dwiggins contends the Commission erred in

finding that he was subject to professional discipline for violating the USPAP,

2012-2013 Edition. He argues that the standards articulated in the 2012-2013

Edition have not been adopted by statute or regulation in Missouri and, therefore,

cannot provide grounds for discipline of his real estate appraiser license.2

         Contrary to Dwiggins’ argument, the USPAP was adopted by Missouri in

1990 as part of a federal regulatory scheme for real estate appraisals. The

legislature implemented Section 339.535 in order to comply with Title XI of the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) for

the federal regulation of appraisers in response to the savings and loan crisis. 12




1
 Unless otherwise indicated, all statutory references are to the Revised Statutes of Missouri 2000,
as updated by the 2013 Cumulative Supplement.

2
 In this appeal, Dwiggins does not challenge appeal the Commission's finding that he violated the
USPAP in his preparation of real estate appraisals.

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U.S.C. 3331-3351. The USPAP is an evolving set of professional standards

developed by the Appraisal Standards Board of the Appraisal Foundation, which is

authorized by the U.S. Congress as the independent source of appraisal standards

and appraiser qualifications. 12 U.S.C. 3332(a)(5) and (b).

      As implemented in Missouri, Section 339.535 provides: "State-certified real

estate appraisers, state-licensed real estate appraisers, and state-licensed appraiser

trainees shall comply with the Uniform Standards of Professional Appraisal Practice

promulgated by the appraisal standards board of the appraisal foundation."

Through its use of the word "shall," the legislature's clear intent is to mandate that

state-certified real estate appraisers comply with the USPAP. See Jackson-Mughal

v. Div. of Emp't Sec., 359 S.W.3d 97, 101 (Mo. App. 2011). Despite the State’s

adoption of these uniform standards in 1990, Dwiggins argues that neither the

legislature nor the Commission have taken further steps to approve or adopt more

recent editions of the USPAP. He therefore asserts that the 2012-2013 Edition of

the USPAP cannot serve as the basis for professional discipline under Missouri law.

This argument is without merit because the statute is not limited to a particular

edition or updated version of the USPAP. By its plain language, Section 339.535

requires Dwiggins, a state-certified real estate appraiser in Missouri, to comply with

any and all provisions of the USPAP as promulgated by the independent Appraisal

Standards Board of the Appraisal Foundation.




                                          4
      Missouri’s statutory framework further provides that a state-certified real

estate appraiser's failure to comply with the USPAP is cause for discipline by the

Commission. Section 339.532 provides, in relevant part:

      2. The commission may cause a complaint to be filed with the
      administrative hearing commission as provided by chapter 621 against
      any state-certified real estate appraiser . . . for anyone or any
      combination of the following causes:
                                         ...

      (7) Failure to comply with the Uniform Standards of Professional
      Appraisal Practice promulgated by the appraisal standards board of the
      appraisal foundation[.]
                                        ...

      3. After the filing of such complaint, the proceedings shall be
      conducted in accordance with the provisions of chapter 621. Upon a
      finding by the administrative hearing commission that the grounds,
      provided in subsection 2 of this section, for disciplinary action are
      met, the commission may . . . place the person named in the
      complaint on probation on such terms and conditions as the
      commission deems appropriate . . . or may suspend . . . the certificate
      or license . . . .

The legislature's intent is clear that a certified real estate appraiser can be

disciplined for violation of any provisions of the USPAP that are promulgated

under the authority of the Appraisal Foundation. Dwiggins makes no

argument that the 2012-2013 Edition of the USPAP was not properly

promulgated in this manner. Rather, he asserts that the updated standards

cannot be applied in Missouri unless specifically adopted by a legislative or

rulemaking procedure.



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      Dwiggins’s only support for this claim is Section 339.509, which

authorizes the Commission to adopt standards and promulgate regulations to

further define, explain, and interpret the USPAP. This statute, however,

does not obligate the Commission to formally adopt every provision or

edition of the USPAP that may provide grounds for disciplinary action. In

fact, such action by the Commission would be redundant of the state and

federal requirements to comply with the USPAP under Section 339.535 and

Title XI of FIRREA. Implementation of the USPAP is mandated under these

provisions, and no additional legislative action or rulemaking process is

required to enforce the uniform standards. Accordingly, the Commission did

not err in applying the USPAP, 2012-2013 Edition, to find that Dwiggins

was subject to professional discipline. We deny the point on appeal.

                                     CONCLUSION

      The Commission's decision is affirmed.




                                              ____________________________________
                                              LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




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