[Cite as Singer v. Petit, 2013-Ohio-1971.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
DAN R. SINGER                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellant    :       Hon. Sheila G. Farmer, J.
                                                :
-vs-                                            :
                                                :       Case No. 2012-CA-43
ANNE M. PETIT                                   :
                                                :
                      Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Fairfield County Court
                                                    of Common Pleas, Case No. 2012-CV-
                                                    00654


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             May 13, 2013



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

RAY R. MICHALSKI                                    CHERYL R. HAWKINSON
222 South Broad Street                              KEITH O’KORN
Lancaster, OH 43130                                 Assistant Attorneys General
                                                    30 East Broad St, 26th Floor
                                                    Columbus, OH 43215
[Cite as Singer v. Petit, 2013-Ohio-1971.]


Gwin, P.J.

        {¶1}     Appellant Dan Singer appeals the July 27, 2012 judgment entry of the

Fairfield County Court of Common Pleas.

                                             Facts & Procedural History

        {¶2}     Appellant is a licensed Ohio general real estate appraiser. Appellee is

Anne Petit, the Superintendent, Ohio Division of Real Estate and Professional

Licensing. On July 2, 2009, the Ohio Real Estate Appraiser Board (“Board”) issued an

order affirming a hearing officer’s report and recommendation finding appellant violated

several Uniform Standards of Procedure Appraiser Practices (“USPAP”) and the

conduct section of the ethics rule. The Board imposed a $2,500 civil penalty, imposed

additional continuing education requirements, and suspended appellant’s license for

120 days.

        {¶3}     Appellant appealed the Board’s decision to the Fairfield County Common

Pleas Court. The trial court found some of appellant’s arguments to be well-taken,

finding appellant’s conduct could not be interpreted as a misrepresentation with the

intent to benefit him, appellant’s use of another appraisal was not misleading under the

circumstances, and there was no lack of reasonable diligence by appellant. However,

the trial court found appellant’s failure to disclose his use of a previous appraisal report

contributed to the failure of the recipient to be able to use the report as intended and

constituted a failure to use a recognized technique in reporting the results of any type of

research. The trial court concluded “as a whole, the Hearing Officer’s conclusions of

law and so the Board’s decision adopting those conclusions were in accordance with

law.” Appellee agreed to stay imposition of the sanctions pending appellant’s appeal.
Fairfield County, Case No. 2012-CA-43                                                    3

This court affirmed the trial court’s decision on August 25, 2011 in Singer v. Davids 5th

Dist. No. 10-CA-55, 2011-Ohio-4434. Appellant did not assign as error or argue any

issues regarding the sanctions imposed by the Board.           The Ohio Supreme Court

declined jurisdiction to hear appellant’s case and also declined to consider appellant’s

motion for reconsideration.

        {¶4}   After appellant’s appeals were exhausted, appellee informed appellant the

sanctions would go into effect on May 1, 2012.         Appellant then filed a motion for

modification of sanctions with the Board.      Appellee again stayed the imposition of

sanctions until the Board held a hearing on the motion. At a hearing on May 31, 2012,

the Board voted to decline to entertain appellant’s motion to modify and entered an

order to that effect on June 5, 2012. Appellee notified appellant on June 5, 2012 in a

letter that his suspension would commence August 1, 2012, the fine was due August 6,

2012, and his additional coursework had to be completed by December 5, 2012.

Appellant filed an administrative appeal with the Fairfield County Common Pleas Court

from the order of the Board declining to entertain a motion to modify the sanctions. The

trial court dismissed appellant’s administrative appeal in a judgment entry on July 27,

2012.

        {¶5}   Appellant filed an appeal of the trial court’s July 27, 2012 judgment entry

and raises the following assignment of error on appeal:

        {¶6}   “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN DISMISSING

APPELLANT’S ADMINISTRATIVE APPEAL IN THIS CASE.”

        {¶7}   We will not reverse the trial court’s judgment in this case unless the trial

court abused its discretion in upholding the agency’s order. Pons v. Ohio State Med.
Fairfield County, Case No. 2012-CA-43                                                     4

Bd., 66 Ohio St.3d 619, 614 N.E.2d 748 (1993). “Absent an abuse of discretion on the

part of the trial court, a court of appeals may not substitute its judgment for those of the

* * * board or a trial court.” Id. The Supreme Court of Ohio has repeatedly held the term

abuse of discretion implies the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶8}   Appellee argues the trial court was correct in dismissing the administrative

appeal because appellant failed to raise the issue of sanctions with the trial court in the

previous administrative appeal and failed to assign the issue of sanctions in the Singer

v. Davids appeal with this court. We agree.

       {¶9}   The law of the case doctrine provides that the “decision of a reviewing

court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984). A “decision of an appellate court in a

prior appeal will ordinarily be followed in a later appeal in the same case and court.” Id.

The law of the case doctrine is necessary to ensure consistency of results in a case, to

avoid endless litigation by settling the issues, and to preserve the structure of superior

and inferior courts as designed by the Ohio Constitution. Id.

       {¶10} Appellant cites Bonham v. McConnell and Rossiter v. Ohio State Med. Bd.

for the proposition that the current case is a proper appeal pursuant to R.C. 119.12. 45

Cal.2d 304, 288 P.2d 502; 10th Dist. No. 01AP1252, 2002-Ohio-2017. However, in

both cases cited by appellant, the trial court in the original appeal of the agency’s

adjudication order found some of the violations not supported and remanded the matter

back to the agency for reconsideration of the sanction. The cases cited by appellant are
Fairfield County, Case No. 2012-CA-43                                                     5


distinguishable from this case because here, the trial court did not remand the matter

back to the Board and appellant did not argue in his appeal to this court that the

sanctions imposed were not supported by reliable, probative, and substantial evidence

and in accordance with the law.

       {¶11} In appellant’s original appeal of the Board’s decision, the trial court found

some of appellant’s arguments to be well-taken, determining the conclusions of law

regarding misrepresentation with intent to benefit appellant, misleading by using another

appraisal, and lack of reasonable diligence were not supported by reliable, probative

evidence. The trial court found appellant’s failure to disclose his use of a previous

appraisal report contributed to the failure of the recipient to be able to use the report as

intended and constituted a failure to use a recognized technique in reporting results.

The trial court concluded “as a whole, the Hearing Officer’s conclusions of law and so

the Board’s decision adopting those conclusions were in accordance with law.”

       {¶12} Appellant filed an appeal of the trial court’s decision with this court,

arguing that the trial court abused its discretion because: there was no evidence the

bank could not use appellant’s appraisal report, there is no professional requirement

that an appraisal “use their own words,” and there was no evidence the bank

misunderstood its contents. In Singer v. Davids, we analyzed the arguments of the

parties, found appellant’s contentions to be without merit, and affirmed the judgment of

the trial court. The Supreme Court of Ohio declined jurisdiction of the case and further

denied a motion for reconsideration. Thus the question of whether the Board’s order

sanctioning appellant was supported by reliable, probative, and substantial evidence

and was in accordance with law was fully litigated and settled. Pursuant to the law of
Fairfield County, Case No. 2012-CA-43                                                   6

the case doctrine, our decision in Singer v. Davids remains the law of this case on the

legal questions involved for all subsequent proceedings in the case.

       {¶13} Here, for the first time in these proceedings, appellant asserts the

sanctions imposed by appellee should be modified by the Board. If appellant wanted to

argue the sanctions were disproportionate to the trial court’s finding or were not

supported by reliable, probative, and substantive evidence or in accordance with law, he

could have made the argument at the trial court level by requesting a remand to the

Board after the trial court issued its original decision or by assigning the trial court’s

failure to modify the sanctions or remand to the Board to modify the sanctions based on

the trial court’s decision as an error in the Singer v. Davids appeal. Appellant did not

assert this argument during the previous administrative appeal at the trial court level,

during the prior appeal to this court, or as a basis for reconsideration thereof.

Accordingly, based on the law of the case doctrine, appellant is precluded from

asserting an argument in this appeal that could have been raised, but was not, during

the first appeal.
Fairfield County, Case No. 2012-CA-43                                                  7


      {¶14} For the foregoing reasons, we find the trial court did not abuse its

discretion in dismissing appellant’s administrative appeal. The judgment of the Fairfield

County Common Pleas Court is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. SHEILA G. FARMER




WSG:clw 0425
[Cite as Singer v. Petit, 2013-Ohio-1971.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


DAN R. SINGER                                     :
                                                  :
                            Plaintiff-Appellant   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ANNE M. PETIT                                     :
                                                  :
                                                  :
                         Defendant-Appellee       :       CASE NO. 2012-CA-43




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Fairfield County Common Pleas Court is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
