Alban v. Ohio Real Estate Com'n

• Decision Date: 23 June 1981
• Citation: 2 OBR 524,2 Ohio App.3d 430,442 N.E.2d 771
• Parties: , 2 O.B.R. 524 ALBAN, Appellant, v. OHIO REAL ESTATE COMMISSION et al., Appellees. *
• Court: Ohio Court of Appeals

Page 430

2 Ohio App.3d 430

442 N.E.2d 771, 2 O.B.R. 524

ALBAN, Appellant, v. OHIO REAL ESTATE COMMISSION et al., Appellees. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

June 23, 1981.

Syllabus by the Court

1. The mere omission of an item from the certified record of the proceedings of an administrative agency upon the appeal of one of its decisions does not require a reversal of the order pursuant to R.C. 119.12, where that which has been omitted in no way prejudices the appellant in the presentation of his appeal. (Checker Realty Co. v. Ohio Real Estate Comm., 41 Ohio App.2d 37, 322 N.E.2d 139 , followed.)

2. A person holding a real estate license is held to a higher standard of competency and fairness than is a lay member of the public in the market place.

3. The license granted by the state to individuals acting as real estate brokers imposes a duty to conform to the statutory standards set forth in R.C. Chapter 4735.

Christopher T. Cline, Columbus, for appellant.

William J. Brown, Atty. Gen., and Michael Squillace, Asst. Atty. Gen., for appellees.

STRAUSBAUGH, Presiding Judge.

This is an appeal by appellant, Larry E. Alban, from a judgment of the common pleas court finding that the order of the Ohio Real Estate Commission is supported by reliable, probative and substantial evidence and is in accordance with law and therefore affirming said order.

The record indicates that in the latter half of 1979 Jeffrey and Tonya Carroll wished to sell their house because they planned to move to Indiana for business reasons. They had been to other realtors before contacting appellant, Larry E. Alban. On September 19, 1979, they telephoned Larry Alban Realty Company and talked with a salesperson, Brenda Large, who came to look at the home, along with appellant's office manager, Robert Fowler. The Carrolls wanted to sell quickly and not list it with a realtor but rather as a direct sale in the form of a "buy out." The Carrolls had already written to the Veterans Administration where they had the loan and ordered a loan assumption package. Following the call to appellant, Brenda Large and Robert Fowler visited the Carroll home. After inspecting the home and following discussion, appellant's employees indicated that Alban would probably be interested in purchasing the home and would probably pay between $6,200 to $6,500 for the Carrolls' equity in the home depending upon the loan balance owed by the Carrolls, which would not be known until the closing package was received from the Veterans Administration.

A few days later Brenda Large brought Larry Alban to the house and they both looked at it. Appellant stated that he would like to buy the house but he would have to check with his banker first. He told the Carrolls that if he got the loan the Carrolls should not make any payments on the loan because it would "mess up the loan assumption." Mr. Carroll testified that appellant and Brenda Large said that "we couldn't sign a contract because we didn't have the exact figures, and I just took it at that." He further stated that a few days later Brenda Large called and said that Alban had talked to his banker and had obtained the loan and was going to buy the house and that, as soon as the information on the exact figures came from the Veterans Administration, "to call them and let them know and they would take it from there." It was further agreed that the Carrolls would leave a wood stove in the house, leave track lighting in the basement and reinstall two kitchen cupboards.

Meanwhile, Mr. Carroll's Indiana job offer did not materialize, which changed the Carrolls' plans for moving out of the state. Thereupon, the Carrolls called Brenda Large and asked if the appellant was still going to buy the house. When she stated that he was, the Carrolls entered into a one-year lease for an apartment and moved from the house into said apartment. Thereafter, Brenda Large called Mrs. Carroll and stated that Larry Alban would like to come over and look at the house again. Whereupon, Mrs. Carroll asked if Alban still wanted to buy the house. Brenda Large said that he still wanted to buy the house. Mrs. Carroll said to have him call and make an appointment to look at the house. Mr. Carroll stated that they never heard from him even though they have an answering service on the telephone.

Mr. Carroll testified that approximately a week later Brenda Large called and stated that Larry Alban did not want to buy the house any more. Mr. Carroll stated that he and his wife then contacted the State Board of Realtors, following which the Carrolls talked to Mr. Alban on a Friday evening:

" * * * He told us that he didn't want to be intimidated, that he was going to buy the house, that he was going to give us $6,500 for it, but the points had gone up, and this, and prices, and he decided he wasn't going to buy it.

" * * * It was kind of strained relations there at first, and then after we talked it kind of got down to where we were on more compatible speaking terms, and he says, I'll tell you what, I'll come out and look at the house again on Saturday. So, Saturday he came out. We had a few people at the house at the time. He came out with Bob Fowler and looked at the house again, and told Tonya that he was going to talk to his banker again. She said okay.

"Monday, sometime during the day, he called my wife at work and said that he had spoken to Art Colson at the State Board of Realtors and he explained the situation to him and that Art Colson said that we didn't have a case, and that's what he told us. Then he says, I'm not buying the house.

"So, at that time, we came to the State Board of Realtors and filed a complaint."

Following the call from Brenda Large stating that Alban was not going to buy the house, Mr. Carroll stated he called the Veterans Administration the next morning and after much effort obtained the exact loan balance figure by telephone. Mr. Carroll stated that Brenda Large had stated that Mr. Alban was going to buy the house for $6,500 over the loan assumption. Mr. Carroll further stated that, although appellant had never stated this before, appellant stated that he was not going to buy the house, that he "had agreed to go the loan assumption for $6,500," and that he knew exactly what the loan balance was but wanted out of the agreement because of points and prices going up.

Mrs. Carroll testified that they talked about writing a contract, but that Mr. Alban stated he wanted to wait and talk to his banker "and then we agreed to go ahead and wait on the figures." She further testified that it was her interpretation that the Carrolls would get $6,500 and Mr. Alban was going to assume the loan. She stated that after the four of them discussed it, they agreed not to put the contract in writing until the package containing the final payoff figure came.

Brenda Large testified that she told the Carrolls that Larry made an offer of $6,500 but that she at no time said that Larry was definitely buying the house and that she did not tell them to absolutely stop making house payments. She agreed with the testimony of the Carrolls as to the repairs which Mr. Alban wanted made. She stated that Mr. Alban had instructed her to offer the Carrolls $6,500 free and clear, and to inform them that he would assume the mortgage and for her to make the offer to the Carrolls orally, which she did.

At the hearing, appellant Alban stated that he did not wish to be sworn in and did not wish to testify.

In his closing statement at the conclusion of the hearing, Mr. Alban admitted, through Brenda Large, that he orally offered to purchase the Carroll property with certain stipulations, but that he did not have a written offer when Brenda Large made the offer to the Carrolls. Mr. Alban also stated that it is usually standard procedure when an offer is made on a piece of real property to have that offer in writing.

In its decision, the common pleas court found in part:

"First, was there an oral contract between the appellant and complainants for purchase of real property of complainants by appellant? There is ample evidence from which appellee could reach the conclusion that a contract between competent parties had been concluded and that discrepancies as to closet doors, one dirty wall and formal production of Veterans Administration documents, the contents of which were known to appellant and complainants when the bargain was struck, were all matters not material to the contract.

"Secondly, it is urged that a contract for the conveyance of an interest in real property is required by Section 1335.05 ORC. To this, the parties and the Court agree. The Court further finds, from ample case authority, that an oral contract is either voidable or unenforceable at the option of the party sought to be charged in a legal action.

"Thirdly, it is the Court's opinion that in Ohio, when a party to an oral contract for the sale of real property has substantially and to his detriment, changed his position in reliance upon the contract, the contract is removed from the operation of the statute of frauds.

"On this latter proposition, there is a conflict of evidence as shown by the testimony of the two complainants. At page 32 of the transcript Jeff Carroll states that complainants left their home because they believed appellant had purchased it. At pages 52-53 of the transcript, Tonya Carroll said the same but on page 38 of the transcript, we find Jeff Carroll saying they didn't return to their home after a second change of plans kept them in Columbus and after being advised appellant was not going to buy their property, because his work didn't leave him with time to care for a residential property.

"However, the evidence on the point is reliable, probative and substantial and appellee chose to believe complainants' move from their home as a change made in reliance on the contract with appellant, as appellee has every right in law to...