Foster v. Foster

• Decision Date: 17 May 2018
• Docket Number: No. 106173,106173
• Citation: 2018 Ohio 1961,113 N.E.3d 150
• Parties: Anthony FOSTER, Plaintiff–Appellant v. Eral M. FOSTER, et al., Defendants–Appellees
• Court: Ohio Court of Appeals

113 N.E.3d 150

2018 Ohio 1961

Anthony FOSTER, Plaintiff–Appellant

v.Eral M. FOSTER, et al., Defendants–Appellees

No. 106173

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: May 17, 2018

Mitchell L. Alperin, 29325 Chagrin Boulevard, Suite 305, Pepper Pike, Ohio 44122, ATTORNEY FOR APPELLANT.

Michael A. Heller, Mike Heller Law, L.L.C., 333 Babbit Road, Suite 233, Euclid, Ohio 44123, ATTORNEY FOR APPELLEES.

BEFORE: Celebrezze, J., McCormack, P.J., and Keough, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, Anthony Foster ("appellant"), appeals the grant of summary judgment in favor of defendants-appellees, Eral Foster ("Eral"), Velma Knight ("Knight"), and Cleveland Suburban Homes Realty Company (collectively "appellees"). Appellant argues that the trial court erred by granting appellees' summary judgment motion because a genuine issue of material fact exists regarding when the applicable statute of limitations began to run. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant matter arose from a dispute regarding a real estate transaction involving appellant's house, located at 3601 East 106th Street, Cleveland, Ohio. In September 2006, appellant contacted his brother Eral and retained appellees to represent him in the sale of his house. Eral participated in the transaction as appellant's agent, and Knight was involved in the transaction as a broker. The parties agreed that appellant would net a minimum of $35,000 from the sale.

{¶ 3} Appellees procured a buyer, Faruq Husam Adeen, in February 2007. Adeen agreed to purchase the house for $83,000 on the condition that appellant contributed $43,020 for repairs and updating. Appellant would net $35,000 from the transaction. Closing was set for February 28, 2007. Appellees advised appellant that Adeen was having issues obtaining the requisite financing.

{¶ 4} While Adeen was in the process of securing financing for the purchase, appellant obtained a buyer on his own that agreed to pay more than Adeen. Appellant asked Eral to terminate the agreement with Adeen. Eral advised appellant that the purchase agreement with Adeen could not be terminated unless Adeen was unable to obtain the requisite financing.

{¶ 5} Appellant's house sold on March 28, 2007. Appellant and his wife went to the title company, Heights Title, to sign the closing documents. Appellant alleges that he and his wife were rushed through the process of signing the documents without having an opportunity to review them.

{¶ 6} Eral picked up appellant's check and the closing documents from the title company and provided appellant a check for $25,000. Appellant discovered that Adeen was not listed as the buyer on the closing documents. Appellant asked Eral about the discrepancy with the buyer's name and also inquired why he received $25,000 rather than the $35,000 they had agreed upon. Eral asserted that the discrepancy was a clerical mistake and that the $10,000 shortage was based on outstanding utility bills and taxes. Eral purportedly agreed to give some of the money he earned from his commission to appellant. Eral did not provide the original closing documents to appellant and did not give a portion of his commission to appellant.

{¶ 7} Appellant filed a complaint with the Ohio Department of Commerce's Division of Real Estate and Professional Licensing on May 30, 2007 ("DOC complaint"). In the "Nature of Your Complaint" section, appellant alleged that Eral threatened him with a lawsuit, promised him something that was not in the contract, his agent was not loyal to him or his interests, did not provide an agency disclosure form to him, did not give him copies of paperwork that he signed or requested, lied to him about the transaction, discriminated against him or members of his family, did not deliver his offer or present an offer to him, changed a form or document without his permission, tried to sell the property without his consent, did not tell him that he had a relationship with the other party, and did not follow his instructions. Appellant provided the following details in support of his DOC complaint:

On or around September of 2006, I was in distress and needed to sell my house, so I contacted my brother Eral Foster because he has a realty company. The agreement was for me to get back $35,000 minus any liens & taxes, and the buyer was to pay all other costs involved with the [sale].

On January 18th, Joseph Sheppard * * * and I, sign a purchase agreement that I terminated because the buyer tried to low ball me.

On February 06, 2007, I sign a purchase agreement to sell my house to [Faruq] Adeen. The closing date was set for Feb. 28th. The week of closing [Eral] called me to inform me that the buyer was having trouble with the financing company. I then ask [Eral] if I could get out of the agreement because first, were [sic] not closing on time, and second I have another buyer that willing to pay ten thousand more for the property and one thousand earnest money. Eral's response to me was no! you can't, you have to wait until the buyer financing fell through, plus the buyer still wants the house.

Finally, on March 28, I go to the title company to sign closing documents. (all this time I think I'm still selling my house to [Adeen].) I notice the amount I was getting back was incorrect. The escrow officer quickly tried to explain that some item the amount was increased such as the water bill and county taxes. I didn't stop the transaction then because I didn't know I could and I was going to Eral's office the next day for an explanation, and because he and I had a verbal agreement that he would give me a break on his commission to make up the difference that I was short. When I got home from the title company, I reviewed the papers and realized that not only was the amount I received back was not correct but the buyer was also wrong.

The next day at Eral's office we received the check and Eral's response to why the shortage was the same as the escrow officers and he still insisted that [Adeen] was the buyer of the property. So when I asked about our verbal agreement to give me some money back off his commission he said he was busy right now but to give him some time to see what he could do. Still not satisfied I review all the papers and on the settlement statement the addition cost did not add up to my losses and Joseph Sheppard the first buyer who I did not and do not want to sell my house and [Ockington] the wrong buyer has the same address. Getting nowhere with Eral I consulted an attorney who advised me to ask the title company for a copy of the purchase agree-ment, which I did and discovered that without my consent or knowledge, on March 6, 2007 someone from [Eral's] office Cleveland–Suburban home Realty Co. entered into a new purchase agreement with a new buyer "Scott Ockington" and they forged my signature on this same document, then submitted the agreement to the title company. I tried to resolve this matter with Eral, several times by phone and in person and each time Eral [refused] to get out the original paper work involved with this and now he has no knowledge of our verbal agreement "he doesn't recall having said he was giving me money back from his commission." So this brings me to you.

{¶ 8} The Ohio Real Estate Commission (hereinafter "the Commission") held a hearing on appellant's allegations on April 6, 2011. The issue before the Commission was whether Eral Foster violated R.C. 4735.18 and whether he should be disciplined for any violations. The Commission concluded that Eral Foster violated R.C. 4735.18 during the sale of appellant's house. Specifically, the Commission determined, in relevant part, that Eral committed the following violations:

1. Failed to endeavor to maintain and establish high standards of professional conduct and integrity in dealings with members of the public as well as with fellow licensees and, further, seek to avoid even the appearance of impropriety in any activities as a licensee when after closing was scheduled with purchaser [Adeen], [Eral] prepared, agreed to prepare, presented, agreed to present, and/or executed a purchase contract with a different purchaser, Scott Ockington, for the subject property and closing then went forward with [Ockington] as the purchaser. This constitutes a violation of R.C. 4735.18(A)(6), misconduct, as it incorporates the Canons of Ethics, Section I, Article 1.

* * *3. Failed to exercise reasonable skill and care when [Eral] allowed [appellant], the seller, to enter into two concurrent purchase contracts for the same property with two differen[t] purchasers in violation of R.C. 4735.18(A)(9) as it incorporates R.C. 4735.62(A).

4. Engaged in misconduct when [Eral] provided purchaser [Ockington] a residential property disclosure form that was previously signed and dated by prior potential purchaser, Joseph Sheppard. This conduct is in violation of R.C. 4735.18(A)(6).

5. Failed to keep complete and accurate records of the transaction for a period of three years from the date of the transaction in violation of R.C. 4735.18(A)(24).

6. Prior to presenting [Adeen's] purchase offer, failed to present and/or have [appellant], the seller of the subject property, sign an agency disclosure statement in violation of R.C. 4735.18(A)(6), misconduct, as that section incorporates R.C. 4735.58(A).

Ohio Real Estate Commission's April 14, 2011 Adjudication Order.

{¶ 9} The sanctions imposed by the Commission were challenged by Eral and Knight and subsequently reversed on procedural grounds. See Ohio Div. of Real Estate & Professional Licensing v. Foster , Cuyahoga C.P. No. CV–11–754631; Ohio Div. of Real Estate & Professional Licensing v. Knight, Cuyahoga C.P. No. CV–11–754470; Ohio Div. of Real Estate v. Knight , 8th Dist. Cuyahoga No. 98160, 2013-Ohio-2896, 2013 WL 3421836.

{¶ 10} On January 15, 2013, in Cuyahoga C.P. No....