Lorms v. State Dept. of Commerce, Div. of Real Estate

• Decision Date: 08 December 1976
• Docket Number: No. 76-417,76-417
• Citation: 357 N.E.2d 1067,48 Ohio St.2d 153,2 O.O.3d 336
• Parties: , 2 O.O.3d 336 LORMS, Appellant, v. The STATE of Ohio, DEPT. OF COMMERCE, DIV. OF REAL ESTATE, Appellee.
• Court: Ohio Supreme Court

Page 153

48 Ohio St.2d 153

357 N.E.2d 1067, 2 O.O.3d 336

LORMS, Appellant, v. The STATE of Ohio, DEPT. OF COMMERCE, DIV. OF REAL ESTATE, Appellee.

No. 76-417.

Supreme Court of Ohio.

Dec. 8, 1976.

Syllabus by the Court

An agency's omission of items from the certified record of an appealed administrative proceeding does not require a finding for the appellant, pursuant to R.C. 119.12, when the omissions in no way prejudice him in the presentation of his appeal.

Appellant, Paul E. Lorms, applied to appellee, The State of Ohio, Department of Commerce, Division of Real Estate (hereinafter referred to as the Ohio Real Estate Commission), in July of 1974, to become a licensed real-estate broker. The commission rejected his application on the grounds that Lorms did not have 'sufficient experience' to qualify him to take a broker's examination pursuant to R.C. 4735.07.

Appellant then requested a public hearing on his application. At that hearing, he introduced as evidence a number of documents, including letters from two business associates who apparently had knowledge of his achievements as a salesman of electrical equipment and of his general selling ability. Subsequent to the public hearing, the commission reaffirmed its denial of Lorms' application.

Appellant appealed the commission's second rejection of his application to the Court of Common Pleas. Pursuant to R.C. 119.12, the commission certified the record of its administrative proceedings to the court. However, it failed to include in the record the two letters from appellant's business associates.

Lorms then moved for a finding in his favor on the ground that the commission had failed to certify the 'complete record' as required by R.C. 119.12. The Court of Common Pleas found the letters to be adequately summarized in the record and overruled the motion.

Lorms appealed that ruling to the Court of Appeals, which affirmed the trial court on the authority of Checker Realty v. Ohio Real Estate Comm. (1974), 41 Ohio App.2d 37, 322 N.E.2d 139. Because the decision of the Court of Appeals was in conflict with a determination of the Court of Appeals for Union County in Young v. Bd. of Review (1967), 9 Ohio App.2d 25, 222 N.E.2d 789, the record was certified to this court for review and final determination.

Walter W. Grelle, Jr., and Robert C. Paxton, II, Columbus, for appellant.

William J. Brown, Atty. Gen., and Patrick V. Kerrigan, Columbus, for appellee.

WILLIAM B. BROWN, Justice.

The main issue raised in this cause is whether the nonprejudicial omission of two letters from the certified record of an appealed administrative hearing mandates a finding in favor of the appellant pursuant to R.C. 119.12.

R.C. 119.12 provides, in pertinent part:

'Within twenty days after receipt of notice of appeal from an order in any case wherein a hearing is required by sections 119.01 to 119.13, inclusive, of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed shall, upon motion, cause the court to enter a finding in favor of the party adversely affected.'

Appellant argues that, under R.C. 119.12, 'there can only be one consequence as the result of an incomplete record on appeal.' In so contending, he argues, in effect, that even nonprejudicial omissions from the record mandate a finding in his favor under R.C. 119.12. ¹

That argument is not well taken. R.C. 119.12 only mandates a finding for the party 'adversely affected' by an agency's failure to certify a 'complete record's within the prescribed time.

To rule that appellant must be granted a finding in his favor even though the omissions in the record are not prejudicial would require this court to ignore the statutory phrase 'adversely affected,' to apply a 'technical and strict construction' of R.C. 119.12 which has been criticized in past cases, and to ignore that R.C. 119.12 is remedial in nature and should, therefore, be given a liberal construction designed to 'assist the parties in obtaining justice' under R.C. 1.11. (See McKenzie v. Racing Comm. (1966), 5 Ohio St.2d 229, 231, 215 N.E.2d 397, 399.)

We, therefore, hold with the Court of...