Nye v. Ohio Bd. of Examiners of Architects

• Decision Date: 02 March 2006
• Docket Number: No. 05AP-833.,05AP-833.
• Citation: 847 N.E.2d 46,2006 Ohio 948,165 Ohio App.3d 502
• Parties: NYE, Appellant, v. OHIO BOARD OF EXAMINERS OF ARCHITECTS, Appellee.
• Court: Ohio Court of Appeals

Page 46

847 N.E.2d 46

165 Ohio App.3d 502

2006-Ohio-948

NYE, Appellant, v. OHIO BOARD OF EXAMINERS OF ARCHITECTS, Appellee.

No. 05AP-833.

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

Decided March 2, 2006.

Clark, Perdue, Arnold & Scott Co., L.P.A., James E. Arnold, and Glen R. Pritchard, Columbus, for appellant.

Jim Petro, Attorney General, and Barry D. McKew, Assistant Attorney General, for appellee.

PEGGY L. BRYANT, Judge.

{¶ 1} Appellant, Mark A. Nye, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the state of Ohio Board of Examiners of Architects that revoked appellant's certificate of qualification to practice architecture in Ohio. Appellant assigns a single error:

The trial court erred in failing to reverse the decision of the State of Ohio Board of Examiners of Architects because the Board erroneously deemed Appellant's admissions, contained within a confidential agreement entered into in connection with the settlement of an unrelated civil matter, to be binding and irrefutable evidence of profession misconduct.

Because the board did not err in applying the doctrine of collateral estoppel, we affirm.

{¶ 2} In May 1999, Redeemer Lutheran Church ("RLC") entered into contracts with CM Architects, Inc. ("CMA") and CM Architects & Master Builders, Inc. ("CMB"), corporations that appellant owned and operated. Pursuant to the contracts, appellant was to design, improve, and expand the church for a total cost of $638,000. Construction began in June, and over the next few months, RLC paid appellant $532,583, or 80 percent of the contract price. In December, a dispute about the progress payment schedule prompted CMB to pull its workers and equipment from the construction site.

{¶ 3} RLC filed two lawsuits against appellant, CMA, and CMB in the Franklin County Court of Common Pleas, alleging fraudulent transfer of assets, misstatements made with fraudulent intent, and fraudulent actions involving the creation of corporations for illegal purposes and breach of contract. The cases were consolidated, and in December 2002, RLC and appellant entered into a settlement agreement in which appellant admitted to all the allegations contained in RLC's two complaints. Particularly relevant here, appellant specifically admitted to fraud, fraudulent transfers, and conduct preventing the discharge of debt under the bankruptcy code.

{¶ 4} The settlement agreement, by its very terms and by court order, was incorporated into an agreed judgment entry that the common pleas court issued. In addition to incorporating the terms of the settlement agreement, the entry awarded RLC $110,000 on its claims against appellant and expressly stated that the entry "constitutes a finding of fact and law regarding the substantive merits of each of [RLC's] underlying claims."

{¶ 5} On August 6, 2003, RLC filed a complaint with the board requesting that the board revoke or suspend appellant's license to practice architecture because appellant had committed various acts of fraud, deceit, and misconduct in renovating RLC's church. After the board received RLC's complaint against appellant, it began an investigation into the allegations and subpoenaed the settlement agreement. Based exclusively on the information contained in the settlement agreement, the board notified appellant that the board was taking action against his certificate of qualification to practice architecture.

{¶ 6} Pursuant to R.C. Chapter 119, appellant requested and received an administrative hearing. On June 3, 2004, and July 13, 2004, the hearing officer conducted a hearing that included the testimony of Chad Holland, the board's investigator, Allan Debelak, Pastor of RLC, and appellant. Among the documentary evidence admitted during the hearing were the agreed judgment entry, the settlement agreement, and the complaints that RLC had filed against appellant in the common pleas court.

{¶ 7} Based on the evidence, the hearing officer issued a report and Recommendation in which he found that appellant had violated Ohio Adm.Code 4703-3-07(E)(3) by failing to act in the best interests of RLC, by falsely inflating the assets and net worth of his architecture company, by sheltering his assets to avoid the reach of RLC, and by failing to abide by the terms of the settlement agreement. The hearing officer further concluded that appellant's actions violated R.C. 4703.15(B) and 4703.151.

{¶ 8} Premised on the noted violations, the hearing officer recommended that the board suspend appellant's architecture license indefinitely and for a period of not less than one year, but to hold in abeyance all but 30 days of that suspension provided appellant complete continuing education courses and honor his restitution agreement with RLC. The board issued an order adopting the findings of fact, conclusions of law, and summary of conclusions in the hearing officer's report and recommendation, but the board rejected the hearing officer's recommendation and instead revoked appellant's license to practice architecture.

{¶ 9} Pursuant to R.C. 119.12, appellant appealed the board's order to the Franklin County Court of Common Pleas. The common pleas court affirmed the board's order, finding it to be supported by reliable, probative, and substantial evidence and in accordance with law. Appellant appeals, contending that the common pleas court should have reversed the board's order.

{¶ 10} Under R.C. 119.12, when a common pleas court reviews an order of an administrative agency, the common pleas court must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111, 17 O.O.3d 65, 407 N.E.2d 1265. The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'" Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, 2 OBR 223, 441 N.E.2d 584, quoting Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280, 58 O.O. 51, 131 N.E.2d 390. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency generally are not conclusive. Conrad, 63 Ohio St.2d at 111, 17 O.O.3d 65, 407 N.E.2d 1265.

{¶ 11} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748, rehearing denied, 67 Ohio St.3d 1439, 617 N.E.2d 688. The appellate court is to determine only whether the common pleas court abused its discretion. Id. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Pons, supra. An appellate court does, however, have plenary review of purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, 784 N.E.2d 753, at ¶ 15.

{¶ 12} Here, appellant contends that the common pleas court erred in affirming the board's order that improperly applied the doctrine of res judicata and deemed appellant's admissions in the settlement agreement in the previous civil matter to be conclusively binding evidence in the proceedings before the board. Because the applicability of res judicata is a question of law, this court utilizes a de novo standard of review. Prairie Twp. Bd. of Trustees v. Ross, Franklin App. No. 03AP-509, 2004-Ohio-838, 2004 WL 344158, at ¶ 12.

{¶ 13} The doctrine of res judicata includes two separate concepts: (1) claim preclusion, historically called estoppel by judgment, and (2) issue preclusion, traditionally called collateral estoppel. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226. Relevant to this appeal, the doctrine of collateral estoppel provides that an issue or a fact that was fairly, fully, and necessarily litigated and determined in a prior action may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different. State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-Ohio-6322, 779 N.E.2d 216, at ¶ 16. Collateral estoppel applies when (1) the fact or issue was actually and directly litigated in the prior action, (2) the fact or issue was passed upon and determined by a court of competent jurisdiction, and (3) the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action. Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917, citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, paragraph two of the syllabus.

{¶ 14} Before we address the specifics of appellant's argument, we first note that the agreed judgment entry was issued by the Franklin County Court of Common Pleas, a court of competent jurisdiction. Moreover, because appellant's factual admissions were incorporated into the agreed judgment entry, RLC's civil action is deemed actually litigated and determined. Columbus v. Alden E. Stilson & Assoc. (1993), 90 Ohio App.3d 608, 616, 630 N.E.2d 59; Horne v. Woolever (1959), 170 Ohio St. 178, 10 O.O.2d 114, 163 N.E.2d 378; Sponseller v. Sponseller (1924), 110 Ohio St. 395, 144 N.E. 48; cf. Kissinger v. Pavlus, Franklin App. No. 01AP-1203, 2002-Ohio-3083, 2002 WL 1013085, at ¶...