Starr v. Ohio Department of Commerce Division of Real Estate & Professional Licensing

• Decision Date: 30 June 2021
• Docket Number: 20AP-47
• Parties: Rick E. Starr, Appellant-Appellant, v. Ohio Department of Commerce Division of Real Estate & Professional Licensing, Appellee-Appellee.
• Court: Ohio Court of Appeals

2021-Ohio-2243

Rick E. Starr, Appellant-Appellant, v. Ohio Department of Commerce Division of Real Estate & Professional Licensing, Appellee-Appellee.

No. 20AP-47

Court of Appeals of Ohio, Tenth District

June 30, 2021

APPEAL from the Franklin County Court No. 19CV-5149 of Common Pleas

On brief: Maguire Schneider Hassay, LLP, and Mark R. Meterko for appellant. Argued: Mark R. Meterko.

On brief: Dave Yost, Attorney General, and Hilary R. Damaser for appellee. Argued: Hilary R. Damaser.

DECISION

BROWN J.

{¶ 1} Appellant, Rick E. Starr, appeals from a judgment of the Franklin County Court of Common Pleas affirming an adjudication order of appellee, the Ohio Real Estate Commission ("Commission"). For the reasons which follow, we affirm.

{¶ 2} Appellant was a real estate salesperson licensed by the Ohio Department of Commerce, Division of Real Estate and Professional Licensing ("Division"). Ricardo Easley owned a condominium located at 2985 Grandwoods Circle Dublin, Ohio ("Grandwoods property" or "the property"). In 2016, appellant's employee contacted Easley regarding the Grandwoods property and arranged for Easley to meet appellant.

{¶ 3} Appellant met Easley at the property on April 25, 2016. Easley informed appellant it was his intention to do a short sale^[1] on the property. Easley was behind on his mortgage payments for the property, and appellant informed Easley that a short sale "would be a quick solution to selling [his] property." (Hearing Tr. at 93.) Easley also showed appellant various repairs the property needed, and informed appellant he would like to sell the property with "no money out of [his] pocket." (Hearing Tr. at 124.) Appellant told Easley he could move contractors into the Grandwoods property and have the contractors complete the needed repairs in lieu of rent.

{¶ 4} Appellant and Easley executed an exclusive right to sell listing contract and a Multiple Listing Service ("MLS") residential work sheet by hand at their April 25, 2016 meeting. The exclusive right to sell contract granted appellant and appellant's brokerage, Realty World, the exclusive right to sell the Grandwoods property from April 25, 2016 to April 25, 2018, and provided that Easley would pay appellant's brokerage 10 percent of the selling price of the property. The MLS residential work sheet stated that the list price for the Grandwoods property would be $114, 900. Appellant listed the Grandwoods property for sale on the MLS on April 26, 2016. Appellant originally listed the property for $114, 900 but then increased the list price to $119, 000.

{¶ 5} On April 27, 2016, appellant and Easley executed an agency disclosure statement and a real estate purchase contract electronically. The purchase contract stated that TRST, LLC ("TRST) would purchase the Grandwoods property from Easley for $82, 000. The agency disclosure statement identified appellant as a member of TRST. The purchase was "contingent upon the seller's lender approving of a short sale on this property." (State's Ex. I.) The purchase contract provided that TRST could rent the property from Easley for $1 per month through the time of closing and "sublease the property if desired." (State's Ex. I.) On May 4, 2016, appellant sent Easley a check for $8 as payment for eight months rent at the Grandwoods property. Easley did not cash the check.

{¶ 6} On May 1, 2016, appellant signed a residential property management agreement on behalf of TRST. The agreement identified TRST as the owner of the Grandwoods property. Through the agreement, TRST hired Real Estate Stars Property Management to manage the property. Appellant owned Real Estate Stars Property Management.

{¶ 7} On May 16, 2016, Jared Gibbons and his fiancée Rosa Krichbaum executed a month-to-month lease agreement for the Grandwoods property. The lease identified TRST as the lessor of the property. Kim Forrester, appellant's employee, signed the lease agreement on behalf of TRST. The lease specified that the monthly rent of $1, 070 was payable to Real Estate Stars Property Management.

{¶ 8} On May 26, 2016, appellant and Easley signed a residential property management agreement for the Grandwoods property electronically. The May 26, 2016 property management agreement similarly employed Real Estate Stars Property Management to manage the Grandwoods property, but identified both Easley and TRST as owners of the Grandwoods property. Easley stated that he signed the documents appellant sent to him without reading them because he believed appellant was his "agent" and acting in Easley's "best interests." (Hearing Tr. at 159-60.)

{¶ 9} Although Gibbons and Krichbaum were not contractors, Gibbons did "cosmetic" work on the Grandwoods property in exchange for credit toward rent. (Hearing Tr. at 193.) Gibbons explained that he "patch[ed] the walls, paint[ed], fix[ed] cabinets[.] * * * Just the basic all-around maintenance." (Hearing Tr. at 193.) Forrester instructed Gibbons to submit a bill for the work he performed on the property to Alliance Home Services Property Management ("Alliance Home Services"). Appellant owned Alliance Home Services.

{¶ 10} Easley discovered that Gibbons and Krichbaum were living in the Grandwoods property when he drove by the property and saw people inside. Easley went to the door and identified himself as the property owner. Gibbons informed Forrester that an individual named Easley had stopped by the property and identified himself as the owner. Forrester told Gibbons "not to talk to [Easley]" and that Easley did not "have any rights in the property." (Hearing Tr. at 214.) Gibbons believed appellant or appellant's company owned the Grandwoods property.

{¶ 11} In the middle of June 2016, Gibbons and Krichbaum were instructed to show the Grandwoods property to "investors" who were considering "buy[ing] the property." (Hearing Tr. at 216.) However, when the tenants showed the property as instructed, they discovered the individuals looking at the property were not investors. Gibbons then looked on the Franklin County Auditor's website and discovered that Easley was listed as the owner of the Grandwoods property.

{¶ 12} Easley eventually provided Gibbons with a letter stating that appellant "had been fired from any kind of agreement" regarding the Grandwoods property. (Hearing Tr. at 218-19.) Gibbons and Krichbaum moved out of the property in early September 2016. Appellant eventually sent Easley an invoice from Alliance Home Services for repairs made to the Grandwoods property. Easley did not pay the bill. TRST never purchased the property from Easley.

{¶ 13} Easley filed a complaint against appellant with the Division. Division Investigator Sandra Gagle investigated the complaint. On September 21, 2018, the Division sent appellant a notification of formal hearing. The notification informed appellant that the Division's investigation revealed reasonable and substantial evidence of acts in violation of R.C. Chapter 4735 and that, if the violations were proven, disciplinary action could be taken against appellant's license. The notification identified four specific charges against appellant.

{¶ 14} On February 4, 2019, a hearing examiner held a hearing on the charges. Counsel for the Division presented testimony from Gagle, Easley, and Gibbons along with documentary evidence. Appellant appeared at the hearing pro se. Appellant cross-examined the Division's witnesses, but did not testify or present any evidence.

{¶ 15} The hearing examiner issued a report on March 22, 2019 containing findings of fact and conclusions of law. While the hearing examiner found it "not believable that Easley would rely on a person [appellant] whom he just met * * * without paying more attention to the documents that were presented to him," the hearing examiner found that appellant "acted improperly" as he "blurred the lines and overreached" and "failed to properly represent Easley's interests." (Hearing Examiner Report at 14.) The hearing examiner concluded that appellant committed the violations as alleged in the notification of formal hearing. Appellant filed objections to the hearing examiner's report.

{¶ 16} The hearing examiner's report went before the Commission for review on June 5, 2019. Appellant did not appear for the hearing. The Commission moved to adopt the hearing examiner's findings of fact and conclusions of law and to revoke appellant's real estate salesperson license and impose a monetary fine on all four charges. On June 12, 2019, the Commission issued an adjudication order formalizing its decision.

{¶ 17} Appellant filed a timely R.C. 119.12 appeal of the Commission's adjudication order to the common pleas court. On October 30, 2019, appellant filed a motion seeking to admit his affidavit as additional evidence pursuant to R.C. 119.12(K). The common pleas court denied the motion. On December 23, 2019, the common pleas court issued a decision and entry affirming the Commission's adjudication order.

{¶ 18} Appellant appeals, assigning the following seven assignments of error for our review:

[I.] The Trial Court erred in concluding that the Real Estate Commission's adjudication order was in accordance with law because Starr's due process rights were violated due to a lack of notice and/or incorrect notice about the time of the hearing before the Real Estate Commission.

[II.] The Trial Court erred in denying Starr's motion to admit additional evidence.

[III.] The Trial Court erred in concluding that the Real Estate Commission's adjudication order was supported by reliable, probative and substantial evidence and that the adjudication order was in accordance with law as to Charge 1 of the Schedule A of the Notification of Formal Hearing.

[IV.] The Trial Court erred in concluding that the

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