Calo v. Ohio Real Estate Comm.Calo v. Ohio Real Estate Comm.
Rendered on May 19, 2011
Madison & Rosan, LLP, Kristin E. Rosan and Darcy A. Shafer, for appellant.
Michael DeWine, Attorney General, and Janyce C. Katz, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Appellant-appellant, Christopher J. Calo, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to dismiss of appellee-appellee, Ohio Real Estate Commission. Because (1) the commission complied with the proсedural requirements in
{¶2} Appellant was a licensed Ohio real estate broker in 2008. On May 8, 2008, an individual filed a complaint with the Ohio Department of Commerce, Division of Real Estate and Professional Licensing, alleging appellant, and the real estate salesperson working for him, failed to return her calls and otherwise failed to do what they promised regarding the sale of her home. The division‘s file contained twо business contact addresses for appellant, one in Solon, Ohio and one in Mayfield, Ohio.
{¶3} On May 14, 2008 the division mailed notice of the complaint to the Solon address. Although the notice requested appellant send certain documents to the division, appellant did not send the requested documents. By certified mail, the division mailed a subpoena to appellant at his Mayfield address on August 18, 2008, instructing him to produce the requested documents within seven days; an individual other than appellant signed the return recеipt. An investigator the division assigned to handle the complaint testified appellant did not respond to either the complaint or subpoena. The investigator further stated she spoke with appellant on three occasions but was unable to obtain the requested documents.
{¶4} Again by certified mail, the division on May 28, 2009 sent to appellant‘s Mayfield address a “Notification of Formal Hearing” set for June 26, 2009. The division advised appellant it had evidence that appellant violated
{¶6} With appellant present, the commission reviewed the hearing officer‘s report and recommendation on October 7, 2009. Following an executive session, the commission adopted the hearing officer‘s report and recommendation and voted to revoke appellant‘s license. On October 14, 2009, the commission sent appellant, by certified mail, a copy of the adjudication order.
{¶7} Appellant timely filed notices of appeal with the division and the Franklin County Court of Common Pleas, which denied appellant‘s motion for a stay. Appellant‘s brief supporting his appeal asserted the commission‘s adjudication order violated his right to due process because the division never served him with a copy of the complaint or the subpoena. The commission not only responded to appellant‘s assertiоns but also filed a motion to dismiss the appeal, asserting the common pleas court lacked subject matter jurisdiction over the appeal because appellant filed his appeal in the incorrect county
{¶8} The common pleas court filed its judgment on May 25, 2010, dismissing appellant‘s appeal for lack of subject matter jurisdiction. The court noted
II. Assignments of Error
{¶9} Appellant appeals, assigning the following errors:
- The Lower Court Erred As A Matter Of Law When It Dismissed The Appeal Without Addressing Whether The Appellee‘s Order Complied With
R.C. 119.09 . - The Lower Court Erred As A Matter Of Law When It Dismissed The Appeal Because It Had Jurisdiction Over Appeals By Persons Who Have Been Adversely Affected By The Ruling Of An Agency.
- The Lower Court Abused Its Discretion When It Denied Appellant‘s Motion For Stay.
III. Standard of Review
{¶10} Under
{¶11} An appellate court‘s review of an administrative decision is more limited than that of the court of common pleas. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. We review to determine whether the court of common pleas abused its discretion in determining whether substantial, reliable, and probative evidence supports the agency‘s order. Roy v. Ohio State Med. Bd. (1992), 80 Ohio App.3d 675, 680. We conduct a plenary review of issues of law. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 343.
IV. Compliance with R.C. 119.09
{¶12} Appellant‘s first assignment of error contends the common pleas court erred in dismissing his appeal for lack of subject matter jurisdiction without first considering whether the commission complied with the procedural requirements of
{¶13} Appellant asserts the adjudication order failed to comply with
A. Certified Copy
{¶14} Although appellant admits the commission mailed the adjudication order to him by certified mail, return receipt requested, appellant asserts the order cannot be considered a “certified copy” because it contains extra information that would not have been included in the order entered on the commission‘s journal.
{¶15}
{¶16} Because
{¶17} Appellant contests such a conclusion, pointing to various data included in thе letter to him that, he contends, are extraneous to the adjudication order and preclude it from complying with
{¶18} Contrary to appellant‘s argument, the effective date of revocation necessarily is included in the order. Its not being discussed at the October 7 meeting does not mean it was not entered in the commission‘s journal. Similarly, although the correspondence to appellant included the letter‘s October 14, 2009 date, appellant‘s name and address, and the сertified mailing numbers, all such information that preceded or followed the adjudication order, was not represented to be part of the certified copy of the order. Accordingly, they do not affect whether the correspondence mailed to appellant meets the requirements of
B. Approval of the Report and Recommendation
{¶20} Appellant alleges internal inconsistencies in the adjudication order demonstrate the commission failed to comply with
{¶21} Initially, appellant contends the statutory provision that requires the agency to adopt, modify or disapprove the hearing officer‘s report and recommendation is a procedural requirement of
{¶22} More significantly, whether the statutory requirement is procedural or substantive, the commission complied with it when the commission properly adopted the hearing officer‘s report and recommendation. The adjudication order expressly states the commission adopts “the Findings of Fact and Conclusions of Law of the hearing examiner and Christopher J. Calo is found to have violated Revised Code 4735.18 as set out in paragraphs 1 and 2 in the Schedule A of the Notification of Formal Hearing.” (Emphasis sic.) See
{¶23} Secondly, although
C. Time and Method for Appeal
{¶24} Appellant alleges the appeal period on his case has not commenced because the commission failed to adequately notify him of the time and method for perfecting his appeal.
{¶25} The statement in the commission‘s order, titled “Time and Method to Perfect an Appeal,” states that “[a]ny party desiring to appeal shall file a Notice of Appeal with the Ohio Division of Real Estatе at 77 South High Street 20th Floor, Columbus, Ohio 43215-6133 setting forth the order appealed from and the grounds of the party‘s appeal.” (C.R. 6.) According to the statement, “[a] copy of such Notice of Appeal shall be filed by the appellant with the appropriate Court of Common Pleas.” (C.R. 6.) In terms of the time for filing, the statement also advises “[s]uch Notices of Appeal shall be filed within fifteen (15) days after the mailing of the Notice of the Ohio Real Estate Commission‘s Order as provided in Section 119.12 of the Ohio Revised Code.” (C.R. 6.)
{¶26} Hughes deemed the statement sufficient when the “agency‘s description of Hughes‘s appeal rights track[ed] the language” of