{¶ 1} Aрpellant, Kenneth A. Wightman, appeals from a judgment of the Franklin County Court of Common Pleas that affirmed the order of appellee, the
{¶ 2} Wightman is a licensed real estate salesperson who focuses his real estate practice on the Short North/Victorian Village area of Columbus. Wightman is affiliated with Prudential American Realty Center (“Prudential”), a licensed reаl estate broker.
{¶ 3} Lynn and Sandra Meyers owned a duplex located at 1173-1175 Oregon Avenue in the Short North/Victorian Village area. When the duplex was built, each of the two units had two upstairs bedrooms. However, at some point before the Meyerses purchased the duplex, a previous owner had demolished a portion of the upstairs common wall to attach one of the bedrooms of the 1173 unit to the 1175 unit. The Meyerses’ daughter, an Ohio State University student, and two friends lived in the larger 1175 unit. The Meyers rentеd the smaller 1173 unit.
{¶ 4} In the spring of 2006, the Meyerses decided to sell the duplex. Sandra contacted Wightman and asked him to evaluate the duplex. On April 3, 2006, Wightman visited the duplex and toured it with Sandra. Wightman told Sandra that she could sell the duplex “right away” to a purchaser looking for a rental property investment if she listed the duplex at $200,000. Wightman estimated that a buyer who wanted to occupy the duplex would pay between $225,000 and $250,000, but Wightman warned Sandra that such buyers were scarcer than investors, so she could not expеct a fast sale at the higher price.
{¶ 5} Wightman and Sandra also discussed converting the duplex into a condominium and selling the units separately. Wightman explained that the upstairs structural alteration would make it difficult to find a buyer for the smaller, less desirable 1173 unit. According to Wightman, he also told Sandra that converting the duplex to a condominium could take two to four months. Wightman testified that Sandra rejected the condominium option because she wanted a quick sale.
{¶ 6} Prior to meeting with Wightman, Sandra had infоrmed the tenants of the 1173 unit that she and her husband intended to sell the duplex. One of the tenants, Brian Ray, expressed interest in buying it. On the morning of April 4, 2006, Sandra offered to sell Ray the duplex for $220,000. That evening, Wight-man met with Sandra to review the paperwork necessary to list the duplex for sale. Sandra informed Wightman about her offer to Ray. Based on the amount of the offer, Wightman suggested listing the duplex for $239,900.
{¶ 7} Wightman then presented Sandra with a form contract entitled “Exclusive Right to Sell Listing Contract.” The listing contract granted Prudential the exclusive right to sell the duplex from April 5 to October 5, 2006. It also
{¶ 8} On April 7, 2006, Ray declined Sandra’s offer to purchase the duplex. About this same time, Wightman suggested to Sandra that he could purchase the duplex, convert it to a condominium, and offer Ray the opportunity to purchase the 1173 unit. Sandra indicated that she and her husband would consider a purchase offer from Wightman.
{¶ 9} Wightman presented an unsigned, written offer to the Meyerses on April 21, 2006. The offer listed the purchase price at $234,500, an amount that would net the Meyerses $220,000 after payment of the commission due to Prudential. In the additional terms and conditions section, the offer stated:
Although the Sellers have listed the property for sale with Real Estate agent Kenneth Wightman, and although Wightman is ready, willing and able to place it on the open market for sale, the Sellers have concluded that it is in their best interest to sell it to Wightman instead, even though they might have been able to sell it for more on the open market.
The sale price of this transaction represents the same net price the Seller offered to sell this property to another prospective buyer, plus the real estate commission, therefore the Sellers will net the same amount as if the other buyer had purchased this property.
Furthermore, the Sellers understand that because Wightman is the buyer, he cannot represent their interests in this transaction and that they are therefore representing themselves.
Sellers understand that Wightman is a licensed real estate broker doing business in Ohio, whose intent in purchasing this property is to turn it into condos and sell them for a profit. Sellers acknowledge that Wightman will be resеlling these units at a later date for a profit.
{¶ 10} During the April 21, 2006 meeting, Wightman and the Meyerses discussed the various terms of the offer. In response to the Meyerses’ concerns, Wightman made handwritten edits to the offer, which he and the Meyerses initialed. Wightman then signed the offer and gave it to the Meyerses so they could review it with their attorney.
{¶ 11} The Meyerses’ attorney recommended that they have a second real estate salesperson evaluate the duplex. According to the second real estate
{¶ 12} After the parties failed to reach an agreement, Wightman tried to communicate with the Meyerses regarding marketing the duplex. In return, the Meyerses requested that Prudential terminate the listing contract. Prudential refused.
{¶ 13} Ultimately, the Meyerses waited until the listing contract expired and then converted the duplex into a condominium and sold the two units separately. The larger 1175 unit sold for $194,900, and the smaller 1173 unit sold for $157,900.
{¶ 14} On July 13, 2006, Sandra filed a complaint agаinst Wightman with the Ohio Department of Commerce, Division of Real Estate and Professional Licensing (“Division”). The Division assigned an investigator to the case and, on November 13, 2006, the investigator submitted a written report of the results of his investigation to the superintendent of the Division. In a letter dated November 30, 2006, the superintendent notified Wightman that the Division had scheduled a formal hearing regarding Sandra’s complaint for January 12, 2007. The notice stated that the investigation into Sandra’s complaint revealed reasonablе and substantial evidence that Wightman “[flailed to obtain [his] client’s written consent to change the party [he] represented with respect to 1173-1175 Oregon Ave., Columbus, Ohio, in violation of R.C. 4735.18(A)(9) as that section incorporates [R.C.] 4735.59.” The notice also warned Wightman that if the violation was proved at the formal hearing, he could face disciplinary action.
{¶ 15} Instead of mailing the notice to Wightman’s business address, the Division mailed the notice to Wightman at his broker’s address. Wightman did not receive the notice, and consequently, he did not attend the January 12, 2007 hearing. Despite Wightman’s absence, the hearing examiner proceeded to hear testimony and accept other evidence from the state. Based upon that evidence, the hearing examiner concluded that after the Meyerses signed an agency disclosure form, Wightman “unilaterally chang[ed] the party he represented to be that of himself and submitted] his purchase offer to the sellers, without their written consent to the change in representatiоn.” As a result of this conclusion, the hearing examiner recommended that the commission find that Wightman violated R.C. 4735.59, which reads:
To change the party a licensee represents in a real estate transaction after an agency disclosure statement has been signed and dated or following verbal disclosure of the agency relationship, the licensee shall obtain written consent from the party originally represented to represent another party in the transaction.
{¶ 16} After Wightman received a copy of the hearing examiner’s report and recommendation, he filed objections, explaining that he had never obtained notice of the hearing. Disturbed that the lack of notice precluded Wightman from defending himself at the hearing, the commission ordered another full hearing so Wightman could present evidence and argument. Wightman appealed this order to the trial court, contending that R.C. 119.07 required the commission to disapprove the hearing examiner’s recommendatiоn, not return the matter to the hearing examiner for a second hearing. In a motion to dismiss Wightman’s appeal, the state argued that the trial court could not hear the appeal until the commission adjudicated the matter. Because the commission’s order did not determine Wightman’s rights, duties, privileges, benefits, or legal relationships, the state asserted that it did not constitute an adjudication order that Wightman could appeal under R.C. 119.12. The trial court agreed with the state and dismissed Wightman’s appeal.
{¶ 17} Wightman appealed the trial court’s dismissal to this court. While that appeal was pending, the parties jointly moved for a remand of the matter to the commission for a full hearing. This court approved the motion, dismissed Wightman’s appeal, and remanded the matter to the trial court for consideration of the parties’ joint motion. The trial court then remanded the matter to the commission.
{¶ 18} Upon reacquiring jurisdiction over the matter, the commission directed a hearing examiner to hold a full hеaring. At that two-day hearing, Wightman and Sandra testified to the facts set forth above. Division investigator Michael Bannister also testified.
{¶ 19} In his combined closing argument and posthearing brief, Wightman argued that the commission lacked jurisdiction over the matter because the Division failed to comply with the time restrictions contained in R.C. 4735.051(D). Assuming that the commission could hear the matter, Wightman argued that he had not violated R.C. 4735.59 because he did not change the party he was representing with regard to the sale of the duplеx. Instead, Wightman contended, his role shifted from representing the Meyerses to acting on his own behalf as the buyer. Because he never represented “another party in the transaction,” i.e., he did not serve as agent to another principal involved in the transaction, Wightman asserted that the circumstances did not implicate R.C. 4735.59.
{¶ 21} The commission disapproved the hearing examiner’s recommendation. In its January 15, 2010 order, the cоmmission found that because Wightman had failed to obtain the Meyerses’ written consent to discontinue his representation and to represent himself as a buyer, Wightman violated R.C. 4735.18(A)(9) as it incorporates R.C. 4735.59. The commission assessed a $1,000 civil penalty and required Wightman to submit proof to the Division that he had completed three hours of education in agency.
{¶ 22} Pursuant to R.C. 119.12, Wightman appealed the commission’s order to the trial court. On June 23, 2010, the trial court issued a decision and entry affirming the commission’s order. Wightman nоw appeals the trial court’s judgment to this court, and he assigns the following errors:
[1.] The trial court erred when it affirmed the January 15, 2010, adjudication order, because appellant did not enter into an agency relationship with another party.
[2.] The trial court erred when it affirmed the January 15, 2010, adjudication order, because the charge against the appellant was not brought timely.
[3.] The trial court erred when it affirmed the January 15, 2010, adjudication order, because the reliable, substantial and probative evidence demonstrated that the sellers consented to Mr. Wightman’s offer and any change in representation, if any, in writing.
{¶ 23} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, the court must consider the entire record to determine if the agency’s order is supported by reliable, probative, and substantial evidence and is in accordance with law. If a party or agency appeals the trial court’s judgment on the agency’s order, an appellаte court will review any challenge to the trial court’s evaluation of the evidence under the abuse-of-discretion standard. Pons v. Ohio State Med. Bd. (1993),
{¶ 25} R.C. 4735.051(D) states that within 60 business days of the Division’s receipt of a complaint against a licensed real estate broker or a licensed real estate salesperson, a Division investigator must file a written report of the results of his or her investigation into the licensee’s conduct with the superintendent. Within 14 business days of receiving the report, the superintendent must determine whether there exists reasonable and substantial evidence that a licensee violated R.C. 4735.18(A). R.C. 4735.051(D); Boggs v. Ohio Real Estate Comm.,
{¶ 26} Here, the evidence demonstrates that the Division received Sandra’s complaint against Wightman on July 13, 2006. Thus, pursuant to R.C. 4735.051(D)’s 60-business-day deadline, the Division investigator had to file his report with the superintendent by October 6, 2006. The Division investigator missed that deadline by over a month, not filing his report with the superintendent until November 13, 2006.
{¶ 27} Wightman contends that the superintendent, like the investigator, also botched the time restrictions of R.C. 4735.051(D). We reject this contention. Despite the investigator’s initial delay, the superintendent complied with jthe time limitations imposed on her. The superintendent notified Wightman and Sandra of the scheduled hearing regarding the alleged misconduct on November 30, 2006. Thus, the superintendent determined that reasonable and substantial evidence established a violation of R.C. 4735.18(A) and issued the appropriate notification within 12 business days of receiving the investigator’s report. The superintendent completed both actions within the 14-business-day period that R.C. 4735.051(D) granted her to perform the first action.
{¶ 28} Nevertheless, because the investigator failed to meet his statutory deadline, we must consider Wightman’s argument that noncompliance with R.C.
{¶ 29} Wightman urges this court to abandon Barlow and Boggs and adopt the reasoning of Royer v. Ohio Real Estate Comm. (1999),
{¶ 30} We decline to follow Royer for three reasons. First, Royer is a decision from the Third District Court of Appeals and, thus, it is not controlling authority for this court. Hewitt v. Columbus, 10th Dist. No. 08AP-1087,
{¶ 31} Next, Wightman argues that Farrar’s general rule for construing an enactment’s time limitations as directory only aрplies to statutes that impose time requirements on tribunals. We cannot countenance such a reading of Farrar. By its own terms, Farrar’s general rule applies to statutes that set the time “for the performance of an official duty.” (Emphasis added.) Id. at paragraph three of the syllabus. Wightman does not cite, nor have we located, any authority that limits the application of Farrar to statutes governing tribunals.
{¶ 32} Finally, Wightman asserts that this court should follow Mazza v. Ohio Real Estate Comm. (Oct. 24, 2008), Franklin C.P. No. 08CVF04-6000. There, the trial court held that the commission lacked jurisdiction to discipline a licensee when the state failed to establish that the superintendent complied with the R.C. 4735.051(D) deadlines for determining to pursue charges and notifying the licensee and complainant of the charges. Because Mazza is a decision from a court of common pleas, it does not bind this court. Dalton v. Wilson, 10th Dist. No. 01AP-014,
{¶ 33} Applying Barlow and Boggs to this case, we hold that the commission had jurisdiction to proceed against Wightman, despite the investigator’s belated filing of his report with the superintendent. Furthermore, as Wightman failed to demonstrate any prejudice rеsulting from the investigator’s noncompliance with R.C. 4735.051(D), that noncompliance does not provide a ground for reversal of the commission’s order. Accordingly, we overrule Wightman’s second assignment of error.
{¶ 34} By Wightman’s first assignment of error, he argues that he did not violate R.C. 4735.59 because he never represented another party to the real estate transaction involving the Meyerses’ duplex. We agree.
{¶ 35} R.C. 4735.59 provides:
To change the party a licensee represents in a real estate transaction after an agency disclosure statement has been signed and dated or following verbal disclosure of the agency relationship, the licensee shall obtain written consent from the party originally represented to represent another party in the transaction.
{¶ 36} As the parties recognize, the resolution of their dispute turns on the meaning of the word “represent” as it is used in R.C. 4735.59. Thus, the parties present this court with a legal question that we determine de novo on appeal. Gilman v. Hamilton Cty. Bd. of Revision,
{¶ 37} Nothing in R.C. Chapter 4735 defines “represent.” When a word is not defined, courts use its common, ordinary, and accepted meaning unless it is contrary to clear legislative intent. Am. Fiber Sys., Inc. v. Levin,
{¶ 38} The definition of “represent” is consistent with the agency principles that underlie R.C. 4735.59. An agency relationship contemplates the involvement of two persons: a principal and an agent. Lewis v. Ohio Real Estate Comm. (1997),
{¶ 39} In the case at bar, the only people Wightman ever represented, i.e., acted as an agent for, were the Meyerses. Wightman sought to end his representation of the Meyerses not to represent another party, but to pursue his own interests. Because Wightman did not exchange the Meyerses for another principal, R.C. 4735.59 does not pertain to Wightman’s actions.
{¶ 40} The state, however, contends that R.C. 4735.59 requires written consent whenever a licensee who was once an agent for the seller pаrticipates in a real estate transaction where he is no longer acting solely on the seller’s behalf. Essentially, the state asks this court to ignore the portion of R.C. 4735.59 that limits the statute’s application to circumstances in which a licensee seeks “[t]o change the party a licensee represents.” While public-policy reasons may exist for extending the reach of R.C. 4735.59, our duty is to construe the statute as written. State ex rel. Butler. Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,
{¶ 41} Under the uncontroverted facts, Wightman did not change the party he represented in the sale of the Meyerses’ duplex, and thus, he did not violate R.C. 4735.59. Accordingly, we sustain Wightman’s first assignment of error.
{¶ 42} Given our ruling on Wightman’s first assignment of error, his third assignment of error is moot. We thus decline to rule upon it.
{¶ 43} For the foregoing reasons, we sustain the first assignment of error, overrule the seсond assignment of error, and find the third assignment of error moot. We reverse the judgment of the Franklin County Court of Common Pleas,
Judgment reversed and cause remanded.
Notes
. Wightman asserts that the state stipulated "that the time periods for bringing the charge against Mr. Wightman were not met.” This assertion misstates the record. In fact, the state only "stipulate[d] to the two dates.” In other words, the state stipulated that November 13, 2006, was the date on which the investigator submitted his report to the superintendent and that November 30, 2006, was the date on which the superintendent issued the notification.