Boggs v. Ohio Real Estate Commission

926 N.E.2d 663, 186 Ohio App. 3d 96
CourtOhio Court of Appeals
DecidedDecember 3, 2009
DocketNo. 09AP-230
StatusPublished
Cited by10 cases

This text of 926 N.E.2d 663 (Boggs v. Ohio Real Estate Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boggs v. Ohio Real Estate Commission, 926 N.E.2d 663, 186 Ohio App. 3d 96 (Ohio Ct. App. 2009).

Opinion

Bryant, Judge.

{¶ 1} Appellant, Robbie A. Boggs, a licensed real estate salesperson, appeals from a Franklin County Court of Common Pleas judgment affirming the disciplinary order of appellee, Ohio Real Estate Commission (“the commission”), that sanctioned Boggs for violating R.C. 4735.18. Because (1) the commission’s failure to comply with procedural time limitations set forth in R.C. 4735.051(D) did not divest it of jurisdiction in this matter, (2) reliable, probative, and substantial evidence supports the commission’s order, and the order is in accordance with law, and (3) the common pleas court properly applied Loc.R. 12 of the Franklin County Court of Common Pleas and resolved Boggs’s assignments of error on appeal to that court, we affirm.

I. Procedural History

{¶ 2} In early February 2006, William and Melinda Dulle were looking for undeveloped land in the Marysville area and retained Boggs to represent them as a buyer’s broker. On February 4, 2006, Boggs met with the Dulles and provided them with a multiple listing service (“MLS”) printout detailing 28 lots available for sale. After independently viewing several of the lots, the Dulles decided to place a bid on a 6.24-acre parcel of vacant land (“the subject property”) included in the property listings. The MLS printout listed an asking price of $79,900 for the subject property and noted that the seller would pay a $4,000 agent bonus if the property’s sale closed by March 12, 2006.

{¶ 3} In order to ascertain a fair price for the subject property, the Dulles requested Boggs to provide them with a market analysis of comparable properties that had sold within the previous year. Boggs restricted her market analysis to properties that were at least four acres in size and had sold in the preceding 12 months for an amount within $20,000 of the subject property’s asking price. Boggs ultimately provided the Dulles with a list of five “comparables” that had sold for a minimum price of $62,000.

{¶ 4} On February 9, 2006, Boggs submitted a purchase offer on behalf of the Dulles in the amount of $78,000 for the subject property. The seller accepted the offer, and the Dulles closed on the subject property on March 10, 2006, qualifying Boggs for the $4,000 sales bonus. Several months later, the Dulles discovered from another real estate agent that the seller had purchased the subject property for $50,000 on January 31, 2006, nine days before Boggs submitted the Dulles’ $78,000 purchase offer to the seller.

{¶ 5} On December 5, 2006, the Dulles filed a complaint against Boggs with the Ohio Department of Commerce, Division of Real Estate and Professional Licensing (“the division”). The Dulles alleged that Boggs had failed to disclose to them [101]*101material information concerning the value of the subject lot, including not only its sale for $50,000 on January 31, 2006, but also the sale of an adjacent lot of nearly identical shape and size that Boggs had personally listed and sold for $38,000 the previous year. They also alleged that Boggs had failed to provide adequate comparables and had failed to adequately explain the $4,000 agent bonus the seller paid.

{¶ 6} By a letter dated December 8, 2006, Kelly Davids, superintendent of the division (“the superintendent”), notified Boggs of the Dulles’ complaint and allegations against her. The superintendent advised Boggs that the division was investigating the matter and directed her to furnish certain documents within 20 days to aid in the investigation. Forty days later, Boggs responded to the document request through her counsel’s letter dated January 18, 2007.

{¶ 7} On November 9, 2007, the superintendent issued Boggs a “Notice of Preliminary Hearing.” It stated, “The investigation conducted in this matter revealed reasonable and substantial evidence of acts in violation of R.C. Chapter 4735 of the Ohio Revised Code,” acts that if proved, could subject Boggs to disciplinary action. The notice advised Boggs of the factual allegations and the six charges under R.C. 4735.18 that would be considered at a “formal” hearing. It further informed her that the hearing examiner first would hold a preliminary hearing, via telephone conference with the parties, to discuss scheduling the formal hearing and other matters. In accordance with the schedule set at the preliminary hearing, the superintendent on December 10, 2007, issued a “Notification of Formal Hearing” that advised Boggs that the formal hearing would be held on February 28, 2008.

{¶ 8} Following the formal hearing, the hearing officer on April 4, 2008, issued his report and recommendation, concluding that Boggs had committed five of the six statutory violations the division charged. More particularly, the hearing officer found that the evidence established that Boggs had committed three violations based upon breach of her fiduciary duty to her clients, contrary to R.C. 4735.62(A), (D), and (F), as incorporated in R.C 4735.18(A)(9). Pursuant to the parties’ stipulations, the hearing officer also found that Boggs had committed two other violations: (1) she failed to provide her clients with a consumer guide, contrary to R.C. 4735.56(D) as incorporated in R.C. 4735.18(A)(9), and (2) she failed to provide a definite expiration date in the written agency relationship agreement she had with her clients, contrary to R.C. 4735.18(A)(28). As to the final charge that alleged that Boggs violated R.C. 4735.18(A)(3), the hearing officer found no violation. Although the evidence demonstrated that Boggs failed to disclose the January 31, 2006 sale of the subject property and the recent sale of the neighboring parcel, he concluded that her omissions did not rise to the level of a “continued course of misrepresentation.”

[102]*102{¶ 9} Adopting the hearing examiner’s foregoing findings of fact and conclusions of law, the commission on June 12, 2008, issued an adjudication order imposing a fine on Boggs in an amount totaling $400 and requiring her to complete nine hours of education in agency, core law, and ethics in addition to her continuing-education requirements.

(¶ 10} Pursuant to R.C. 119.12, Boggs appealed the commission’s disciplinary order to the Franklin County Court of Common Pleas. On November 13, 2008, the common pleas court issued a written decision (1) determining that the commission’s failure to comply with procedural time limitations in R.C. 4735.051(D) did not divest it of jurisdiction and (2) affirming the commission’s order because reliable, probative, and substantial evidence supports it, and it is in accordance with law. The court denied Boggs’s subsequent motion for reconsideration and entered judgment affirming the commission’s order.

II. Assignments of Error

{¶ 11} Boggs assigns four errors on appeal:

1. The lower court abused its discretion when it refused to consider two of Boggs’ assignments of error.
2. The lower court erred as a matter of law when it failed to reverse the Commission’s decision because the division was divested of jurisdiction because of the Superintendent’s failure to complete the investigation within the mandatory timeframes in R.C. 4735.051.
3. The lower court erred as a matter of law when it failed to reverse the Commission’s decision because the Division failed to timely schedule and notify Boggs of the date of a Chapter 119 hearing.
4.

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Cite This Page — Counsel Stack

Bluebook (online)
926 N.E.2d 663, 186 Ohio App. 3d 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boggs-v-ohio-real-estate-commission-ohioctapp-2009.