Wightman v. Ohio Real Estate Commission

961 N.E.2d 196, 195 Ohio App. 3d 561
CourtOhio Court of Appeals
DecidedApril 14, 2011
DocketNo. 10AP-699
StatusPublished
Cited by2 cases

This text of 961 N.E.2d 196 (Wightman 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
Wightman v. Ohio Real Estate Commission, 961 N.E.2d 196, 195 Ohio App. 3d 561 (Ohio Ct. App. 2011).

Opinion

Klatt, Judge.

{¶ 1} Appellant, Kenneth A. Wightman, appeals from a judgment of the Franklin County Court of Common Pleas that affirmed the order of appellee, the [563]*563Ohio Real Estate Commission (“commission”), disciplining Wightman for violating R.C. 4735.18(A)(9) as it incorporates R.C. 4735.59. For the following reasons, we reverse.

{¶ 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 real 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 rented 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 expect 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 informed 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 [564]*564provided that the Meyerses would pay Prudential a commission of seven percent of the selling price of the duplex. At Sandra’s insistence, Wightman added a term to the listing contract that precluded Prudential from receiving a full commission if Ray purchased the duplex by April 6, 2006. On April 5, 2006, the Meyerses signed the listing contract. Wightman executed the listing contract on Prudential’s behalf.

{¶ 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 reselling 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 [565]*565salesperson, the fair market value of the duplex was $256,000 to $258,000. Because this estimate of the duplex’s value exceeded Wightman’s estimate, the Meyerses decided to submit a counteroffer to Wightman that raised the purchase price to $239,900. Significantly, the counteroffer also provided that “[t]he parties agree that no party is obligated to pay any commissions and any listing agreement between Seller and Buyer is hereby terminated and shall be void ab initio.” Thus, under the terms of the counteroffer, the Meyerses would net $239,900, not $220,000. Wightman rejected the counteroffer.

{¶ 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 against 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.

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Related

State ex rel. Figueroa v. Ohio Dept. of Commerce
2019 Ohio 5200 (Ohio Court of Appeals, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
961 N.E.2d 196, 195 Ohio App. 3d 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wightman-v-ohio-real-estate-commission-ohioctapp-2011.