author: DORRIAN, J.

text:
    Larry KATZ, Appellant-Appellant, v. OHIO REAL ESTATE COMMISSION, Appellee-Appellee.
    No. 17AP-537
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on April 12, 2018
    On brief: Madison & Rosan, LLP, Kristin E. Rosan, Columbus, and Walter J. McNamara, IV, for appellant. Argued: Walter J. McNamara, IV.
    On brief: Michael DeWine, Attorney General, and Rachel Huston, Columbus, for appellee. Argued: Rachel Huston.
    DECISION
   DORRIAN, J.

{¶ 1} Appellant, Larry Katz, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of appellee, the Ohio Real Estate Commission ("Commission"), revoking his real estate salesperson's license. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This appeal arises from an investigation conducted by the Ohio Department of Commerce Division of Real Estate and Professional Licensing ("the Division") regarding the conduct of Katz, who held an Ohio real estate salesperson's license. On March 25, 2015, a complaint was filed with the Division relating to Katz's conduct with respect to a property located at 4127 Jonquil Street in Columbus, Ohio ("the Jonquil Street property"). On February 19, 2008, Katz, as agent for an entity identified as Best Rentals, entered into a property management agreement with the owner of the Jonquil Street property, Denise Ramos-Laboy. The property management agreement indicated that Best Rentals was an affiliate of Barnett Realty. The property management agreement provided that Ramos-Laboy employed Best Rentals exclusively to rent, lease, operate, and manage the Jonquil Street property. The initial term of the property management agreement was from February 19 until August 31, 2008, but the agreement further provided that it would automatically renew year-to-year thereafter unless either party gave written notice of termination.

{¶ 3} On April 9, 2015, the Division issued a notice to Katz regarding the complaint. The notice indicated the address of the property and the transaction date of February 19, 2008. The notice further advised Katz that the Division's investigative staff would review the complaint and requested that Katz provide a written response to the complaint and all transactional records and advertising relating to the Jonquil Street property.

{¶ 4} On June 17, 2016, the Division issued a notification of formal hearing to Katz. The notification of formal hearing indicated the Division's investigation revealed reasonable and substantial evidence of acts, in violation of R.C. Chapter 4735, and that if violations were proved, Katz could face discipline including the suspension or revocation of his real estate salesperson's license. The notification of formal hearing was accompanied by an attachment setting forth two charges, both of which related to the period between approximately April 2012 and June 2014 with respect to the Jonquil Street property: (1) Katz acted like an Ohio real estate broker without a broker's license, in violation of R.C. 4735.02 as incorporated in R.C. 4735.18(A)(6), by failing to perform property management services for the Jonquil Street property through the brokerage he was licensed with at the relevant time, and (2) Katz failed to collect deposits, payments, and/or management fees in the name of and/or with the consent of the real estate broker he was licensed with at the relevant time, in violation of R.C. 4735.21 as incorporated by R.C. 4735.18(A)(6).

{¶ 5} On September 2, 2016, an administrative hearing officer ("hearing officer") conducted a formal hearing on the complaint. The Division presented testimony from Ramos-Laboy and from Kerry Hile, an investigator for the Division. Katz also appeared and testified at the formal hearing. Following the hearing, on October 24, 2016, the hearing officer issued findings of fact and conclusions of law concluding Katz did not act like a real estate broker without a license as alleged in the first charge. The hearing officer further concluded Katz failed to collect rental payments or property management fees in the name of his licensed broker, thereby violating R.C. 4735.21 as incorporated by R.C. 4735.18(A)(6), as alleged in the second charge.

{¶ 6} On November 16, 2016, the Division notified Katz the Commission would review the evidence from the formal hearing and the hearing officer's findings of fact and conclusions of law. The Commission considered the hearing officer's findings and conclusions at its January 18, 2017 meeting. The members of the Commission also considered arguments from counsel for Katz and the Division and addressed questions directly to Katz. Later in the meeting, the members of the Commission discussed the matter and ultimately voted unanimously to adopt in part and reject in part the findings of fact and conclusions of law issued by the hearing officer and to revoke Katz's real estate salesperson's license. Specifically, the Commission rejected the hearing officer's conclusion that Katz did not violate R.C. 4735.02 as incorporated in R.C. 4735.18, as alleged in the first charge. On January 25, 2017, the Commission issued an adjudication order adopting in part and rejecting in part the hearing officer's findings of fact and conclusions of law. The Commission found Katz violated R.C. 4735.18 as set forth in both of the charges and revoked Katz's real estate salesperson's license as the penalty for those violations.

{¶ 7} Katz appealed the Commission's adjudication order to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The common pleas court entered a judgment affirming the Commission's adjudication order, finding it was supported by reliable, probative, and substantial evidence.

II. Assignments of Error

{¶ 8} Katz appeals and assigns the following three assignments of error for our review:

[I.] THE ADJUDICATION ORDER IS INVALID AND NOT IN ACCORDANCE WITH THE LAW.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT THE ADJUDICATION ORDER WAS SUPPORTED BY RELIABLE PROBATIVE AND SUBSTANTIAL EVIDENCE.
[III.] THE COMMISSION'S DECISION AND ADJUDICATION ORDER VIOLATE KATZ'S RIGHT TO DUE PROCESS.

III. Discussion

{¶ 9} In an administrative appeal under R.C. 119.12, a common pleas court reviews the entire record and determines whether an agency's order is supported by reliable, probative, and substantial evidence, and is in accordance with law. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 614 N.E.2d 748 (1993). The standard of review for a court of appeals in an administrative appeal is more limited; we must determine whether the common pleas court abused its discretion. Id. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, on questions of whether the agency's decision was in accordance with law, we exercise plenary review. Gralewski v. Ohio Bur. of Workers' Comp. , 167 Ohio App.3d 468, 2006-Ohio-1529, 855 N.E.2d 879 (10th Dist.).

A. Validity of Investigation

{¶ 10} Katz argues in his first assignment of error the Commission's adjudication order was invalid because the investigation was barred by statute. Katz claims the investigation was conducted outside the time period permitted under R.C. 4735.32 and, therefore, any disciplinary proceeding based on the investigation was invalid.

{¶ 11} R.C. 4735.32(A)(1) provides the Commission or the superintendent of real estate "may commence, at any time within three years from the date on which an alleged violation of a provision of this or another chapter of the Revised Code occurred, any investigation that relates to the conduct of a licensed real estate broker, real estate salesperson * * * for purposes of determining whether a licensee * * * has violated a provision of this or another chapter of the Revised Code and whether, as a consequence, a licensee's license should be suspended or revoked, or other disciplinary action taken, as provided in this or another chapter of the Revised Code." The statute further provides that "[i]f such an investigation is not commenced within the three-year period, it shall be barred, and neither the commission nor the superintendent shall suspend or revoke the license of an any licensee, or take other disciplinary action against any licensee * * * because of the alleged violation of a provision of this or another chapter of the Revised Code that could have been the subject of the barred investigation." This court has held that R.C. 4735.32 is a statute of limitations that "unequivocally expresses the legislature's intent that an investigation 'shall be barred' if the commission does not commence the investigation within three years from the date of the real estate licensee's allegedly wrongful conduct." Boggs v. Ohio Real Estate Comm. , 186 Ohio App.3d 96, 2009-Ohio-6325, 926 N.E.2d 663, ¶ 26 (10th Dist.).

{¶ 12} The property management agreement for the Jonquil Street property was signed on February 19, 2008. Ramos-Laboy filed her complaint with the Division on March 25, 2015, more than seven years after the date of the property management agreement. The notice of complaint issued to Katz on April 9, 2015 referred to February 19, 2008 as the relevant transaction date. Katz argues that under the plain language of R.C. 4735.32, the Division was prohibited from undertaking an investigation because the transaction at issue occurred more than three years before the complaint was filed.

{¶ 13} The property management agreement for the Jonquil Street property provided that the initial period of service would last from February 19 through August 31, 2008. The agreement further provided it would automatically renew thereafter on a year-to-year basis. Katz testified that his property management services continued under the property management agreement after the initial period of service expired. Ramos-Laboy testified she terminated the property management agreement in December 2014. Thus, to the extent the property management agreement or any of Katz's conduct under that agreement may have constituted a violation of law, such violation potentially existed until December 2014, just three months before the complaint was filed.

{¶ 14} The charges attached to the notification of formal hearing alleged that Katz engaged in conduct constituting misconduct in violation of R.C. 4735.18(A)(6) during the period April 2012 through June 2014. These charges were limited to conduct occurring within the three-year period before the complaint was filed on March 25, 2015. This was consistent with the mandate of R.C. 4735.32(A)(1) that an investigation "may commence, at any time within three years from the date on which an alleged violation * * * occurred ." (Emphasis added.) Because the property management agreement for the Jonquil Street property was ongoing, it created the possibility of continuing violations. Thus, we find the Division's investigation and bringing of charges against Katz for acts occurring from April 2012 through June 2014 does not violate R.C. 4735.32 and does not render the Commission's adjudication order invalid.

{¶ 15} Accordingly, we overrule Katz's first assignment of error.

B. Evidence Supporting Final Adjudication Order

{¶ 16} Katz argues in his second assignment of error the common pleas court abused its discretion by finding the Commission's final adjudication order was supported by reliable, probative, and substantial evidence and was in accordance with law. We will consider Katz's arguments with respect to each of the charges against him in turn.

1. Acting like a broker without a broker's license

{¶ 17} The first charge against Katz alleged that between April 2012 and June 2014 Katz acted like a real estate broker without a broker's license by failing to perform property management services for the Jonquil Street property through the brokerage with which he was licensed. This conduct was alleged to violate R.C. 4735.02 as incorporated in R.C. 4735.18(A)(6).

{¶ 18} R.C. 4735.18(A)(6) provides the Commission may impose disciplinary sanctions on any licensee who is found guilty of "[d]ishonest or illegal dealing, gross negligence, incompetency, or misconduct." The Commission is empowered to determine what acts constitute misconduct for purposes of the statute. Richard T. Kiko Agency, Inc. v. Ohio Dept. of Commerce , 48 Ohio St.3d 74, 76, 549 N.E.2d 509 (1990) ; Hughes v. Ohio Div. of Real Estate , 86 Ohio App.3d 757, 760, 621 N.E.2d 1249 (2d Dist.1993). R.C. 4735.02(A) provides, in relevant part, that "no person * * * shall act as a real estate broker * * * or advertise or assume to act as such, without first being licensed as provided in [R.C. Chapter 4735]."

{¶ 19} The hearing officer concluded Katz did not act like a broker without a broker's license, as alleged in the first charge. Rather, the hearing officer concluded that as a licensed real estate salesperson, Katz was associated with a licensed real estate broker to do any of the transactions contained within the definition of a real estate broker. The hearing officer further concluded that because the definition of activities of a real estate broker included operation and management of rental properties, Katz was authorized by R.C. 4735.01(C) to engage in operation and management of rental properties. Thus, the hearing officer held Katz was acting as a licensed real estate salesperson, rather than as an unlicensed real estate broker, when he performed property management services for the Jonquil Street property.

{¶ 20} The Commission rejected the hearing officer's conclusion with respect to the first charge. Pursuant to R.C. 119.09, the Commission was required to include in the record the reasons for its disapproval and modification of this portion of the hearing officer's report. In the final adjudication order, the Commission indicated it found Katz acted as a broker without a license in violation of R.C. 4735.02 because he operated without the supervision, guidance, or oversight of a broker and, therefore, acted like a broker; because he advertised in the name of his own company rather than the brokerage; because he provided property management services in the name of his own company rather than the brokerage; and because his trust account was held in the name of his own company rather than the brokerage. The common pleas court concluded there was reliable, probative, and substantial evidence to support the Commission's conclusion that Katz violated R.C. 4735.02 by acting as a broker without a license.

{¶ 21} Katz argues on appeal that, as a licensed real estate salesperson, he was permitted to engage in property management services and advertise those services because a licensed real estate broker is permitted to engage in such services and a licensed real estate salesperson is authorized to engage in the acts or transactions contained within the definition of a licensed real estate broker. Katz further argues that at the time of the final adjudication order in this case, the law was not clear with regard to the duties of brokers in supervising affiliated salespersons, citing subsequent amendments to the law clarifying those duties.

{¶ 22} As noted above, our standard of review is more limited than that of the common pleas court-we must determine whether the common pleas court abused its discretion in affirming the Commission's order. The Revised Code defines real estate salesperson in relation to a real estate broker and provides that a salesperson is "associated with a licensed real estate broker to do or to deal in any acts or transactions set out or comprehended by the definition of a real estate broker." R.C. 4735.01(C). The definition of real estate broker includes anyone who "[o]perates, manages, or rents, or offers or attempts to operate, manage, or rent, other than as custodian, caretaker, or janitor, any building or portions of buildings to the public as tenants." R.C. 4735.01(A)(5). Although the law governing real estate brokers and salespersons has been amended with respect to a broker's duties of supervision and the prohibition on acting as a broker without authority, those amendments did not alter the provisions under which Katz was charged. See R.C. 4735.18(A)(38) and 4735.081.

{¶ 23} Based on the evidence in this case, we cannot conclude the common pleas court abused its discretion by concluding there was reliable, probative, and substantial evidence to support the Commission's finding on the first charge. During the relevant time period, Katz was initially affiliated with Barnett Realty. He testified he ended his affiliation with Barnett Realty in late 2012 or early 2013 and became affiliated with Tiger Realty and broker Mark Ebner. Katz testified his property management activities were conducted under the name Best Rentals or the name of the broker with whom he was affiliated, but admitted he used the name Best Rentals when affiliated with both Barnett Realty and Tiger Realty. Katz further admitted he had registered the name Best Rentals with the office of the Ohio Secretary of State as a trade name. The property management agreement for the Jonquil Street property had the names Best Rentals and Barnett Realty on it. Similarly, a copy of Katz's business card introduced at the hearing contained the names of both Tiger Realty and Best Rentals. Hile testified the Best Rentals name was not affiliated with Tiger Realty in the records of the Division of Real Estate.

{¶ 24} Katz testified he had an office in Bexley, but Ebner did not have an office at the same location. Although Katz testified he saw Ebner frequently and Ebner could freely access Katz's office, he admitted Ebner did not have a key to the office. As discussed more fully below, rental payments for the Jonquil Street property were made to Best Rentals, not Tiger Realty; these payments were deposited into an account held by Best Rentals Holding, rather than by Tiger Realty. The Commission's discussion of the evidence reflects a conclusion that although Katz was affiliated with Ebner and Tiger Realty, he effectively operated his property management services independently of that affiliation, which constituted acting as a broker without a license. This conclusion is reflected in the reasons set forth in the adjudication order for rejecting the hearing officer's conclusions regarding the first charge.

{¶ 25} Under these circumstances, we cannot conclude the common pleas court abused its discretion by concluding the Commission's final adjudication order was supported by reliable, probative, and substantial evidence with respect to the first charge.

2. Failure to collect property management funds in the broker's name

{¶ 26} The second charge against Katz alleged that between April 2012 and June 2014, in the course of managing the Jonquil Street property, Katz failed to collect deposits, payments, or management fees in the name of or with the consent of the broker with whom he was affiliated. This conduct was alleged to violate R.C. 4735.21 as incorporated in R.C. 4735.18(A)(6).

{¶ 27} As explained above, R.C. 4735.18(A)(6) provides the Commission may impose disciplinary sanctions on any licensee who is found guilty of "[d]ishonest or illegal dealing, gross negligence, incompetency, or misconduct." R.C. 4735.21 provides, in relevant part, that "[n]o real estate salesperson * * * shall collect any money in connection with any real estate * * * transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of and with the consent of the licensed real estate broker * * * under whom the salesperson is licensed at the time the sales person earned the commission."

{¶ 28} The hearing officer found that rent for the Jonquil Street property was paid directly to Best Rentals and deposited to a trust account held at Fifth Third Bank in the name of Best Rentals Holding. The hearing officer further found that none of the rental payments went to Katz's broker, Tiger Realty, and the rental proceeds were not placed into a trust account in the name of Tiger Realty. The hearing officer concluded Katz's failure to collect rental payments or management fees in the name of his licensed broker was conduct contrary to law, which constituted misconduct for purposes of R.C. 4735.18(A)(6). The Commission adopted the hearing officer's findings of fact and conclusions of law with respect to the second charge, holding that Katz violated R.C. 4735.21 as set forth in the second charge. The common pleas court concluded there was reliable, probative, and substantial evidence to support the Commission's conclusion that Katz violated R.C. 4735.21.

{¶ 29} Katz argues the common pleas court abused its discretion by finding the Commission's conclusion with respect to the second charge was supported by reliable, probative, and substantial evidence and was consistent with law. He claims R.C. 4735.21 must be read in conjunction with R.C. 4735.18(A)(27) and that the law only required him to have a separate property management trust account. Katz asserts he had a separate property management trust account and that rent and fees from the Jonquil Street property were placed into that account. Katz further argues he acted with the knowledge and consent of his broker and there was no evidence of improper handling or conversion of client funds.

{¶ 30} Katz testified before the hearing officer that rent from the Jonquil Street property was deposited into a trust account at Fifth Third Bank in the name of Best Rental Holdings and not into an account held by Tiger Realty. Similarly, Hile testified his investigation determined that rental payments for the Jonquil Street property were paid to Best Rental and were deposited into an account associated with Best Rental Holdings, not Tiger Realty. Thus, the common pleas court did not abuse its discretion by concluding there was reliable, probative, and substantial evidence to establish that Katz collected rent in a name other than that of his licensed broker, in violation of R.C. 4735.21. Moreover, R.C. 4735.18(A)(27), which Katz cites in support of his arguments, expressly refers to the requirement to maintain a separate trust account for funds "received by the broker in a fiduciary capacity in the course of managing real property" and that the account must be separate and distinct from any other account "maintained by the broker." Thus, this statute supports a conclusion that Katz violated R.C. 4735.21 by collecting rental payments in a name other than that of his broker and thereby committed misconduct subject to disciplinary sanctions under R.C. 4735.18(A)(6).

{¶ 31} Having concluded the common pleas court did not abuse its discretion by concluding there was reliable, probative, and substantial evidence to support the Commission's adjudication order, we overrule Katz's second assignment of error.

C. Due Process

{¶ 32} In his third assignment of error, Katz asserts the Commission violated his right to due process. Katz argues he was punished based on his broker's failure to exercise supervision and oversight, but that he was not given notice of these charges. Katz claims the Commission failed to provide sufficient grounds for its rejection of the hearing officer's finding of no violation; he further claims the explanation offered by the Commission demonstrates he was sanctioned for alleged misconduct by his broker, which was not charged in the notices he received. Katz also asserts the Commission violated his right to due process by refusing to consider his argument that it imposed a lesser penalty in another case involving similar charges. The common pleas court concluded Katz was placed on notice there were charges against him and had an opportunity to be heard at the September 2, 2016 hearing.

{¶ 33} The due process rights guaranteed under the federal and state constitutions apply in administrative proceedings. MacConnell v. Ohio Dept. of Commerce , 10th Dist. No. 04AP-433, 2005-Ohio-1960, 2005 WL 995590, ¶ 24. The fundamental requirement of procedural due process is notice and hearing. Id. , citing Korn v. Ohio State Medical Bd. , 61 Ohio App.3d 677, 684, 573 N.E.2d 1100 (10th Dist.1988). The notice must be reasonably calculated, under the circumstances, to apprise a party of the pendency of the action and afford an opportunity to present objections. Wightman v. Ohio Real Estate Comm. , 10th Dist., 2017-Ohio-756, 85 N.E.3d 1061, ¶ 20. Due process further requires that an individual in an administrative proceeding receive a fair hearing before an impartial tribunal. Id. at ¶ 21.

{¶ 34} The notification of formal hearing issued to Katz on June 17, 2016 contained the charges against him, alleging that between April 2012 and June 2014 Katz violated R.C. 4735.18(A)(6) by: (1) acting like a broker without a broker's license by failing to perform property management services through the brokerage he was registered with, and (2) failing to collect deposits, payments or fees in the name of or with the consent of the licensed broker with whom he was affiliated. Thus, Katz was given notice of the charges against him. The notification of formal hearing also advised Katz that a formal hearing would be conducted on those charges and that he had an opportunity to appear and present evidence related to those charges, and to be represented by counsel at the hearing.

{¶ 35} The Commission's adjudication order found Katz violated R.C. 4735.18 as charged in the schedule attached to the notification of formal hearing. In accordance with R.C. 119.09, the Commission included an exhibit to the adjudication order explaining its reasons for rejecting certain conclusions of the hearing officer's report. See R.C. 119.09 ("[I]f the agency modifies or disapproves the recommendations of the referee or examiner it shall include in the record of its proceedings the reasons for such modification or disapproval."). The reasons set forth by the Commission involved failure to conduct property management services through the brokerage with which Katz was affiliated or to otherwise conduct activities under the auspices and oversight of the broker with whom he was affiliated. Further, Katz appeared at the September 2, 2016 hearing before the hearing officer and at the January 18, 2017 proceedings of the Commission and was represented by counsel on both occasions. Based on the record in this case, Katz was afforded due process at the administrative level because he was given notice of the charges against him and an opportunity to be heard before an impartial tribunal.

{¶ 36} Accordingly, we overrule Katz's third assignment of error.

IV. Conclusion

{¶ 37} For the foregoing reasons, we overrule Katz's three assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER and LUPER SCHUSTER, JJ., concur.

      A copy of the original complaint as filed with the Division is not included in the record before this court. Therefore, our review is limited to the allegations developed through the subsequent investigation.


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    CITY OF MAPLE HEIGHTS, Plaintiff-Appellant v. STATE EMPLOYMENT RELATIONS BOARD, Defendant-Appellee
    No. 106192
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Frank Consolo, Consolo Law Firm Co., L.P.A., 212 Hoyt Block, 700 West St. Clair Avenue, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Mike DeWine, Ohio Attorney General, By: Lori J. Friedman, Assistant Attorney General, State Office Building, 11th Floor, 615 West Superior Avenue, Cleveland, Ohio 44113, For State Employment Relations Board, Kay Cremeans, 222 East Town Street, Columbus, Ohio 43215, For Fraternal Order of Police, Ohio Labor Council, Inc., ATTORNEYS FOR APPELLEES
    BEFORE: Celebrezze, J., Kilbane, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, the city of Maple Heights ("City"), brings this appeal challenging the trial court's decree enforcing defendant-appellee, the State Employment Relations Board's ("SERB") order that found that the City committed an unfair labor practice. Specifically, the City argues that the trial court abused its discretion in affirming SERB's prior order that determined that the City committed an unfair labor practice by refusing to collectively bargain with defendant-appellee, Fraternal Order of Police ("FOP"), after a bargaining unit comprised of a single employee was previously certified by SERB. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The City is a "public employer" pursuant to R.C. 4117.01(B). The FOP is an "employee organization" pursuant to R.C. 4117.12(D) and is the SERB certified bargaining representative of full-time records clerks employed by the City.

{¶ 3} On August 5, 2015, FOP filed a request for recognition with SERB for a collective bargaining unit comprised of " 'all full-time records clerks' employed by the City of Maple Heights." As of the date of the filing request, the number of employees within the proposed bargaining unit was two. The City did not file any objections to the proposed bargaining unit pursuant to R.C. 4117.05(A)(2)(a)(iv).

{¶ 4} Following the request for recognition, the City provided to SERB the name of a single employee within the proposed bargaining unit. Here, the City never raised a formal objection pursuant to R.C. 4117.05(A)(2)(a)(iv) claiming the bargaining unit was not appropriate given the fact that it only consisted of a single employee. As of August 5, 2015, the City employed one person in the position of records clerk. On October 29, 2015, SERB certified the FOP as the exclusive representative of all full-time records clerks within the bargaining unit.

{¶ 5} On April 8, 2016, in Case Number 2016-MED-04-0478, FOP filed a notice to negotiate with SERB for the purpose of negotiating an initial collective bargaining agreement. Within this notice, the approximate number of employees within the bargaining unit was two. The FOP and City engaged in negotiations on August 17, 2016, and September 7, 2016. A third negotiating session was thereafter scheduled for September 19, 2016. Sometime in September 2016, the City hired a new law director, Frank Consolo. The September 19, 2016 negotiation meeting was cancelled. Further negotiation sessions did not occur. Thereafter, in November 2016, Consolo notified SERB via email that the City would no longer engage in negotiations with FOP because the City believed the single-employee bargaining unit was not appropriate pursuant to R.C. Chapter 4117. The City argued that there can be no "collective" bargaining because the unit is only made up of one individual.

{¶ 6} On December 6, 2016, the FOP filed an unfair labor charge with SERB pursuant to R.C. 4117.12(B) and Ohio Administrative Code ("O.A.C.") 4117-7-01, alleging that the City had violated R.C. 4117.11(A)(1) and (A)(5). On January 26, 2017, SERB determined that probable cause existed to believe that the City had committed or was committing an unfair labor practice. A complaint was authorized, and the matter was set for an expedited hearing, Case No. 2016-ULP-12-0279. Thereafter, a hearing was held and SERB found that the City had engaged in an unfair labor practice pursuant to R.C. 4117.11 by refusing to collectively bargain with the FOP.

{¶ 7} The City then filed an appeal of the SERB order to the trial court arguing that it could not have committed an unfair labor practice against FOP because single-employee bargaining units are not permitted under R.C. Chapter 4117 and, thus, the City had no duty to bargain.

{¶ 8} On August 4, 2017, the trial court journalized an order affirming SERB's decision, finding that the SERB order was supported by substantial evidence. Specifically, the trial court found that there existed no legal basis for adopting the City's assertion that a single-employee bargaining unit was not appropriate pursuant to R.C. Chapter 4117. In addition, the trial court noted that the City failed to object to the August 2015 request for recognition of the bargaining unit at issue. As such, the trial court entered a decree enforcing the SERB order finding that the City committed an unfair labor practice by refusing to collectively bargain with the FOP.

{¶ 9} On August 30, 2017, the City filed the instant appeal from the trial court's judgment affirming the SERB order. Here, the City raises the following assignment of error for review:

(1) The trial court abused its discretion in affirming SERB's order and opinion which determined that the City of Maple Heights committed an unfair labor practice in violation of R.C. 4117.11(A)(1) and (A)(5) by refusing to collectively bargain with the FOP over the terms and conditions of employment for a single records clerk in a bargaining unit certified by SERB for more than one records clerk.

II. Law and Analysis

{¶ 10} In its sole assignment of error, the City argues the trial court abused its discretion by affirming the SERB's order and opinion. The City asserts that a single-employee bargaining unit is not permitted and thus the single-employee bargaining unit under R.C. Chapter 4117 was not appropriate.

A. Standard of Review

{¶ 11} In reviewing a SERB order, a trial court must determine whether the order was supported by substantial evidence. This standard of review for the trial court reviewing a SERB order is governed by R.C. 4117.13(D), which states that "[t]he findings of the board as to the facts, if supported by substantial evidence, on the record as a whole, are conclusive." Further, "[c]ourts must afford due deference to the State Employment Relations Board's interpretation of R.C. Chapter 4117." Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 533 N.E.2d 264 (1988), paragraph two of the syllabus. Indeed,

[t]he General Assembly has entrusted SERB with the responsibility of administering the statute, and has bestowed upon it the special function of applying the statute's provisions to the complexities of Ohio's industrial life. In so doing, it has delegated to SERB the authority to make certain policy decisions.

State Emp. Relations Bd. v. Miami Univ., 71 Ohio St.3d 351, 353, 643 N.E.2d 1113 (1994).

{¶ 12} Regarding appellate review of such matters, appellate courts play an even more limited role than the trial court in reviewing SERB orders. The role of the appellate court is to determine whether the trial court has abused its discretion. The appellate court must affirm the judgment of the trial court if no abuse of discretion occurred. Lorain City School Dist. Bd. of Edn. at 260-261, 533 N.E.2d 264.

B. Single-Employee Bargaining Unit

{¶ 13} In the present matter, the trial court affirmed the SERB decision, finding that the City failed to timely object to the FOP's request for recognition of the bargaining unit at issue. Pursuant to R.C. 4117.05, for the purposes of collective bargaining, an employee organization becomes the exclusive representative of all the public employees in an appropriate unit by filing a request with SERB. SERB shall then certify the employee organization on the 22d day following the filing of the request for recognition, unless by the 21st day following the filing an objection is filed by the employer. More specifically, R.C. 4117.06 requires an employer to supply SERB with "substantial evidence * * * that the proposed unit is not an appropriate unit pursuant to section 4117.06." R.C. 4117.05. O.A.C. 4117-3-03 defines substantial evidence that a unit is not appropriate as "a clear and concise statement of the reason the unit is not appropriate, such statement to be supported by documentation relating to the factors set forth in section 4117.06."

{¶ 14} SERB's order stated that it granted the certification of the FOP's collective bargaining unit because the City failed to object to the appropriateness of the unit within the proscribed time frame (by August 26, 2015). Thus, the City's argument that a single-employee unit is not appropriate is now moot. The City was aware that the records clerks unit consisted of a single employee, yet no objection to the appropriateness of this unit was filed by the City. Undeniably, the City itself filed with SERB an alphabetical list of employees that consisted of the one employee and then more than a year later (after having participated in negotiations with the FOP) notified SERB that it would no longer negotiate with the FOP. Pursuant to R.C. 4117.06, if a certification is not objected to within 21 days, SERB shall certify the unit's request for recognition. Accordingly, we find that the trial court did not abuse its discretion in finding that SERB correctly determined that the City did commit an unfair labor practice by refusing to collectively bargain with the FOP.

{¶ 15} Moreover, as the trial court noted, the City has effectively waived its ability to challenge whether the single-employee records clerks bargaining unit is appropriate because the City failed to object within the 21 days. R.C. 4117.06 provides that SERB has the exclusive jurisdiction to decide the appropriateness of units for collective bargaining. Ohio Assn. of Pub. School Emps. v. Madison Local School Dist. Bd. of Edn. , 190 Ohio App.3d 254, 2010-Ohio-4942, 941 N.E.2d 834 (11th Dist.). Any determinations within SERB's exclusive jurisdiction are final and will not be reviewed by a reviewing court. See R.C. 4117.06. Although the City correctly appealed to the trial court SERB's unfair labor practice determination, the essence of the City's appeal in the trial court, and thus before this court, is the underlying appropriateness of the bargaining unit. Undoubtedly, the appropriateness of the bargaining unit is an issue not appealable to the trial court nor this court because such an issue falls within the exclusive purview of SERB pursuant to R.C. 4117.06. Accordingly, as the trial court was not able to review the appropriateness determination, and as the City failed to object within the 21-day time frame, the trial court did not abuse its discretion in affirming SERB's order.

C. Unfair Labor Practice

{¶ 16} In the present matter, SERB's ultimate issue was whether the City committed an unfair labor practice by failing to collectively bargain with the FOP, in violation of R.C. 4117.11(A)(1) and (A)(5). R.C. 4117.11 provides, in relevant part:

It is an unfair labor practice for a public employer, its agents, or representatives to:
(1) Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Chapter 4117 of the Revised Code or an employee organization in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances;
* * *
(5) Refuse to bargain collectively with the representative of his employees recognized as the exclusive representative or certified pursuant to Chapter 4117 of the Revised Code[.]

R.C. 4117.11(A)(1) and (A)(5).

{¶ 17} On appeal, the City argues that it did not commit an unfair labor practice by refusing to collectively bargain with the FOP because the City had no duty to engage in such collective bargaining negotiations. More specifically, the City asserts that because the bargaining unit only contained one single employee, the unit was not appropriate pursuant to R.C. 4117.06 and, as such, the City had no duty to collectively bargaining with such a unit.

{¶ 18} In support of its argument, the City directs our attention to R.C. 4117.04(A), which refers to bargaining units as being composed of "employees." Moreover, R.C. 4117.04(A) includes the phrase "collective bargaining." Thus, the City asserts more than one employee is needed to constitute a unit that undertakes the exercise of collective bargaining. Although this precise issue has not been addressed by this court, the Ninth District previously rejected a similar argument in Munroe Falls v. State Emp. Relations Bd., 9th Dist. Summit No. 26330, 2012-Ohio-6212, 2012 WL 6738272. The Ninth District reasoned that "to collectively bargain" is the exercise of mutual obligations between or amongst the parties that are actually collectively bargaining. The Ninth District stated, " ' "[t]o bargain collectively" means to perform the mutual obligation of the public employer, by its representatives, and the representatives of its employees to negotiate in good faith * * * with the intention of reaching an agreement, or to resolve questions arising under the agreement.' " Id. at ¶ 9, quoting R.C. 4117.01(G).

While it is true that [ R.C. 4117.01(G) ] refers to "representatives" and "employees" in the plural, it is a well understood rule of statutory construction that, unless there is "evidence which adequately demonstrates that such a construction is out of context with the remaining language of that statute or its related provisions," then, pursuant to R.C. 1.43(A), "the singular includes the plural, and the plural includes the singular." (Footnotes omitted.) Wingate v. Hordge , 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979).

Id. The Ninth District went on to conclude that "[w]e see nothing in [ R.C. 4117.01(G) ] which would require the conclusion that 'to bargain collectively' requires that the representative represent more than one employee." Id. at ¶ 9.

{¶ 19} As stated above, this court does not have jurisdiction to review SERB's determination that the single-employee bargaining unit was appropriate. However, in our review of applicable federal case law, without adopting a position, we note that the rationale in Munroe (to bargain collectively does not require more than one employee in the bargaining unit) conflicts with the federal "one-employee unit" rule. The National Labor Relations Board ("the Board") and federal jurisdictions have adopted the "one-employee unit" rule. A common-sense rationale for this rule exists-with one or fewer employees in a unit, no "collective" exists for the employer to bargain with in the first place. Foreign Car Center at 320. The basis for permitting an employer to engage in this conduct was explained by the Board in Foreign Car Center :

The Board has held that it will not certify a one-man unit because the principles of collective bargaining presuppose that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify a one-man unit. By parity of reasoning, the Act precludes the Board from directing an employer to bargain with respect to such a unit. While we have held that the Act does not preclude bargaining with a union on behalf of a single employee, if an employer is willing, we have never held that an employer's refusal to bargain with a representative on behalf of a one-man unit is a refusal to bargain within the meaning of Section 8(a)(5).

Id. Further, the one-employee unit rule affords employers expansive rights. "Employers that do not employ anyone in a bargaining unit may lawfully 'withdraw recognition from a union; repudiate their contract with the union, or unilaterally change employees' terms and conditions of employment without affording the union an opportunity to bargain." Baker Concrete Constr. v. Reinforced Concrete Iron Workers Local Union 372 of the Internatl.Assn. of Bridge Structural, Ornamental & Reinforcing Iron Workers , S.D.Ohio No. 1:13-CV-225, 2014 WL 4961488, 4 (Oct. 2, 2014), quoting Stack Electric , 290 N.L.R.B. 575, 577 (1988). "[The Board] consistently holds that, as a matter of law, employers with one or fewer employees in a bargaining unit have no contractual obligations despite the existence of a collective bargaining agreement." Baker Concrete Constr. at 4 ; Haas Garage Door Co. , 308 N.L.R.B. 1186 (1992) ; Searls Refrig. Co. , 297 N.L.R.B. 133 (1989 ); Bd. of Trustees of the Plumbers, Pipefitters & Mechanical Equip. Serv. v. R. & T. Schneider Plumbing Co. , S.D.Ohio No. 1:13-CV-858, 2015 WL 4191297 (July 10, 2015).

III. Conclusion

{¶ 20} The City failed to raise a timely objection as to the appropriateness of the bargaining unit. As such, this court cannot review whether such a determination was proper because SERB, pursuant to R.C. Chapter 4117, has exclusive jurisdiction on such matters. Because we must adopt SERB's determination that the unit was appropriate, the sole issue is whether the City committed an unfair labor practice in violation of R.C. 4117.11(A). Nothing within the record establishes that the trial court abused its discretion in concluding that the City committed an unfair labor practice by refusing to collectively bargain with the FOP. Undeniably, as admitted through joint stipulations submitted within the proceedings before SERB, the City admitted to committing this unfair labor practice. Accordingly, the trial court did not abuse its discretion. We overrule the City's sole assignment of error and affirm the trial court's judgment.

{¶ 21} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and

EILEEN T. GALLAGHER, J., CONCUR

      The "one-employee unit" rule states that an employer who refuses to bargain with a representative on behalf of a one-employee unit would not constitute an unfair labor practice. See Kirkpatrick Electric Co., Inc. 314 N.L.R.B. 1047 (1994). See also Foreign Car Center, Inc. , 129 N.L.R.B. 319, 320 (1960).


author: LARRY A. JONES, SR., J.:

text:
    Sami SOSNOSWSKY, Plaintiff-Appellant v. John P. KOSCIANSKI, et al., Defendants-Appellees
    No. 106147
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    William A. Carlin, Mark W. Biggerman, Carlin & Carlin, 29325 Chagrin Blvd., Suite 305, Cleveland, Ohio 44122, ATTORNEYS FOR APPELLANT
    Charles T. Brown, Miles Phillip Welo, Mansour Gavin, L.P.A., 1001 Lakeside Avenue, Suite 1400, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., Stewart, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} This matter involves the issue of whether the probate division of the Cuyahoga County Common Pleas Court had jurisdiction over a complaint alleging breach of fiduciary duty, negligence, fraud, conversion with regard to an estate, and that sought a constructive trust and an accounting. For the reasons that follow, we answer in the affirmative.

{¶ 2} Plaintiff-appellant, Sami Sosnoswsky, was gifted money to be placed into a trust until she turned 18 years old. Judith Lieber, Sosnoswsky's mother, was custodian of the account. From 1973-1980, the following amounts were to be placed in the trust: $19,000 from Sosnoswsky's grandmother, $6,057.40 from her grandfather, and $50,000 from her father. Sosnoswsky has alleged that the trust is currently worth about $2,000,000.

{¶ 3} In February 2016, defendant-appellee John Koscianski was appointed the guardian of the estate and person of Judith Lieber. On December 12, 2016, Sosnoswsky filed a complaint in the probate division of the Cuyahoga County Common Pleas Court. She filed a second complaint in the court's general division on December 29, 2016. The complaints were virtually identical in that they named the same defendants and alleged that, due to Lieber's fraudulent conveyance of the funds, Sosnoswsky never received any of her trust money.

{¶ 4} Koscianski filed a motion to dismiss the complaint in the general division pursuant to Civ.R. 12(B)(1). The court stayed the case pending decision by the probate division on the complaint Sosnoswsky had filed with that court. On April 28, 2017, Sosnoswsky voluntarily dismissed her complaint without prejudice in the probate court and moved to reinstate her general division case to the active docket. The general division trial court granted her motion to reinstate the case to the active docket.

{¶ 5} Koscianski moved to renew the original motion to dismiss in the general division. The general division trial court granted Koscianski's motion, holding:

Pursuant to R.C. 2101.24, it is well settled that the probate court has exclusive jurisdiction, unless otherwise provided by law, as to all matters set forth in R.C. 2101.24 and as to all matters pertaining directly to the administration of estates.
[T]his instant matter involves a ward [Lieber] that is currently under guardianship in the Cuyahoga County Probate Court. The Court finds that Plaintiff's claims are controlled by Ohio Rev. Code 2109.50 through Ohio Rev. Code 2109.56 and the Probate Court has exclusive jurisdiction of this matter. As such, Defendant's Motion to Dismiss is granted for lack of subject matter jurisdiction pursuant to Civ. R. 12(B)(1).

{¶ 6} Sosnoswsky filed a notice of appeal, raising one assignment of error for our review:

The trial court erred in granting the defendant's motion to dismiss complaint on the ground that the Cuyahoga County Court of Common Pleas lacked subject matter jurisdiction in accordance with Civ.R. 12(B)(1).

{¶ 7} In her sole assignment of error, Sosnoswsky claims that the trial court erred in dismissing her complaint for lack of subject matter jurisdiction under Civ.R. 12(B)(1). The standard of review for a Civ.R. 12(B)(1) dismissal is whether any cause of action cognizable by the forum has been raised in the complaint.

Prosen v. Dimora , 79 Ohio App.3d 120, 123, 606 N.E.2d 1050 (9th Dist.1992) citing Avco Fin. Servs. Loan, Inc. v. Hale , 36 Ohio App.3d 65, 67, 520 N.E.2d 1378 (10th Dist.1987) ; State ex rel. Bush v. Spurlock , 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). This determination involves a question of law that we review de novo. Phillips v. Deskin , 5th Dist. Richland No. 12CA119, 2013-Ohio-3025, 2013 WL 3776322, ¶ 8, citing Shockey v. Fouty , 106 Ohio App.3d 420, 666 N.E.2d 304 (4th Dist.1995). In doing so, we accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Phillips at id. , citing Byrd v. Faber , 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

{¶ 8} R.C. 2101.24, which governs the jurisdiction of probate court, provides, in pertinent part:

(A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction:
* * *
(e) To appoint and remove guardians, conservators, and testamentary trustees, direct and control their conduct, and settle their accounts;
* * *
(m) To direct and control the conduct of fiduciaries and settle their accounts;
* * *
(C) The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a section of the Revised Code.

{¶ 9} Pursuant to this R.C. 2101.24, a probate court has continuing and exclusive jurisdiction of all matters pertaining to a guardian and his or her ward. Goff v. Ameritrust Co., N.A. , 8th Dist. Cuyahoga Nos. 65196 and 66016, 1994 WL 173544, 4, 1994 Ohio App. LEXIS 1916, 12-13 (May 5, 1994), citing In re Clendenning , 145 Ohio St. 82, 60 N.E.2d 676 (1945). In Goff , this court determined that the probate court's jurisdiction over the guardianship extends to all matters "touching the guardianship" under R.C. 2101.24. Id., citing R.C. 2111.13(A) ; see also In re Rauscher , 40 Ohio App.3d 106, 531 N.E.2d 745 (8th Dist. 1987). R.C. 2111.13(A)(4) directs a guardian "to obey all the orders and judgments of the probate court touching the guardianship." In re Rauscher at 107-108, 531 N.E.2d 745.

{¶ 10} In her complaint, Sosnoswsky alleged that Lieber fraudulently concealed and converted funds for her own use that had been meant for Sosnoswsky. Because Lieber is under the guardianship of Koscianski, pursuant to R.C. 2101.24 and 2111.13, the probate court has jurisdiction over Sosnoswsky's claims.

{¶ 11} Koscianski argues that probate court has exclusive jurisdiction and control of a guardian and all things that "touch the guardianship"; therefore, Sosnoswsky's claim that the case belongs solely in the general division is incorrect. The issue, as the parties have framed it, is whether the probate court has exclusive jurisdiction over Sosnoswsky's claims. We find, however, that it is unnecessary for this court to determine whether the probate court's jurisdiction is exclusive, because (1) we have determined that the matter was properly before the probate court, and (2) the jurisdictional priority rule applies.

{¶ 12} "The jurisdictional priority rule prevents the prosecution of two actions involving the same controversy in two courts of concurrent jurisdiction at the same time." Davis v. Cowan Sys. , 8th Dist. Cuyahoga No. 83155, 2004-Ohio-515, 2004 WL 231803, ¶ 11. "The jurisdictional priority rule provides that 'as between [state]

courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.' " Id., quoting State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56, 476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar , 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus.

{¶ 13} To invoke the jurisdictional priority rule, the claims or causes of action must be the same in both cases. Where a suit is commenced in one jurisdiction that involves the "whole issue" between the parties, a second court may not interfere with the resolution of the issue filed in the first court. Davis at ¶ 12, citing CWP Ltd. Partnership v. Vitrano , 8th Dist. Cuyahoga No. 71314, 1997 WL 253156, 1997 Ohio App. LEXIS 2116 (May 15, 1997). But if the second case does not involve the same cause of action or the same parties, the first suit will normally not prevent the second case from proceeding. Davis at id. , citing State ex rel. Red Head Brass v. Holmes Cty. Court of Common Pleas , 80 Ohio St.3d 149, 684 N.E.2d 1234 (1997).

{¶ 14} In Davis , this court stated that a trial court must engage in a two-step analysis to determine whether two cases concern the same "whole issue." Id. at ¶ 14. "First, there must be cases pending in two different courts of concurrent jurisdiction involving substantially the same parties; and second, the ruling of the court subsequently acquiring jurisdiction may affect or interfere with the resolution of the issues before the court where suit was originally commenced." Id. , citing CWP Ltd. Partnership .

{¶ 15} Sosnoswsky filed her complaint in the probate division on December 12, 2016. She filed a nearly identical complaint in the general division on December 29, 2016. The sole difference in the complaints was that Sosnoswsky filed her complaint in the probate division pursuant to R.C. 2109.50 - 2109.56, that concern actions in probate court with regard to fiduciaries who conceal or embezzle assets. Her subsequently filed complaint in the general division named the same parties and asserted the same causes of action as the complaint filed in the general division without citing to R.C. 2109.50 - 2109.56. Both complaints requested a constructive trust and an action for accounting and alleged a breach of fiduciary duty, negligence, fraud, and conversion.

{¶ 16} We also find that if the general division determined the case, it would have a certain impact on the case that was first filed in the probate division. The two cases both concern the "whole issue"; therefore, even if Sosnoswsky's complaint was properly filed in the general division, the jurisdictional priority rule applies.

{¶ 17} Sosnoswsky contends that even if her case were decided in her favor in probate court, Koscianski could argue on appeal that the decision was void because the probate division did not have jurisdiction over those claims. We disagree. The general division trial court has found the probate court has jurisdiction over Sosnoswsky's claims and this decision affirms the trial court's finding. Thus, a future appeal on that basis would most likely be futile.

{¶ 18} We are cognizant of the fact that Sosnoswsky dismissed her complaint in probate court prior to the general division trial court's ruling dismissing her claims in the general division. But the dismissal in probate court was made pursuant to Civ.R. 41(a) and was without prejudice; therefore, with the operation of the savings statute, Sosnoswsky can refile her claims in probate court.

{¶ 19} Finding that the general division trial court did not err when it determined that the probate division had jurisdiction over Sosnoswsky's claims, the trial court's decision is affirmed.

{¶ 20} The sole assignment of error is overruled; judgment affirmed.

PATRICIA ANN BLACKMON, J., CONCURS; MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE OPINION

{¶ 21} I dissent from the majority's decision to affirm the trial court. The Supreme Court of Ohio has stated that the probate division has no jurisdiction over claims for money damages arising from allegations of fraud. Dumas v. Estate of Dumas , 68 Ohio St.3d 405, 408, 1994-Ohio-312, 627 N.E.2d 978 ("Even though [plaintiff] seeks an order to rescind the transfer of assets of the trust * * * which order, if granted may affect the administration of [the] probate estate, her primary aim is still the recovery of monetary damages from the alleged fraud * * * [and] the issues raised * * * were solely within the jurisdiction of the general division * * *.").

{¶ 22} In this case, Sosnoswsky's complaint alleges that Lieber was the perpetrator of the offending acts: the complaint refers to improper acts that Lieber did and did not do with the money Sosnoswsky claims belonged to her. The complaint does not call into question the conduct of Koscianski as Lieber's guardian.

{¶ 23} The trial court cited Goff v. Ameritrust Co., N.A. , 8th Dist. Cuyahoga Nos. 65196 and 66016, , 1994 WL 173544, 2, 1994 Ohio App. LEXIS 1916, 5 (May 5, 1994), for the proposition that the probate court has exclusive jurisdiction over the case. However, Goff is distinguishable because it involved claims relating to the actions of the guardian, and not the ward. In this case, the claims relate entirely to the conduct of the ward. As such, the general division had jurisdiction in this case and erred by granting the motion to dismiss. I would therefore sustain the sole assignment of error and reverse and remand the case to the general division for further proceedings.


author: BRUNNER, J.

text:
    Peter CHIBINDA, et al., Plaintiffs-Appellants, v. OHIO BUREAU OF MOTOR VEHICLES, Defendant-Appellee.
    No. 17AP-117
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on April 12, 2018
    On brief: Peter Chibinda, pro se; Dora Chibinda, pro se.
    On brief: Michael DeWine, Attorney General, and Peter L. Jamison, Columbus, for appellee. Argued: Peter L. Jamison, Columbus.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiffs-appellants, Peter Chibinda and Dora Chibinda, appeal from a judgment of the Franklin County Court of Common Pleas granting judgment on the pleadings to defendant-appellee, Ohio Bureau of Motor Vehicles ("BMV"). For the following reasons, we affirm that judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} We have examined the entire record and the affidavits submitted by the parties. While these affidavits were not attached to the complaint or the answer, they are helpful in understanding the underlying background and facts of this litigation, all the while limiting our review to the appropriate standard required by law.

{¶ 3} The Chibindas are from Zambia but have lived in Ohio for over 25 years and have had driver's licenses the entire time of their Ohio residence until November 2015 when the BMV denied their applications. The Chibindas contend that they submitted all the required documentation to renew their driver's licenses. The Chibindas submitted an approved immigration form I-130 (visa petition for immediate relatives of American citizen) and a receipt for adjustment of status (Form I-485) to permanent residency (green card). These are the documents they had submitted in previous years to renew their licenses. The Chibindas argue that the BMV required them to produce valid passports, but their passports expired 20 years prior.

{¶ 4} The Chibindas filed a pro se complaint in the Franklin County Court of Common Pleas, seeking declaratory and emergency injunctive relief to require the BMV to renew their driver's licenses. The Chibindas argue in their complaint that the statutes governing the BMV do not require driver license applicants to produce valid passports and the BMV lacks the legal authority to require such documentation.

{¶ 5} The BMV filed a motion requesting the court reclassify the case category from an administrative appeal to a declaratory judgment since the relief the Chibindas sought was declaratory in nature. The trial court granted the motion and reclassified the case category.

{¶ 6} Peter Chibinda filed a purported affidavit that was not notarized. In this document, Mr. Chibinda states he came to the United States in 1990 with an F1 student visa and his wife joined him in December 1991 with an F2 visa (spouse of an F1 visa holder). After receiving his Ohio driver's license, he states he renewed it several times without any incident. In December 2012, however, Mrs. Chibinda could not renew her license. Mrs. Chibinda received a Form I-797 of her application for Form I-485 and was able to renew her license. Previously, Mr. Chibinda used his approved Form I-130, which allows him to apply for a green card, to renew his driver's license. The Chibindas hired a lawyer to help them apply for green cards.

{¶ 7} Angela Dickens, a customer service manager of the BMV, filed an affidavit and explained in her affidavit that she emailed Mr. Chibinda many times and requested documents. He emailed the requested documents, with the exception of a valid passport from Mrs. Chibinda's country of origin. Mr. Chibinda explained that they could not obtain such passports because they were "de facto dissidents" as far as their country was concerned. (Dickens' Aff. at ¶ 10, attached to Mar. 2, 2016 Def.'s Memo. Contra. Inj. Relief.) He did provide a page from Mrs. Chibinda's passport, but it consisted of a visa that expired in August 1997.

{¶ 8} Ms. Dickens stated she explained to Mr. Chibinda that the documents were not sufficient for Mrs. Chibinda to receive a nonrenewable license because the limited passport provided did not demonstrate a valid passport. A second reason for denying the application was because Mrs. Chibinda's application for an I-766 employment authorization card had been denied by U.S. Citizenship and Immigration Services ("USCIS") on November 24, 2015. The BMV could not issue her a nonrenewable driver's license even if Mrs. Chibinda provided a valid passport.

{¶ 9} Previously, the BMV issued a nonrenewable driver's license to Mrs. Chibinda because Mrs. Chibinda was able to provide an I-766 employment authorization card that was unexpired as well as a Form I-797 application for a new I-766 employment authorization card.

{¶ 10} The BMV issued a nonrenewable driver's license to Mr. Chibinda on January 30, 2014, and it expired on January 23, 2016. Mr. Chibinda provided an I-766 employment authorization card with an expiration date of December 28, 2012, as well as a Form I-797 approval notice for a case type I-130 Petition for Alien Relative dated January 23, 2014. However, Mr. Chibinda's driver's license was suspended on August 24, 2015 upon a violator compact suspension request from the state of Kentucky. (Dickens' Aff. at ¶ 13.)

{¶ 11} Ms. Dickens continued in her affidavit that the BMV did not have a record of Mr. Chibinda applying for a new nonrenewable driver's license. Regardless, the BMV could not issue one until the suspension would be resolved. And once the suspension is resolved, Mr. Chibinda would be required to submit valid USCIS documents to demonstrate legal presence in the United States in order to obtain a nonrenewable driver's license. (Dickens' Aff. at ¶ 14.)

{¶ 12} After a hearing, a magistrate issued a decision denying injunctive relief. The trial court adopted the magistrate's decision and denied the request for injunctive relief on April 29, 2016. The Chibindas filed objections. The BMV filed a motion for judgment on the pleadings, which the trial court granted on January 20, 2017.

II. ASSIGNMENTS OF ERROR

{¶ 13} The Chibindas filed a notice of appeal and raise the following issues for our review:

[1.] The Trial Court erred by ruling that because there was no final administrative decision the court can change an administrative appeal under R.C. Section 119.12 to "other."
[2.] The Trial Court committed an error by ruling that ORC 4507.01 could be construed as giving any DPS/BMV agent the authority to expand Agency Rules and Standards as mandated by the General Assembly.
[3.] The Trial Court Erred by depriving Appellants of due process right [sic].

III. STANDARD OF REVIEW

{¶ 14} A Civ.R. 12(C) motion for judgment on the pleadings may be filed "[a]fter the pleadings are closed but within such time as not to delay the trial." Franks v. Ohio Dept. of Rehab. & Corr. , 195 Ohio App.3d 114, 2011-Ohio-2048, 958 N.E.2d 1253, ¶ 5 (10th Dist.). A Civ.R. 12(C) motion "has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted." Easter v. Complete Gen. Constr. Co. , 10th Dist. No. 06AP-763, 2007-Ohio-1297, 2007 WL 853337, ¶ 8, citing Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). A trial court must construe all material allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Whaley at 581, 752 N.E.2d 267, citing Peterson v. Teodosio , 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973). "The court will grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in support of the claim(s) that would entitle him or her to relief." (Emphasis omitted.) Zhelezny v. Olesh , 10th Dist. No. 12AP-681, 2013-Ohio-4337, 2013 WL 5450882, ¶ 8, citing State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). A motion for judgment on the pleadings tests the allegations of the complaint and presents a question of law. Peterson at 166, 297 N.E.2d 113, citing Conant v. Johnson , 1 Ohio App.2d 133, 204 N.E.2d 100 (4th Dist.1964). We review the trial court's decision granting judgment on the pleadings and thereby dismissing the action according to a de novo standard. Zhelezny at ¶ 9.

{¶ 15} For a trial court to grant declaratory relief, a plaintiff must demonstrate that (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. , 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973). " 'There are only two reasons for dismissing a complaint for declaratory judgment before the court addresses the merits of the case: (1) there is neither a justiciable issue nor an actual controversy between the parties requiring speedy relief to preserve rights which may be lost or impaired; or (2) in accordance with R.C. 2721.07, the declaratory judgment will not terminate the uncertainty or controversy.' " Hill v. Croft , 10th Dist. No. 05AP-424, 2005-Ohio-6885, 2005 WL 3528839, ¶ 12, quoting Halley v. Ohio Co. , 107 Ohio App.3d 518, 534, 669 N.E.2d 70 (8th Dist.1995).

IV. DISCUSSION

A. First Assignment of Error

{¶ 16} In their first assignment of error, the Chibindas contend the trial court erred by ruling that because there was no final administrative decision, the trial court can change an administrative appeal under R.C. 119.12 to an "other" category. The trial court changed the classification of the case from an administrative appeal to an "other" civil action. By doing so, the Chibindas argue the trial court did not have jurisdiction of their appeal from an administrative order.

{¶ 17} The Chibindas did not allege in their complaint that an administrative hearing was held nor that the BMV issued an adjudicative order denying their application for driver's licenses. On page three of their amended complaint, they specifically argue there was no proper adjudication of their case at the BMV. The Chibindas argue that because the BMV is an administrative agency, this appeal from the denial of their applications for driver's licenses is an administrative appeal and, thus, the trial court could not change the classification.

{¶ 18} R.C. 119.12 provides as follows:

(A) (1) Except as provided in division (A)(2) or (3) of this section, any party adversely affected by any order of an agency issued pursuant to an adjudication * * * denying the issuance or renewal of a license or registration of a licensee, * * * may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident.

{¶ 19} Generally, an administrative appeal is appropriate when the order is issued as a result of an adjudication. Columbus S. Power Co. v. Ohio Dept. of Transp. , 10th Dist. No. 93APE09-1280, 1994 WL 67711 (Mar. 1, 1994), citing Brown v. Ohio Dept. of Transp. , 83 Ohio App.3d 879, 615 N.E.2d 1126 (10th Dist.1992). R.C. 119.01(D) defines "Adjudication" as "the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include the issuance of a license in response to an application with respect to which no question is raised, nor other acts of a ministerial nature." "An act which is an adjudication is quasi-judicial in nature, involving notice, hearing, the opportunity to introduce testimony through witnesses, and a finding or decision made in accordance with statutory authority." Columbus S. Power Co. , citing Brown at 882, 615 N.E.2d 1126. An adjudication that results in an administrative order is required for common pleas court appellate review under R.C. 119, the Ohio Administrative Procedures Act. No adjudication or an administrative order was issued by the BMV or appealed by the Chibindas in this case.

{¶ 20} We have previously determined that a declaratory judgment action is the appropriate legal vehicle for challenging the BMV's authority to consider a person's citizenship status when applying for a driver's license. See State ex rel. Sagallah v. Born , 10th Dist. No. 13AP-787, 2014-Ohio-3106, 2014 WL 3512903, ¶ 12-15. Since the nature of the Chibindas' complaint is declaratory in nature, the trial court did not err in changing the title of the case to a civil appeal. The Chibindas' first assignment of error is overruled.

B. Second Assignment of Error

{¶ 21} The Chibindas argue in their second assignment of error that the trial court erred when it held that R.C. 4507.01 could be construed to give any BMV agent the authority to expand the "Agency Rules and Standards as mandated by the General Assembly." (Chibindas' Brief at 6.) In essence, the Chibindas argue that the customer service representative who denied their applications for driver's licenses because they did not have necessary documentation, lacked the authority to make final decisions for the BMV. The Chibindas also argue that BMV rules were not effective because they were not published.

{¶ 22} But this argument differs from the allegations the Chibindas raised in their complaint. In their complaint, the Chibindas alleged the BMV exceeded its authority under both state and federal laws when it required them to produce certain documents to obtain nonrenewable licenses.

{¶ 23} R.C. 4507.09 governs the renewal of driver's licenses and the issuance and replacement of nonrenewable driver's licenses. Under R.C. 4507.09(A) and (E), the BMV must adopt rules for the issuance of nonrenewable licenses of temporary residents. R.C. 4507.09(A) ("[E]very driver's license issued to a temporary resident expires in accordance with rules adopted by the registrar of motor vehicles."). This statute also provides that "any license of a temporary resident is nonrenewable. A nonrenewable license may be replaced with a new license within ninety days prior to its expiration in accordance with division (E) of this section." Id.

{¶ 24} R.C. 4507.09(E) provides:

A nonrenewable license may be replaced with a new license within ninety days prior to its expiration upon the applicant's presentation of documentation verifying the applicant's legal presence in the United States. A nonrenewable license expires on the same date listed on the legal presence documentation, or on the same date in the fourth year after the date nonrenewable license is issued, whichever comes first. A nonrenewable license is not transferable, and the applicant may not rely on it to obtain a driver's license in another state.
In accordance with Chapter 119 of the Revised Code, the registrar of motor vehicles shall adopt rules governing nonrenewable licenses for temporary residents. At a minimum, the rules shall include provisions specifying all of the following:
(1) That no nonrenewable license may extend beyond the duration of the applicant's temporary residence in this state;
(2) That no nonrenewable license may be replaced by a new license unless the applicant provides acceptable documentation of the person's identity and of the applicant's continued temporary residence in this state;
(3) That no nonrenewable license is valid to apply for a driver's license in any other state;
(4) That every nonrenewable license may contain any security features that the registrar prescribes.

{¶ 25} R.C. 4507.09(E)(2) provides the BMV is required to adopt rules "governing nonrenewable licenses for temporary residents," and this law requires that no nonrenewable license be replaced unless the applicant provides acceptable documentation of the person's identity and continued temporary residence in this state. The BMV has accordingly promulgated administrative code provisions governing the issuance and replacement of nonrenewable licenses.

{¶ 26} Ohio Adm.Code 4501:1-1-37 defines a "nonrenewable license" as "an Ohio driver's license, * * * issued to an applicant who is not a citizen or permanent resident of the United States. A nonrenewable license shall not extend beyond the duration of an applicant's temporary residence in this state, and shall expire automatically on the same date listed on the applicant's legal presence documentation, or on the same date in the fourth year after the date the nonrenewable license is issued, whichever comes first." Ohio Adm.Code 4501:1-1-37(B) provides that a nonrenewable license may be issued to a temporary resident if the applicant presents "acceptable documents including those listed in rule 4501:1-1-21 of the Administrative Code, verifying the following: the applicant's full legal name, date of birth, social security number if ever assigned, proof of Ohio street address and legal presence in the United States, and temporary residence in this state." Ohio Adm.Code 4501:1-1-37(C) provides that a nonrenewable license may not be replaced by a new license "unless the applicant provides acceptable documentation of the applicant's full legal name, date of birth, social security number if ever assigned, proof of Ohio street address, continued legal presence in the United States, and continued temporary residence in this state. Acceptable documentation shall conform to the documents listed in rule 4501:1-1-21 of the Administrative Code."

{¶ 27} Ohio Adm.Code 4501:1-1-21 lists acceptable identification required for submission with an application for a driver's license. Ohio Adm.Code 4501:1-1-21(G)(6) sets forth a list of the types of documents that are acceptable to establish the applicant's legal presence in the United States when an individual is not a United States citizen, including "appropriate United States citizenship and immigration services (USCIS) documents that are original and valid, or like documents issued by the successor agency to the USCIS showing the dates of legal presence. The registrar may require that any documentation presented be verifiable through the verification lawful status (VLS) or systematic alien verification entitlement (SAVE) databases maintained by the federal government."

{¶ 28} The Ohio General Assembly has imbued the BMV with the authority to promulgate rules and standards in issuing nonrenewable driver's licenses and in determining the USCIS documents necessary to establish an applicant's legal status. The Supreme Court of Ohio has held that administrative agencies are to be given due deference when interpreting legislative directives. Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad , 92 Ohio St.3d 282, 750 N.E.2d 130 (2001). Thus, the BMV may promulgate rules and its employees may implement those rules about which USCIS documents are necessary to establish a nonrenewable driver's license applicant's legal status.

{¶ 29} The Chibindas additionally argue in their second assignment of error that the BMV rules had not been published and were thus not effective, since they did not appear on the BMV website. While perhaps it would have been helpful to persons like the Chibindas to have the rules published on the BMV website, the official publication of the rules are in the Ohio Administrative Code, which publication is required under state statute. R.C. 103.05. It is well-established that pro se litigants are held to the same rules, procedures, and standards as litigants represented by counsel. See Goodrich v. Ohio Unemployment Comp. Review Comm. , 10th Dist. No. 11AP-473, 2012-Ohio-467, 2012 WL 413707, ¶ 25. The Chibindas' arguments as to their second assignment of error are ineffective and lack merit. As a result, their second assignment of error is overruled.

C. Third Assignment of Error

{¶ 30} In their third assignment of error, the Chibindas argue that the trial court erred by depriving them of their due process rights by denying their objection to the BMV's motion to reclassify the case. The Chibindas misapprehend that their case was never properly classified as an administrative appeal. They argue the trial court changed the case classification and denied them due process rights, but the trial court simply reclassified the case once it determined, as classified initially, their action did not constitute an administrative appeal under Chapter 119 of the Ohio Revised Code. This was considered in the first assignment of error, and, as such, the Chibindas' third assignment of error is overruled.

{¶ 31} The foundation of the Chibindas' case is the argument that the BMV could not require them to produce a valid passport with their application for a nonrenewable driver's license. The Revised Code and the Administrative Code require that valid proof of the applicant's legal presence in the United States be offered for a license to drive a motor vehicle by one who is not a permanent resident of the United States. Ms. Dickens of the BMV testified Mrs. Chibinda's application was denied because she did not have a valid passport, and her application for an I-766 employment authorization card had been denied by USCIS. Construing the allegations in the Chibindas' amended complaint as true that the BMV denied their applications, there is still the affirmative defense offered by the BMV that Mrs. Chibinda applied for a nonrenewable driver's license, while Mr. Chibinda did not due to the Kentucky suspension of his license. Since Mr. Chibinda has not filed an application, he does not have standing to file the complaint. But on a motion for judgment on the pleadings the Chibindas' allegations are accepted as true, and drawing all reasonable inferences therefrom in their favor, they fail to state a claim upon which relief can be granted. The trial court did not err in granting the BMV's Civ.R. 12(C) motion for judgment on the pleadings.

V. CONCLUSION

{¶ 32} For the foregoing reasons, the Chibindas' three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

TYACK, J., concurs.

SADLER, J., concurs in judgment only.

      Mrs. Chibinda did not sign the original complaint so the Chibindas filed an amended complaint, which both pro se litigants properly signed.

      "It is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue." [State ex rel. Ohio Academy of Trial Lawyers v. ] Sheward , 86 Ohio St.3d [451,] 469, 715 N.E.2d 1062 [ (1999) ], citing Ohio Contrs. Assn. v. Bicking , 71 Ohio St.3d 318, 320, 1994 Ohio 183, 643 N.E.2d 1088 (1994). "The essence of the doctrine of standing is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.' " Racing Guild of Ohio, Local 304 v. Ohio State Racing Comm. , 28 Ohio St. 3d 317, 321, 28 Ohio B. 386, 503 N.E.2d 1025 (1986), quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Under traditional standing principles, a plaintiff must show, at a minimum, that he has suffered " '(1) an injury that is (1) fairly traceable to the defendant's allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.' " ProgressOhio.org, Inc. [v. JobsOhio ], 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7, quoting Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. For common-law standing, a party wishing to sue must have a "direct, personal stake" in the outcome of the case; "ideological opposition to a program or legislative enactment is not enough." Id. at ¶ 1.
      State ex rel. Walgate v. Kasich , 147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 18.