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Ohio Division of Real Estate & Professional Licensing v. Knight

Court of Appeals of Ohio, Eighth District

July 3, 2013

OHIO DIVISION OF REAL ESTATE & PROFESSIONAL LICENSING, PLAINTIFF-APPELLEE
v.
VELMA L. KNIGHT, DEFENDANT-APPELLANT

Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-754470.

ATTORNEY FOR APPELLANT: Deborah Gooden Blade Gooden Blade Law Firm, L.L.C.

ATTORNEYS FOR APPELLEE Mike DeWine Ohio Attorney General BY: Jennifer S. M. Croskey, Allan K. S ho waiter Assistant Attorneys General Executive Agencies Section.

BEFORE: Celebrezze, J., Stewart, A.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.

{¶ 1} Appellant, Velma Knight ("Knight"), seeks review of her appeal from a decision of the Ohio Real Estate Commission ("the Commission") terminating her real estate license. She argues the common pleas court should have granted her motion for adverse judgment based on the failure of the Ohio Division of Real Estate and Professional Licensing ("the Division") to timely file a complete administrative record. The common pleas court, instead, found she did not receive a fair hearing, vacated the Commission's order, and remanded the case for a new hearing. After a thorough review of the record and law, we reverse and remand.

I. Factual and Procedural History

{¶2} Knight owned and operated Cleveland Suburban Realty Co., a small real estate firm in Cleveland, Ohio. She employed Eral Foster ("Eral") as a realtor at her firm. Eral was approached by his half-brother, Anthony Foster ("Anthony"), to act as his real estate agent to sell a property Anthony owned in Cleveland, Ohio. Eral agreed and began marketing the property in January 2007. After a deal fell through with a buyer Anthony had brought to the table, Knight thought the property would interest one of her ongoing clients, Faruq Husam Adeen. Adeen was indeed interested, and Knight acted as the real estate agent representing him. Offers were exchanged and a purchase agreement was executed by Adeen. However, at the last minute, Adeen could not get financing, and another one of Knight's clients, Scott Ockington, was substituted as the purchaser. Anthony indicated during the hearing that someone forged his signature on the Ockington purchase agreement, and the Division attorney contrasted Anthony's signature from the Adeen purchase agreement with one found on the Ockington purchase agreement. Anthony claims that he thought he was selling the home to Adeen. The transaction was consummated with Ockington, but later, Anthony filed a complaint with the Division.

{¶ 3} The Division followed up on the complaint and conducted an investigation into this transaction and others at Cleveland Suburban Realty Co. The investigation concluded with the filing of charges with the Commission alleging that Knight committed ten violations of R.C. 4735.18, and a notice of hearing was issued to Knight and Eral.

{¶ 4} The Commission assigned the case to an officer for hearing, scheduled on December 13, 2010. On that date, a blizzard was raging in Cleveland, and Knight claims she was prevented from attending the hearing in Columbus, Ohio, because of the adverse weather conditions. However, the record demonstrates that Knight did not contact the hearing officer or any other party about her inability to attend the hearing until a Division staff member called her offices and left a message asking about her attendance at the 11:30 a.m. hearing. In any event, the hearing went forward without Knight or Eral. Anthony drove from Shaker Heights, Ohio, the morning of the hearing and appeared to testify.

{¶5} The Division attorney presented the testimony of Anthony and the investigating officer for the Division, Josephine Davis-Dotstry. The hearing examiner issued a written opinion on January 27, 2011, finding Knight had committed ten violations of rules of conduct and recommended, among other punishments, revocation of her real estate licence.

{¶6} On April 6, 2011, a proceeding was held before the Commission, which appellant did attend. She asserts that she attempted to present evidence and testimony, and her exhibits were accepted by the Commission. However, the Division asserts the written decision of the Commission simply adopted the recommendation of the hearing examiner pursuant to R.C. 4735.051 without further hearing.

{¶ 7} Knight then filed an appeal of the Commission's decision in the common pleas court. The Division filed the administrative record on June 6, 2011. However, the record was not complete. According to the Division, the audio recording of the proceedings it provided to the party that transcribed it was inaudible at some points. As a result, only a partial transcript was filed. After filing several motions for extensions of time to file her brief, Knight filed a motion for adverse judgment on September 15, 2011. As a result of her motion, and without leave from the common pleas court, on October 4, 2011, the Division filed a supplement to the record with a complete transcript as well as a few letters of correspondence that Knight had sent just prior to the December 13, 2010 hearing. Knight filed a renewed motion for adverse adjudication on January 11, 2012. There she argued that the record was still not complete because documents and affidavits she submitted during the Commission hearing on April 6, 2011, were not included.

{ΒΆ8} On February 28, 2012, after reviewing the administrative record filed up to that point, the common pleas court determined that Knight did not receive a fair hearing. The common pleas court found that the Division sought to bootstrap evidence relating to Eral to Knight without doing a thorough investigation of Knight's actions. The court went through the ...


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