[Cite as Merryweather Mgt., Inc. v. KNL Custom Homes, Inc., 2012-Ohio-2977.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

MERRYWEATHER MANAGEMENT,                                 C.A. No.        25971
INC., dba Merryweather Real Estate

        Appellant
                                                         APPEAL FROM JUDGMENT
        v.                                               ENTERED IN THE
                                                         COURT OF COMMON PLEAS
KNL CUSTOM HOMES, INC., et al.                           COUNTY OF SUMMIT, OHIO
                                                         CASE No.   CV 2011 01 0314
        Appellees

                                DECISION AND JOURNAL ENTRY

Dated: June 29, 2012



        CARR, Judge.

        {¶1}    Appellant, Merryweather Mgt. Inc., appeals the judgment of the Summit County

Court of Common Pleas which granted judgment on the pleadings to appellee, KNL Custom

Homes, Inc. This Court reverses.

                                                    I.

        {¶2}    This controversy arises out of KNL’s refusal to honor its referral agreement with

Merryweather, whereby KNL agreed to pay a 3% commission if it was able to enter into a

contract with Ali and Azam Eghbal for the construction of a house.

        {¶3}    On January 18, 2011, Merryweather filed a complaint against KNL in which it

asserted claims for breach of contract and promissory estoppel. After obtaining leave to plead,

KNL filed its answer on March 15, 2011. On March 25, 2011, KNL filed a motion for judgment

on the pleadings pursuant to Civ.R. 12(C). Merryweather filed a brief in opposition, and KNL

replied thereto.
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       {¶4}    On May 16, 2011, the trial court issued a journal entry granting KNL’s motion for

judgment on the pleadings and dismissing the complaint with prejudice. In granting the motion,

the trial court specifically found that Merryweather is a real estate broker as defined by R.C.

4735.01(A)(7); that the underlying transaction was illegal due to the fact that the parties’

“Building Referral Agreement” was deficient as to numerous requirements set forth R.C.

4735.55; and that Merryweather’s promissory estoppel claim also failed due to the failure to

comply with R.C. 4735.55.

       {¶5}    Merryweather filed a notice of appeal on June 9, 2011. On appeal, Merryweather

raises two assignments of error.

                                               II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
       KNL’S MOTION FOR JUDGMENT ON THE PLEADINGS WITH RESPECT
       TO MERRYWEATHER’S CLAIM FOR BREACH OF THE BUILDER
       REFERRAL AGREEMENT.

       {¶6}    In its first assignment of error, Merryweather argues that the trial court erred in

granting KNL’s motion for judgment on the pleadings. This Court agrees.

       {¶7}    In support of its assignment of error, Merryweather argues that the trial court

erroneously concluded that its agreement with KNL, designated by the parties as a “Builder

Referral Agreement,” was an agency agreement subject to the requirements of R.C. 4735.55.

With respect to the specific terms of the agreement, Merryweather contends that it reached a

third party agreement with KNL where KNL would pay a 3% referral fee if it reached a contract

with Ali and Azam Eghbal for the construction of a house. Merryweather emphasizes that the

agreement did not involve the sale of any existing real estate, and that the Eghbals, who
                                                 3


ultimately entered into a contract with KNL for the construction of a house, were not parties to

the referral agreement.

       {¶8}    Civ.R. 12(C) states, “After the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings.” “Under Civ.R. 12(C),

dismissal is appropriate where a court (1) construes the material allegations in the complaint,

with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true,

and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim

that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d

565, 570 (1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992).

Thus, Civ.R. 12(C) requires a determination that there are no material factual issues and that the

movant is entitled to judgment as a matter of law. Pontious, 75 Ohio St.3d at 570, citing

Burnside v. Leimbach, 71 Ohio App.3d 399, 403 (10th Dist.1991). Thus, a reviewing court will

reverse judgment on the pleadings if the plaintiff can prove any set of facts that will entitle it to

relief. Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 163 (9th Dist.1994).

       {¶9}    Merryweather’s claims for breach of contract and promissory estoppel were

premised on its assertion that KNL had failed to pay an agreed upon referral fee after it entered

into a contract with the Eghbals for the construction of a house. In its motion for judgment on

the pleadings, KNL characterized the agreement as an “agency agreement” that was subject to

the requirements set forth in R.C. 4735.55. In regard to the contract claim, KNL argued the

agreement was unenforceable and void because it did not meet the requirements of R.C. 4735.55.

KNL further argued that Merryweather did not actually perform any services that would entitle it

to receive a commission.      With respect to the equitable estoppel claim, KNL argued that

Merryweather, as a real estate entity, is charged with having knowledge of pertinent statutory
                                                4


authority, and should not be permitted to recover under a quasi-contract theory when it has acted

outside the scope of statutory authority. Finally, KNL argued that the entire complaint should be

dismissed because Ohio law only permits licensed real estate brokers to recover unpaid

commissions and Merryweather had failed to allege it was a licensed broker in its complaint.

       {¶10} The trial court ultimately granted KNL’s motion for judgment on the pleadings on

May 16, 2011. In its judgment entry, the trial court emphasized that “[t]he very letterhead and

language of the Builder Referral Agreement identifie[d] [Merryweather] as being a broker in this

transaction.” The trial court found that “[Merryweather] was acting for [KNL] by procuring

‘customers’ to sign contracts with the ‘Builder’ for the construction of homes, which is an

improvement on the land.”      The trial court concluded that, based on the language of the

agreement and the statutory definition of real estate broker, Merryweather was, in fact, a real

estate broker and the parties’ agreement was thereby subject to the requirements of R.C. 4735.55.

The trial court subsequently concluded that the agreement violated R.C. 4735.55 in that it did not

contain: (1) an expiration date; (2) a statement regarding prohibition of discrimination in real

estate transactions in accordance with the Ohio and federal fair housing law; (3) a statement

defining “blockbusting” and that it is illegal; and (4) a copy of the United States department of

housing and urban development equal housing opportunity logotype.              In light of these

deficiencies, the trial court found the contract to be unenforceable under Ohio law and concluded

that KNL was entitled to judgment as a matter of law on the contract claim. With respect to the

promissory estoppel claim, the trial court concluded that because the underlying transaction was

“illegal” under Ohio law, the “underlying transaction [cannot] shed its illegal status and become

enforceable under a theory of promissory estoppel.”
                                                5


       {¶11} The trial court’s judgment was premised on its conclusion that Merryweather was

acting as a “real estate broker” as defined by R.C. 4735.01(A)(7), which states:

       “Real estate broker” includes any person, partnership, association, limited liability
       company, limited liability partnership, or corporation, foreign or domestic, who
       for another, whether pursuant to a power of attorney or otherwise, and who for a
       fee, commission, or other valuable consideration, or with the intention, or in the
       expectation, or upon the promise of receiving or collecting a fee, commission, or
       other valuable consideration does any of the following:

       (7) Directs or assists in the procuring of prospects or the negotiation of any
       transaction, other than mortgage financing, which does or is calculated to result in
       the sale, exchange, leasing, or renting of any real estate[.]

       {¶12} Pursuant to R.C. 4735.01(B), “real estate” includes, “leaseholds as well as any

and every interest or estate in land situated in this state, whether corporeal or incorporeal,

whether freehold or nonfreehold, and the improvements on the land, but does not include

cemetery interment rights.”

       {¶13} Pursuant to R.C. 4735.51(B), an “agency agreement” is defined as “a contract

between a licensee and a client in which the client promises to pay the broker a valuable

consideration, or agrees that the licensee may receive a valuable consideration from another, for

performing an act that requires a real estate license under this chapter.”            An “agency

relationship” is a “relationship in which a licensee represents another person in a real estate

transaction.” R.C. 4735.51(A). A “licensee” is defined as “any individual licensed as a real

estate broker or salesperson by the Ohio real estate commission pursuant to this chapter.” R.C.

4735.51(J). A “client” is “a person who has entered into an agency relationship with a licensee.”

       {¶14} Pursuant to R.C. 4735.55, each written agency agreement shall contain all of the

following:

       (A)(1) An expiration date;

       (2) A statement that it is illegal, pursuant to the Ohio fair housing law, division
       (H) of section 4112.02 of the Revised Code, and the federal fair housing law, 42
                                                 6


       U.S.C.A. 3601, as amended, to refuse to sell, transfer, assign, rent, lease, sublease,
       or finance housing accommodations, refuse to negotiate for the sale or rental of
       housing accommodations, or otherwise deny or make unavailable housing
       accommodations because of race, color, religion, sex, familial status as defined in
       section 4112.01 of the Revised Code, ancestry, military status as defined in that
       section, disability as defined in that section, or national origin or to so
       discriminate in advertising the sale or rental of housing, in the financing of
       housing, or in the provision of real estate brokerage services;

       (3) A statement defining the practice known as “blockbusting” and stating that it
       is illegal;

       (4) A copy of the United States department of housing and urban development
       equal housing opportunity logotype, as set forth in 24 C.F.R. 109.30, as amended.

       (B) Each written agency agreement shall contain a place for the licensee and the
       client to sign and date the agreement.

       (C) A licensee shall furnish a copy of any written agency agreement to a client in
       a timely manner after the licensee and the client have signed and dated it.

       {¶15} This Court has stated “[Civ.R. 12(C)] provides only that the court may consider

the pleadings in rendering its judgment. All reasonable inferences must be made in favor of the

nonmoving party. Pinkerton v. Thompson, 174 Ohio App.3d 229, 2007-Ohio-6546, ¶ 18 (9th

Dist.). Where the action is based upon an agreement which is written, then its terms govern the

rights and obligations of the parties.” Carolyn Riley & Assoc. Inc. v. Falb, 9th Dist. No 13083,

1987 WL 16987 (Sept. 16, 1987). A copy of the “Builder Referral Agreement” was attached to

and incorporated into the complaint pursuant to Civ.R. 10. The agreement was reduced to

writing on Merryweather’s stationary, which states in the heading that Merryweather is engaged

in multiple business endeavors, namely investment, development, management, and brokerage.

The agreement identifies Merryweather as “Broker,” Betty Wulf as “Agent,” KNL as “Builder,”

and Ali and Azam Eghbal as “Customer[s].” The agreement does not specify the entity to which

the Eghbals are a “Customer,” nor does it specify how the Eghbals first came to have a

relationship with either Merryweather or KNL. The agreement is also devoid of any reference to
                                                 7


an existing piece of land. The substantive language of the agreement merely states that “Builder

agrees to pay a commission in the amount of 3% of contract price to Merryweather Real Estate

for providing services designed to facilitate a building contract between [the] above mentioned

Builder and Customer.”        While the agreement was signed by representatives of both

Merryweather and KNL, it was not signed by the Eghbals.

       {¶16} A review of the terms of the referral agreement reveals that judgment on the

pleadings was not appropriate in this case because questions of material fact exist in regard to the

nature of the relationship between Merryweather, KNL, and the Eghbals. The foremost question

is whether Merryweather was acting as a “real estate broker” as defined by R.C. 4735.01(A)(7)

when it entered into the referral agreement with KNL. While the referral agreement identifies

Merryweather as “broker” and references a prospective construction contract between KNL and

the Eghbals, it is unclear whether Merryweather and KNL entered into the referral agreement

with knowledge that it pertained a piece of “real estate” as defined by R.C. 4735.01(B). It is

further unclear whether Merryweather had an interest in the “sale, exchange, leasing, or renting”

of any real estate, as a real estate broker would pursuant to R.C. 4735.01(A)(7). Moreover, the

fact that KNL asserted in its answer that Merryweather “failed to provide any services in

furtherance of the [referral] agreement” suggests that there is a question of fact as to whether

Merryweather acted as a broker by directing or assisting in the procurement of clients on behalf

of KNL as contemplated by R.C. 4735.01(A)(7). Finally, there is a question of fact regarding the

extent to which the Eghbals were a party, if at all, to the referral agreement. The agency

agreement requirements set forth in R.C. 4735.55 are clearly designed to make a client in a real

estate transaction aware of various public policy considerations associated with the sale, transfer,

assignment, renting, leasing, subleasing, or financing of real estate. Here, it is unclear whether
                                                8


the referral agreement resulted in any party becoming a client whereby the public policy

safeguards set forth in R.C. 4735.55 would be relevant.      Thus, as material questions of fact

remain as to the nature of the relationship between the parties identified in the referral

agreement, judgment on the pleadings was not proper in this case.

       {¶17} Merryweather’s first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
       KNL’S MOTION FOR JUDGMENT ON THE PLEADINGS WITH RESPECT
       TO MERRYWEATHER’S CLAIM FOR PROMISSORY ESTOPPEL.

       {¶18} In its second assignment of error, Merryweather argues that the trial court erred in

granting KNL’s motion for judgment on the pleadings with respect to its promissory estoppel

claim. Because our resolution of the first assignment of error is dispositive of this appeal, this

Court declines to address Merryweather’s second assignment of error as it is rendered moot. See

App.R. 12(A)(1)(c).

                                               III.

       {¶19} Merryweather’s first assignment of error is sustained. This Court declines to

address the second assignment of error as it is rendered moot. The judgment of the Summit

County Court of Common Pleas is reversed, and the cause remanded for further proceedings

consistent with this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
CONCURS.

DICKINSON, J.
CONCURRING IN JUDGMENT ONLY.

       {¶19} Section 4735.55(A) of the Ohio Revised Code only applies to written “agency

agreement[s],” which are defined in Section 4735.51(B) as “contract[s] between a licensee and a

client in which the client promises to pay the broker a valuable consideration, or agrees that the

licensee may receive a valuable consideration from another, for performing an act that requires a

real estate license under this chapter.” R.C. 4735.55(A); 4735.51(B). Unlike the definition of

“[r]eal estate broker,” which “includes any person, partnership, association, limited liability

company, limited liability partnership, or corporation, foreign or domestic” that engages in
                                                 10


certain activities related to real estate, or the definition of “[b]rokerage,” which “means a

corporation, partnership, limited partnership, association, limited liability company, limited

liability partnership, or sole proprietorship issued a broker’s license,” the definition of “[c]lient”

is limited to “a person who has entered into an agency relationship with a licensee.” R.C.

4735.01(A); 4735.51(E), (F).

       {¶20} The purpose of Section 4735.55 is to protect individuals who enter into agency

agreements with sophisticated real estate brokers. The section’s beneficiaries do not include

domestic corporations like the alleged “client” in this case, KNL Custom Homes Inc. But see

R.C. 1.59(C) (“As used in any statute, unless another definition is provided . . . ‘[p]erson’

includes an individual, corporation, business trust, estate, trust, partnership, and association.”).

Upon review of the relevant statutory provisions, I conclude that KNL Custom Homes was not a

“client” under Section 4735.51(F) and, therefore, Section 4735.55 did not apply to the builder

referral agreement. Accordingly, I agree that the trial court incorrectly granted judgment on the

pleadings to KNL Custom Homes.


APPEARANCES:

MARK W. BERNLOHR and SARAH B. BAKER, Attorneys at Law, for Appellant.

TODD A. HARPST, Attorney at Law, for Appellees.
