State ex rel. Figueroa v. Ohio Dept. of Commerce

[Cite as State ex rel. Figueroa v. Ohio Dept. of Commerce, 2019-Ohio-5200.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
Gerardo Luis Figueroa,
:
Relator,
: No. 18AP-698
v.
: (REGULAR CALENDAR)
Ohio Department of Commerce,
Division of Real Estate & :
Professional Licensing,
:
Respondent.
:
D E C I S I O N
Rendered on December 17, 2019
On brief: Madison & Rosan, LLP, and Walter J.
McNamara, IV, for relator.
On brief: Dave Yost, Attorney General, and Lydia Arko
Zigler, for respondent.
IN MANDAMUS
BEATTY BLUNT, J.
{¶ 1} Relator, Gerardo Luis Figueroa, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Ohio Department of Commerce,
Division of Real Estate & Professional Licensing ("division") to convene an informal
mediation pursuant to R.C. 4735.051(B) in connection with a complaint against Figueroa
filed with the division.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who considered the action on its merits
and issued a decision, including findings of fact and conclusions of law, which is
No. 18AP-698 2
appended hereto. The magistrate concluded Figueroa did not demonstrate that the
division has a clear legal duty to provide an opportunity for informal mediation pursuant
to R.C. 4735.051 in this case, and Figueroa has no clear legal right to such mediation.
Accordingly, the magistrate recommended this court deny Figueroa's request for a writ of
mandamus.
{¶ 3} No objections have been filed to the magistrate's decision.
{¶ 4} We have found no error in the magistrate's finding of fact or conclusions of
law. However, we modify the magistrate's decision in one respect. In the magistrate's
"Finding of Fact" No. 8, the magistrate misstates that "[p]ursuant to R.C. 4735.051(B),
requests for informal mediation by both the complainant and licensee were due ten
business days thereafter * * *." The correct section of the statute to which the magistrate
refers is R.C. 4735.051(A), and we therefore modify that portion of the sentence of
paragraph 8 under "Finding of Fact" No. 8 to state "R.C. 4735.051(A)."
{¶ 5} Therefore, we adopt the magistrate's decision as our own, including the
findings of fact as modified herein and the conclusions of law therein, and conclude that
Figueroa failed to demonstrate he had a clear legal right to an informal mediation
pursuant to R.C. 4735.051. In accordance with the magistrate's decision, the requested
writ of mandamus is denied.
Writ of mandamus denied.
BRUNNER and NELSON, JJ., concur.
________________
No. 18AP-698 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Gerardo Luis Figueroa,
:
Relator,
:
v. No. 18AP-698
:
Ohio Department of Commerce, (REGULAR CALENDAR)
Division of Real Estate & :
Professional Licensing,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on September 5, 2019
Madison & Rosan, LLP, and Walter J. McNamara, IV, for
relator.
Dave Yost, Attorney General, and Lydia Arko Zigler, for
respondent.
IN MANDAMUS
{¶ 6} Relator, Gerardo Luis Figueroa, a real estate broker licensed to practice in
the state of Ohio, seeks a writ of mandamus from this court ordering respondent, Ohio
Department of Commerce, Division of Real Estate & Professional Licensing ("division"),
to convene an informal mediation pursuant to R.C. 4735.051(B) in connection with a
complaint against relator filed with the division.
No. 18AP-698 4
Findings of Fact:
{¶ 7} 1. The division is an administrative agency vested with the authority to
regulate the activity of licensed real estate brokers and conduct disciplinary
investigations. The division's powers are generally established and described in R.C.
Chapter 4735.
{¶ 8} 2. The superintendent of the division has specific powers to investigate
complaints against licensed Ohio real estate brokers pursuant to R.C. 4735.051.
{¶ 9} 3. The division is headquartered in Columbus, Franklin County, Ohio, and
this court has original jurisdiction over the action pursuant to Article IV, Section 3(B)(1)
of the Ohio Constitution.
{¶ 10} 4. Relator is a real estate broker licensed by the division to work as such in
Ohio.
{¶ 11} 5. On September 29, 2017, the division received a complaint regarding
relator's conduct during a real estate transaction. The complaint is filed on a pre-
drafted form furnished by the division. The "Complaintant Information" [sic] rubric is
entered as "Brian Mariner (on behalf of Polaris Home Funding Corp)."
{¶ 12} 6. The complaint contains various boxes to fill out a check regarding the
substance of the complaint and procedural matters. Under "Nature of the Complaint," a
box is checked titled "Changed a form or document without my permission." Under the
rubric "Are you interested in participating in a mediation meeting," the box is checked
"no." Polaris Home Funding Corporation is ("Polaris") role in the transaction is
described as the underwriter for a loan application for a borrower represented by
relator.
{¶ 13} 7. R.C. 4735.051 governs investigation of complaints by the division and
informal mediation as a component thereof:
(A) Within five business days after a person files a signed
written complaint against a licensed real estate broker or
licensed real estate salesperson with the division of real
estate, the superintendent of real estate shall acknowledge
receipt of the complaint and send a notice to the licensee
describing the acts complained of. The acknowledgment to
the complainant and the notice to the licensee shall state that
an informal mediation meeting will be held with the
No. 18AP-698 5
complainant, the licensee, and an investigator from the
investigation and audit section of the division if the
complainant and licensee both file a request for such a
meeting within ten business days thereafter on a form
provided by the superintendent.
(B) If the complainant and licensee both file with the division
requests for an informal mediation meeting, the
superintendent shall notify the complainant and licensee of
the date of the meeting, which shall be within twenty
business days thereafter, except that any party may request
an extension of up to fifteen business days for good cause
shown. If the complainant and licensee reach an
accommodation at an informal mediation meeting, the
investigator shall so report to the superintendent, the
complainant, and licensee and the complaint file shall be
closed.
{¶ 14} 8. The division issued its formal notice of a complaint pursuant to
R.C. 4735.051 on October 31, 2017. Pursuant to R.C. 4735.051(B), requests for informal
mediation by both the complainant and licensee were due ten business days thereafter
or November 15, 2017, assuming that Friday, November 10, 2017, was observed as
Veteran's Day holiday.
{¶ 15} 9. Relator made a request for informal mediation which was timely
received by the division on November 14, 2017.
{¶ 16} 10. The division received a request for informal mediation, signed by
"Brian Mariner, Polaris Home Funding Corp." on November 17, 2017.
{¶ 17} 11. When contacted by an investigator for the division, Polaris's agent, Mr.
Mariner, indicated that he had no authority to bind Polaris with respect to mediation.
{¶ 18} 12. The division does not dispute that it has declined to issue a notice to
the parties scheduling informal mediation.
{¶ 19} 13. Relator filed his complaint for a writ of mandamus from this court on
September 14, 2018, seeking to compel the division to convene an informal mediation
pursuant to R.C. 4735.051.
{¶ 20} 14. The division filed its answer on October 19, 2018.
No. 18AP-698 6
Discussion and Conclusions of Law:
{¶ 21} In order for this court to issue a writ of mandamus, relator must show a
clear legal right to the relief sought, a clear legal duty on the part of the respondent to
provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St. 2d 141 (1967). The writ of
mandamus will not lie to compel a public body or official to act in a certain way on a
discretionary matter. State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St. 3d
247 (1997).
{¶ 22} Respondent argues that a writ may not issue in this case for three reasons:
first, the complainant's request for mediation was not timely received pursuant to
R.C. 4735.051(B), and the division therefore is not obligated to schedule such
mediation; second, relator has an adequate remedy at law through his response to the
administrative process of R.C. 4735.051(D), without resort to mediation; and third,
mediation would be a vain act because Mr. Mariner stated he has no authority to
mediate on behalf of, and thereby bind, the complainant Polaris as a participant in
mediation.
{¶ 23} The magistrate finds no merit in the latter two contentions. Mr. Mariner
filed, specifically as the agent of and on behalf of Polaris, both the complaint itself and
subsequent request for mediation. As such, Polaris, rather than Mr. Mariner, is the
complainant. If Mr. Mariner is unable to meaningfully engage in mediation and bind
his principal, it would be incumbent upon that principal, Polaris, to furnish a more
suitable representative for mediation. Nor would subsequent appeals from resolution of
the administrative process provide relator with a legal remedy, because the opportunity
for mediation early in that process, having passed, could not be retrieved.
{¶ 24} The magistrate finds, however, that because the division did not receive
timely requests for informal mediation from both parties, the division does not have a
clear legal duty to set such a mediation session, and therefore a writ of mandamus will
not issue to compel the division to do so.
{¶ 25} R.C. 4735.051(A), as set forth above, provides that informal mediation will
be provided through the division, and include the complainant, the licensee, and an
investigator from the division, "if the complainant and licensee both file a request for
No. 18AP-698 7
such a meeting within ten business days" after the division has acknowledged receipt of
the complaint, R.C. 4735.051(B) then provides that "if the complainant and licensee
both file with the division requests for an informal mediation meeting, the
superintendent shall notify the complainant and licensee of the date of the meeting."
(Emphasis added.)
{¶ 26} Relator argues that, although Polaris submitted its request two days after
the November 15, 2017 deadline, the statutory time provision is merely directory
pursuant to In re Davis, 84 Ohio St. 3d 520, 522 (1999). That case holds that when a
statute contains the word "shall," the associated provision will generally be construed as
mandatory. Relator asserts that R.C. 4735.051(A) employs the term "shall" in reference
to the division's duty to convene mediation when requested, and the untimeliness of a
request for mediation does not limit the division's mandatory duty to provide it. The
magistrate concludes, to the contrary, that the ten-business-day time limit here is a clear
limitation on the division's duty to provide informal mediation under the statute.
{¶ 27} When reviewing a complaint in mandamus, it is settled law that the legal
duty a relator seeks to enforce must be created by the legislative branch of government,
and courts may not create a legal duty enforceable in mandamus. State ex rel. Pipoly v.
State Teachers Retirement Sys., 95 Ohio St. 3d 327, 2002-Ohio-2219, ¶ 18. There is no
mandatory duty for the division to hold an informal mediation meeting in the present
case without timely receipt of requests from both the complainant and licensee. While it
is true that this court has applied Davis to hold that the deadlines set forth in R.C.
4735.051(D), which sets the time frames for the division to complete its investigation and
determine whether or not to issue charges against a licensee, are not binding, but merely
directory. Those holdings are based upon a general rule of statutory interpretation that "
'a statute providing a time for the performance of an official duty will be construed as
directory so far as time for performance is concerned, especially where the statute fixes
the time simply for convenience or orderly procedure.' " Boggs v. Ohio Real Estate
Comm., 186 Ohio App. 3d 96, 2009-Ohio-6325, ¶ 24 (10th Dist.), quoting Hardy v.
Delaware Cty. Bd. of Revision, 106 Ohio St. 3d 359, 2005-Ohio-5319, ¶ 22. See also Davis
at ¶ 24; Wightman v. Ohio Real Estate Comm., 195 Ohio App. 3d 561, 2011-Ohio-1816
(10th Dist.).
No. 18AP-698 8
{¶ 28} In the present case, the ten-business-day limit for requests for mediation
under R.C. 4735.051(A) does not provide a time for performance of an official duty, but
rather reflects a time limitation upon parties in order to invoke a legal duty on the part of
the division. The duty is conditioned by the clause, "if the [parties] both file" a timely
request. The belated notice of request for mediation provided by Polaris in the present
case failed to invoke the legal duty on the part of the division to provide such mediation,
and relator has no legal right to such mediation.
{¶ 29} In accordance with the foregoing, it is the magistrate's decision that the
division does not have a clear legal duty to provide an opportunity for informal mediation
pursuant to R.C. 4735.051, relator has no clear legal right to such mediation, and a writ of
mandamus shall not issue.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES
1. Civ.R. 53(D)(3)(a)(iii) provides that a party shall not
assign as error on appeal the court's adoption of any factual
finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).