COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67918 TERMARC MANAGEMENT COMPANY : : ACCELERATED Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION 2216 WARRENSVILLE CENTER : PARTNERS : PER CURIAM : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 270610 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: DALE F. PELSOZY, ESQ. WILLIAM A. BARNETT, ESQ. BERTSCH, MILLICAN & ELIZABETH A. RADER, ESQ. WINSLOW CO., L.P.A. 3100 Hamilton Avenue 1280 West 3rd Street Cleveland, Ohio 44114 Cleveland, Ohio 44113 NICHOLAS D. SATULLO, ESQ. REMINGER & REMINGER CO., L.P.A. The 113th St. Clair Building Cleveland, Ohio 44114 - 2 - PER CURIAM: Appellant filed a complaint against appellee May 17, 1994, alleging that appellee owed appellant $2,208.69 in management fees. Appellant also claimed that appellee violated their contract by hiring a different leasing and management company to perform those services for its commercial property. Benet Rosenthal owns and operates appellant, Termarc Management Company ("Termarc Mgmt."). He is also one of the partners of appellee 2216 Warrensville Center Partners, a general partnership. Because of his status as part owner of the property, Rosenthal qualifies for an exception to R.C. 4735.21. R.C. 4735.21 requires that one be a licensed real estate broker before a right of action accrues to recover compensation for performing any of the acts listed in R.C. 4735.01(A). Leasing and managing a building open to the public as tenants are listed in R.C. 4735.01(A)(5) as acts which require a real estate license. Appellee filed its Civ.R. 12(B)(6) motion to dismiss for failure to state a claim on June 8, 1994. The basis of the motion was appellant's failure to allege that Termarc Mgmt. was a licensed real estate broker. The complaint alleges that Rosenthal, the owner and operator, has an exception to the license requirement by virtue of his ownership share in the property under R.C. 4735.01(K)(1). However, appellant Termarc Mgmt., does not own any part of the property and therefore does not qualify for the exception. - 3 - Attached to appellee's motion to dismiss is a letter from the Ohio Department of Commerce, Real Estate Division, which gives its legal interpretation of the licensing requirements under R.C. 4735.02 and the corresponding definitions in R.C. 4735.01. The letter is not authenticated and presents no evidence of any facts relevant to the case. It is strictly the governmental department's legal opinion as to the statutory licensing requirements. On August 22, 1994 the court granted appellee's motion to dismiss, agreeing that Termarc Mgmt. failed to establish that it was a licensed real estate broker or a foreign real estate dealer. Appellant filed a timely notice of appeal, asserting two assignments of error. I THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF/APPELLANT IN GRANTING DEFENDANT/APPELLEE'S CIVIL RULE 12(B)(6) MOTION TO DISMISS. Appellant claims that the trial court improperly relied upon the letter submitted with appellee's motion to dismiss. Appellant asserts that the court could not have found that the complaint failed to state a claim without relying upon the governmental agency's interpretation of the licensing law. Appellant's argument is not well taken. The court could very well have disregarded the attached letter in coming to its conclusion that appellant failed to state a claim. The clear language of the statute requires the person, partnership, association or corporation to allege and prove that he, she or it - 4 - was licensed as a real estate broker or foreign real estate dealer before a right of action shall accrue for the collection of compensation for any of the acts listed under R.C. 4735.01, pursuant to R.C. 4735.21. Appellant's complaint did not allege that Termarc Mgmt. was a licensed real estate broker or foreign real estate dealer. Therefore, the trial court properly granted, without reference to the attached letter of legal support, appellee's motion to dismiss. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF/APPELLEE [SIC] BY IMPROPERLY TREATING THE MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT WITHOUT GIVING THE NOTICE REQUIRED BY THE CIVIL RULE 12(B). Appellant again argues that the trial court relied upon the attached letter in coming to its conclusion. Because the court relied upon evidence outside of the pleadings, Civ.R. 56 applies. Appellant's assertion is without merit. We do not find that the lower court relied in any way upon the attached letter in rendering its decision. Therefore, the motion remained a motion to dismiss the action for a failure to state a claim, and not a motion for summary judgment. Appellant's second assignment of error is overruled. The trial court properly dismissed the action pursuant to Civ.R. 12(B)(6). We affirm the dismissal. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. _________________________________ JAMES M. PORTER, PRESIDING JUDGE _________________________________ ANN DYKE, JUDGE _________________________________ JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .