COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67939 : ACCELERATED DOCKET KEVIN M. KAPEL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CARNEGIE MGMT. & DEVELOPMENT CORP.,: et al : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MAY 11, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 251,977 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellant: MICHAEL J. WARRELL Attorney at Law Lakewood Center West 14650 Detroit Avenue, #118 Lakewood, Ohio 44107 For defendant-appellees: ROBERT J. BIRGE Attorney at Law 27540 Detroit Road, #206 Westlake, Ohio 44145 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Plaintiff-appellant, Mr. Kevin Kapel (hereinafter "appellant"), timely appeals the trial court's granting of summary judgment in favor of defendant-appellee, Carnegie Management and Development Corporation (hereinafter "appellee" or "Carnegie"), on his claims for breach of contract, quantum meruit, unjust enrichment and fraud. The facts, as derived from the record and briefs of counsel are as follows: Appellant is a licensed real estate salesman, but not a real estate broker, working through North Coast Investors Realty. In April 1989, appellant entered into an oral agreement by which he began to act as a leasing agent for all the retail projects owned and managed by appellee. During the time of the agreement, appellant did not receive a salary from appellee. Rather, appellant was paid on a strict commission basis. On February 25, 1992, appellant prepared a memorandum setting forth what he expected to receive from appellee for commissions and finders fees pursuant to his work in obtaining - 3 - tenants for the Savannah Commons project owner by appellee. Nowhere within this memorandum is there any indication that appellant was to receive any percentage of an equity share of Savannah Commons as compensation for his work. Thereafter, appellant found tenants to fill the space available at Savannah Commons. The record shows that Carnegie duly paid appellant for the commissions which were listed in the February 25, 1992 memorandum regarding Savannah Commons. During the time of appellant's association with Carnegie, Carnegie acquired additional retail developments, including the CenterPointe Plaza. Appellant requested, and was denied, the opportunity to obtain an equity ownership interest in these properties as well. Near the end of 1992, Carnegie terminated its relationship with Mr. Kapel. On May 14, 1993, Mr. Kapel filed his complaint in Cuyahoga County Common Pleas Court, setting forth a claim to various types of real estate commissions allegedly due from Carnegie. The complaint also sought an accounting of outstanding commissions and the imposition of an equitable lien and/or a constructive trust against the Savannah Commons and CenterPointe Plaza projects. Defendant-appellee thereafter filed an answer denying the substantive allegations of the complaint and raising various affirmative defenses denying liability under its agreement with plaintiff-appellant. Appellee subsequently filed a motion for summary judgment on June 6, 1994, supported by an affidavit, excerpts from the - 4 - deposition testimony of Mr. Kapel and several documents concerning the transaction. Appellee's motion argued that appellant was statutorily barred from bringing an action against the appellee pursuant to R.C. 4735.21 since Mr. Kapel was merely a real estate salesman and not a licensed real estate broker. Moreover, appellee argued that Mr. Kapel did not fit within the "regular employee" exception to R.C. 4735.21 found in R.C. 4735.01(K). In addition, appellee argued that there was no writing between the parties which would satisfy the statute of frauds. The record shows that plaintiff-appellant did not subsequently respond to defendant-appellee's motion for summary judgment nor file a timely motion for a continuance to do so. On August 9, 1994, the trial court granted summary judgment in favor of defendant-appellee and dismissed the case. Thereafter, plaintiff-appellant filed a motion to file a brief instanter, but that motion was denied. Appellant timely appeals from the granting of appellee's motion for summary judgment raising the following assignments of error for our review: 1. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S ENTIRE ACTION SINCE CAUSES OF ACTION SET FORTH IN THE COMPLAINT WERE NOT ENCOMPASSED BY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. 2. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE ISSUE OF PLAINTIFF'S STATUS AS EITHER AN EMPLOYEE OR INDEPENDENT CONTRACTOR. - 5 - 3. THE TRIAL COURT ERRED IN FINDING THAT THE STATUTE OF FRAUDS BARS ANY PART OF PLAINTIFF'S CLAIM. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with the utmost caution, resolving doubts and construing evidence against the moving party and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. To be successful, a motion for summary judgment must demonstrate that (1) there is no genuine issue as to any material fact and (2) the moving party is entitled to judgment as a matter of law. Id. at 3. I. Each of appellant's assignments of error requires this court to consider the position and relationship which Mr. Kapel maintained with Carnegie. Since the determination of this threshold question will necessarily decide the outcome of all of appellant's assignments of error, we will discuss it first. R.C. 4735.21 limits who may bring an action for commissions or other compensation involving real estate. It states, in pertinent part, as follows: No right of action shall accrue to any person, partnership, association, or corporation for the collection of compensation for the performance of the acts - 6 - mentioned in section 4735.01 of the Revised Code, without alleging and proving that such person, partnership, association or corporation was licensed as a real estate broker or foreign real estate dealer. * * * *** Nor shall any real estate salesman or foreign real estate salesman commence or maintain any action for a commission or other compensation in connection with a real estate or foreign real estate brokerage transaction, against any person except a person licensed as a real estate broker under whom he is licensed as a salesman at the time the cause of action arose. (Emphasis added.) The "acts mentioned in section 4735.01" include, but are not limited to, the following: (A) (1) Sells, exchanges, purchases, rents, or leases, or negotiates the sale, exchange, purchase, rental or leasing of any real estate; (2) Offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of any real estate; * * * (5) Operates, 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; * * * (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; (8) Is employed by or on behalf of the owner of lots, or other parcels of real estate, at a stated salary, or upon a - 7 - commission, or upon a salary and commission basis or otherwise, to sell such real estate, or any parts of it, in lots or other parcels, and who sells, exchanges, or offers, attempts, or agrees to negotiate the sale or exchange of any such lot or parcel of real estate; *** In the present case, the dispositive issue is whether appellant's actions in regard to Carnegie amounted to his being a "real estate broker" as defined in R.C. 4735.01. The evidence in the record clearly shows that the appellant is not a licensed real estate broker as defined in R.C 4735.01, et seq; rather, it is clear that the appellant is a real estate salesman with his license under North Coast Investors Realty. R.C. 4735.01(C) defines a real estate salesman as the following: *** any person 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, for compensation or otherwise. If appellant was indeed a real estate salesman under the control of North Coast Investors Realty, he would be barred from bringing an action against Carnegie. Appellant, if owed any compensation at all, would be limited to maintaining an action against the licensed real estate broker. See, Hanes v. Davis (1992), 62 Ohio Misc.2d 468, 472. However, in his brief on appeal, appellant claims that he falls within the "regular employee" exception to R.C. 4735.21 found in R.C. 4735.01(K), which states, in pertinent part, as follows: - 8 - (K) The terms "real estate broker," "real estate salesman," *** do not include a person *** who performs any of the acts or transactions specified or comprehended in division (A) of this section, whether or not for, or with the intention, in expectation, or upon the promise of receiving or collecting a fee, commission, or other valuable consideration: (1) With reference to real estate situated in this state or any interest in it owned by such person, partnership or acquired on his own account in the regular course of, or incident to the management of the property and the investment in it. This section was applied and explained in Leatherbury v. Reagan (1987), 34 Ohio App.3d 291, at 293. Therein, the court stated as follows: The conclusion is that R.C. 4735.01(K) contains an exemption from the operation of R.C. 4735.21 of a regular employee, who does not own or have an interest in real estate, when the regular employee performs real estate services or activities for another person or association who owns real estate. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Before the trial court, appellant completely failed to respond to appellee's motion for summary judgment. In addition, before this court, appellant has failed to provide a scintilla of evidence to raise any issue as to whether he was a "regular employee" of the appellee. Appellant merely asserts that he was under the control of the appellee. Moreover, appellant stated during his deposition that - 9 - he dealt with other property owners at the same time that he was working with appellee. In contradiction to appellant's assertion, attached to appellee's motion for summary judgment was the affidavit of the president of Carnegie, Dr. Rustom Khouri. In his affidavit, Dr. Khouri stated that the appellant was an independent real estate salesman working through North Coast Investors Realty. Dr. Khouri stated that the appellant never received a salary from Carnegie; rather, appellant received a commission for procuring tenants for projects managed by Carnegie. In addition, Dr. Khouri stated that Carnegie had paid appellant for the commission for each and every lease that appellant had procured on behalf of Carnegie. Furthermore, appellant's contention that he was the employee of Carnegie runs afoul of the law regarding real estate salesman. A real estate salesman is required to be under the supervision of a licensed real estate broker in all of his activities relative to the sale of real property. Fulton v. Aszman (1982), 4 Ohio App.3d 64. Appellant attempts to claim that he was an employee of Carnegie even though Carnegie is not a licensed real estate broker. Therefore, it is clear from the evidence before this court that appellant was not an "employee" of Carnegie and did not fall within the "regular employee" exception of R.C. 4735.01(K) as explained in Leatherbury. As such, appellant was barred from bringing an action for commissions under R.C. 4735.01. - 10 - Having found that appellant is barred from pursuing a claim under R.C. 4735.01, it does not matter that the appellant also claims causes of action under the theories of breach of contract, fraud, quantum meruit and unjust enrichment. If the appellant is barred from pursuing a claim for commissions by statute, then the court could not reach for equitable or other forms of relief in order to defeat the public policy adopted by the legislature. Leatherbury v. Reagan, supra; S.D. Stanson Inc. v. McDonald (1946), 147 Ohio St. 191. Therefore, we conclude that the trial court did not err in granting summary judgment in favor of Carnegie and dismissing the entire action brought by Mr. Kapel. Construing the evidence most in favor of appellant, there exists no genuine issues of material fact upon which appellant could maintain his actions. Summary judgment in favor of appellee was properly granted as a matter of law. Accordingly, appellant's first, second and third assignments of error are overruled. - 11 - This cause is affirmed. 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 Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, PRES. JUDGE DONALD C. NUGENT, JUDGE ANN DYKE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .