[Cite as Dundics v. Eric Petroleum Corp., 2017-Ohio-640.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

THOMAS DUNDICS, ET AL., 

 PLAINTIFFS-APPELLANTS, 

V. 

ERIC PETROLEUM CORPORATION, ET 

AL., 

 DEFENDANTS-APPELLEES. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CASE NO. 15 MA 0156 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 2014 CV 02981 

JUDGMENT: Affirmed 

JUDGES: 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Hon. Carol Ann Robb 

Dated: February 17, 2017 
- 2 - 

APPEARANCES: 

For Plaintiffs-Appellants Attorney Thomas Hull II 

Attorney David Detec 

201 East Commerce Street 

Youngstown, Ohio 44503-1541 

For Defendants-Appellees 

For Amicus Curiae 

Attorney Thomas Hill 

6075 Silica Road, Suite A 

Austintown, Ohio 44515-1053 

Attorney Timothy McGranor 

Attorney Mitchell Tobias 

52 East Gay Street 

P.O. Box 1008 

Columbus, Ohio 43216-1008 

 

 
[Cite as Dundics v. Eric Petroleum Corp., 2017-Ohio-640.]

DONOFRIO, P.J. 

{¶1} Plaintiffs-Appellants, Thomas Dundics and IBIS Land Group, Ltd., 

appeal the dismissal of their complaint by the Mahoning County Court of Common 

Pleas for failure to state a claim upon which relief can be granted.1

{¶2} Appellants filed a complaint on November 14, 2014 against 

Defendants-Appellees, Eric Petroleum Corporation and Bruce Broker. Appellants’ 

complaint included five counts. In count one of their complaint, Appellants alleged 

that they entered into an agreement with Appellees whereby Appellants would find 

property owners, negotiate gas leases, and work with Appellees to obtain executed 

gas leases. For compensation, Appellants alleged they were to receive $10.00 per 

leased acre and a 1% working interest in all wells placed on the leased acreage. 

Appellants further claimed in their complaint that oil and gas leases are not real 

estate and that, therefore, they did not need to be licensed real estate brokers to 

perform these services for Appellees. Appellants complained that they performed 

their end of the bargain and received some compensation. Now, Appellants 

complain, the leases may have been sold but Appellees refuse to provide an 

accounting or pay the monies due Appellants for services rendered. In counts two, 

three, four, and five of their complaint, Appellants assert alternative theories of 

conversion, fraud, unjust enrichment, and quantum meruit for the requested relief. 

{¶3} On January 28, 2015, Appellees filed a motion to dismiss Appellants’ 

complaint for failure to state a claim upon which relief could be granted because 

Appellants did not allege they were licensed real estate brokers as required by R.C. 

4735.21, because the breach of contract claims were barred by the statute of frauds, 

because Appellants failed to plead fraud in their complaint with the particularity 

required by Civ.R. 9(B), and because Appellants failed to include in their complaint 

sufficient allegations necessary on any legal theory pled. Appellants filed a brief in 

opposition along with a motion to amend their complaint. 

{¶4} On March 16, 2015, a hearing was held before a magistrate. The 

 

1 Amicus Curiae, American Association of Professional Landmen (Landmen), filed a Merit Brief in 

support of appellants’ Merit Brief. 
- 2 - 

magistrate filed a Magistrate’s Decision on May 27, 2015. The magistrate concluded 

that Appellants were required to have a real estate broker’s license to perform the 

alleged services and Appellants were required to allege the same in their complaint 

pursuant to R.C. 4735.21. Because they did not make such an allegation, the 

magistrate concluded that Appellants failed to state a claim upon which relief could 

be granted and that their complaint must be dismissed. The magistrate denied 

Appellants’ motion to amend their complaint because there was no set of 

circumstances that would provide them with a cognizable claim in law or equity. 

{¶5} On June 17, 2015, Appellants filed objections to the Magistrate’s 

Decision. Appellees filed a response on June 24, 2015. Appellants filed a motion for 

leave to supplement their objections on August 6, 2015, based on new information. 

On August 12, 2015, the trial court overruled Appellants’ objections but did not rule 

on Appellants’ August 12, 2015 motion for leave to supplement Appellants’ 

objections. Appellants filed a timely appeal. 

{¶6} Appellants assign two errors to the trial court. Their first assignment of 

error states: 

THE TRIAL COURT ERRED IN GRANTING 

DEFENDANTS/APPELLANTS’ [sic.] MOTION TO DISMISS. 

{¶7} In Javorsky v. Sterling Med., 7th Dist. No. 14 MA 87, 2015-Ohio-2113, ¶ 

11-12, we reiterated the standard of review regarding a trial court’s dismissal of a 

complaint for failure to state a claim upon which relief can be granted. A Civ.R. 

12(B)(6) motion to dismiss for failure to state a claim upon which relief can be 

granted is a procedural motion that tests the sufficiency of the complaint. Id. citing 

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 

1992-Ohio-73, 605 N.E.2d 378. In order to dismiss a complaint for failure to state a 

claim upon which relief can be granted, the court must find beyond doubt that the 

plaintiff can prove no set of facts warranting relief after it presumes all factual 

allegations in the complaint are true, and construes all reasonable inferences in the 
- 3 - 

plaintiff's favor. Javorsky, at ¶ 11-12 citing State ex rel. Seikbert v. Wilkinson, 69 Ohio 

St.3d 489, 490, 1994-Ohio-39, 633 N.E.2d 1128. The appellate court is required to 

independently review the complaint to determine if the dismissal was appropriate. 

Javorsky, at ¶ 11-12 citing Ferreri v. Plain Dealer Publishing Co., 142 Ohio App.3d 

629, 639, 756 N.E.2d 712 (8th Dist.2001). 

{¶8} The parties and Amicus Curiae agree that there are two decisions 

which have previously decided the issue before this court, Binder v. OG Land 

Development and Exploration, LLC N.D.Ohio No. 4:11-cv-02621, 2012 WL 1970239 

(May 31, 2012), and Wellington Resource Group, LLC v. Beck Energy Corp., 975 

F.Supp.2d 833 (S.D.Ohio 2013). The courts in Binder and Wellington reached 

conflicting results. The Binder court concluded that one who engages in the brokering 

of oil and gas leases is subject to the provisions of R.C. 4735.21. The Wellington 

court concluded that such individuals are not limited by R.C. 4735.21. Appellants 

argue that the Wellington decision is the correct one and Appellees argue Binder is 

the correct decision. 

{¶9} Appellants and Landmen (unless noted otherwise, collectively referred 

to as “Appellants”) argue that R.C. 4735.21 is inapplicable because oil and gas 

leases are not interests in real estate. Appellants assert that Wellington is directly on 

point and that its reasoning requires that the trial court’s decision be reversed. They 

suggest that to require a real estate broker’s license to perform the services which 

Appellants performed here would require needless regulation and increased costs. 

Further, Appellants argue that the recent decision of the Ohio Supreme Court in 

Chesapeake Exploration LLC., v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 

N.E.3d 185, does not invalidate Wellington nor otherwise resolve the issue regarding 

the interpretation of R.C. 4735.21. Appellees argue that oil and gas rights are real 

estate under Ohio law and that the decisions interpreting the nature of these rights, 

including the recent decision by the Ohio Supreme Court in Buell, support the 

decision of the trial court. 

{¶10} R.C. 4735.21 provides, in pertinent part: 
- 4 - 

No right of action shall accrue to any person, partnership, association, 

or corporation for the collection of compensation for the performance of 

the acts 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. 

{¶11} R.C. 4735.01 defines a “real estate broker” as one who engages in 

certain specified conduct for compensation. The trial court concluded that Appellants’ 

complaint alleged that they engaged in conduct identified in the statute. Specifically, 

the trial court concluded that Appellants’ complaint alleged that they engaged in the 

following conduct identified in R.C. 4735.01(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; 

* * * 

(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; 

 R.C. 4735.01(B) defines “real estate” as including “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.” 

{¶12} In Binder, plaintiff alleged that he agreed, in return for compensation, to 

identify landowners with whom defendant could negotiate to obtain mineral rights. 

Binder at *1. Plaintiff acknowledged that some payment had been offered by 
- 5 - 

defendant but that, for reasons irrelevant to that case, he refused to sign the check. 

He then filed suit. Defendant asked that plaintiff’s claim be dismissed on the 

pleadings since plaintiff was not a licensed real estate broker pursuant to the above 

quoted statutes and, as a result, he could not maintain his lawsuit. The Binder court, 

relying on Colucy v. D & H Coal Co., 186 N.E.2d 767 (Ohio C.P. 1961), concluded 

that, under Ohio law, mineral rights such as rights to coal, oil, and gas, are “real 

estate” as defined in R.C. 4735.01(B). As a result, plaintiff’s claim was dismissed on 

the pleadings. 

{¶13} Colucy involved a plaintiff who was given the right to purchase mineral 

rights, including rights to coal, oil, and gas, for the defendant. Colucy at 771. The 

Tuscarawas Common Pleas Court concluded “that it is quite apparent that the 

service the plaintiff performed or was to perform comes within the strict definition of 

the term ‘Real Estate Broker’ as defined by the statute.” Id. 

{¶14} The year after Binder, the Wellington court reached a different 

conclusion. The Wellington court determined that oil and gas leases are not “real 

estate” under Ohio law. Wellington at 838. The court in Wellington concluded that its 

“thorough survey of Ohio case law leaves this [the Wellington] Court convinced that 

the Ohio Supreme Court, if given the occasion to rule on this issue today, would so 

hold.” Id. Referring to its prior decision in In re Frederick Petroleum Corp., 98 B.R. 

762 (S.D. Ohio 1989), the court acknowledged that the exact nature of a lessee’s 

interest under an oil and gas lease has not been clearly established in Ohio. Id. at 

839. The court then summarized a number of Ohio decisions for purposes of 

illustrating its observation that Ohio courts have treated oil and gas leases differently 

from an interest in real property. 

{¶15} Wellington refers to Detlor v. Holland, 57 Ohio St. 492, 505, 49 N.E. 

690 (1898), for the proposition that the right to produce oil and gas from a tract of 

land is not a lease but a grant of an exclusive right to produce oil and gas for the term 

of the agreement. Wellington at 839, quoting Detlor at 505-506. Detlor was an action 

to quiet title where the agreement to produce oil was limited to 90 days unless a 
- 6 - 

paying well was established within that time. It was not, and thus the court rejected 

the lessee’s argument that oil and gas was included under the general language 

“other mineral rights.” Id. at 503-504. 

{¶16} However, as the Wellington court acknowledged, in Harris v. Ohio Oil 

Co., 57 Ohio St. 118, 48 N.E. 502 (1897), the Ohio Supreme Court, stated that an oil 

and gas lease is more than a mere license and concluded that a lease to drill for oil 

and gas “is a lease of the land” and that “the lessee has a vested right to the 

possession of the land to the extent reasonably necessary * * *” Id. at 129-130. 

{¶17} And, Wellington explained, more recently, in Back v. Ohio Fuel Gas 

Co., 168 Ohio St. 81, 113 N.E.2d 865 (1953), the Ohio Supreme Court considered 

whether an instrument conveying a right and privilege to operate on land to obtain oil 

and gas and to lay pipe over the land to transfer the oil and gas should be recorded 

in the record of leases or in the record of deeds. Id. at 83. In considering whether 

such an instrument was a lease or a license, the Supreme Court discussed the 

nature of the activity of drilling for oil and gas: 

The character of the instrument of conveyance reveals that it is other 

than a grant of real property. Possession of oil and gas, having as they 

do a migratory character, can be acquired only by severing them from 

the land under which they lie, and in effect the instrument of 

conveyance in the instant case is no more than a license to effect such 

a severance. The very sale of oil and gas, separate and apart from the 

real estate surface, constitutes, in law, a constructive severance such 

as occurs in the case of sale of standing timber or growing crops. 

Id. at 87. The Court then observed that in most producing states, gas and oil in situ

are not subject to absolute ownership. Id. The Court concluded that the instrument in 

Back was, for recording purposes, a license rather than a deed of conveyance. Id. at 

89. The Supreme Court observed that many authorities hold that the owner of the 

land surface does not own the oil and gas that may be in place thereunder. Id. at 86-
- 7 - 

87. Apparently agreeing with its prior explanation in Kelly v. Ohio Oil Co., 57 Ohio St. 

317, 328, 49 N.E. 399 (1897), the Supreme Court observed that, while in the earth, 

oil is part of the realty “in which it tarries for the time being” until it is raised to the 

surface and then it becomes the subject of ownership separate from the realty. Back 

at 88-89 citing Kelly at 328. The Supreme Court held that the instrument in question 

there was a license rather than a deed and thus recording the instrument in the 

record of leases was sufficient to constitute constructive notice of its existence to a 

subsequent purchaser of the land. Back at 90. Thus, at first blush, it would appear 

that Harris (more than a mere license) and Back (no more than a mere license) are in 

conflict. 

{¶18} Appellees argue that the recent Buell decision validates the trial court’s 

decision here. Buell was an action brought in the federal district court for the 

Southern District of Ohio to quiet title to oil and gas rights against a surface property 

owner. Buell at ¶ 13. Because of the lack of available authority from Ohio courts 

regarding the interpretation of Ohio’s Dormant Mineral Act in the context of an Ohio 

oil and gas lease, the federal court certified two questions to the Ohio Supreme 

Court. Although Buell does not involve R.C. 4735.21, some of its discussion about 

the nature of oil and gas is instructive. 

{¶19} Buell observes that “[o]il and gas can be viewed as realty or personalty 

depending on the location of the oil and gas relative to the land in which it lies.” Id. at 

¶ 20. According to Buell, oil and gas underlying the surface have, in Ohio, long been 

recognized as part of the realty. Id. at ¶ 21. The interests in the surface and the 

minerals below the surface can be severed. However, even though these rights may 

be severed, the rights to the subsurface oil and gas may still affect the rights and/or 

value of the surface rights. According to Buell, absent language to the contrary in the 

conveying instrument, “a severed mineral estate is considered to include those rights 

to use of the surface as are reasonably necessary for the proper working of the mine 

and the obtaining of the minerals.” Id. at 23. 

{¶20} In Buell, the Supreme Court confronted the seemingly different 
- 8 - 

perceptions of the nature of oil and gas leases in Harris and Back. Indeed, the 

federal court suggested in its order certifying its questions to the Supreme Court that 

Harris and Back took divergent views of the nature of oil and gas leases. Buell at ¶ 

45. Buell explained that Harris and Back are “not in direct conflict” because of the 

different language in the instruments at issue in each case. Id. at ¶ 48. In Back, the 

instrument was not a lease because the grant of the oil and gas rights was “forever.” 

Id. at ¶ 46. According to Buell, the Back decision concluded that the instrument was a 

license rather than a deed of conveyance granting real property. Id. Thus, the Court 

concluded that, under the relevant statute, recording the instrument in the lease 

records rather than the deed records was sufficient constructive notice to a 

purchaser. Id. The instrument in Harris, however, was, according to Buell, 

“indisputably a lease.” Id at ¶ 47. Buell explains that Harris concluded that the Harris 

instrument is more than a mere license, “it is a lease of land * * * ” Buell at ¶ 47, citing 

Harris at 129-130. 

{¶21} Buell then notes that this court’s decision in Eisenbarth v. Reusser, 

2014-Ohio-3792, 18 N.E.3d 477 (7th Dist.), is in accord with the Columbiana County 

Common Pleas Court in Bender v. Morgan, Columbiana C.P. No. 2012-CV-378 (Mar. 

20, 2013), where the common pleas court observed that, in analyzing the meaning of 

a title transaction, the courts have “concluded that an oil and gas lease conveyed a 

fee simple determinable in the severed mineral rights subject to a reverter on 

conditions described in the lease * * * ” Buell at ¶ 51. Kramer v. PAC Drilling Oil & 

Gas, L.L.C., 197 Ohio App.2d 554, 2011-Ohio-6750, 968 N.E.2d 64, (9th Dist.) ¶ 11, 

is cited by Buell for reaching the same conclusion as Bender, i.e., an oil and gas 

lease grants a fee simple determinable to the lessee. Id. at ¶ 52. The Eleventh 

District similarly stated that the typical oil and gas lease “grants a fee simple 

determinable interest to the lessee.” Bernard Philip Dedor Revocable Trust v. 

Reserve Energy Exploration Co., 11th Dist. No. 2014-P-0001, 2014-Ohio-5383, 24 

N.E.3d 1225, ¶ 20. 

{¶22} In considering whether the services allegedly performed by Appellants 
- 9 - 

here come under the requirements set out in R.C. 4735.21, the following explanation 

in Buell is of some import: “Because the lessee also enjoys reasonable use of the 

surface estate to accomplish the purposes of the lease, the lease also similarly 

affects the surface estate. Thus, the lease affects the possession and custody of both 

the mineral and surface estates.” Id. at 60. If the lessor conveys title to either the 

surface or mineral estates to a third party, the lease is binding on those successors 

and is therefore an encumbrance that remains with the realty. Id. at ¶ 61, citing 

Eisenbarth at ¶ 30. The lease affects the value of the property. Id. at ¶ 64. The “effect 

on ownership, possession, and custody is an inherent attribute of an oil and gas 

lease.” Id.

{¶23} In light of the above, we return to the language of R.C. 4735.01(B)’s 

definition of “real estate.” Real estate “includes leaseholds as well as any and every 

interest or estate in land.” Buell reminds us that the Ohio Supreme Court has “long 

held that the use of the term ‘any’ in a phrase encompasses ‘every’ and ‘all’ 

examples of the subject described.” Id. at ¶ 34. Further, the word “includes” indicates 

a partial list. Id. at ¶ 35. This definition includes the various descriptions and 

explanations discussed above. Whether described as licenses, leases, fee simple 

determinable estates, or something else, any instrument affecting oil and gas 

necessarily affects the surface rights as well, either in terms of the right to access the 

surface for transportation, drilling, etc., or because it affects the value of the surface 

rights, it falls under the definition of “real estate.” Thus, to engage in any of the 

activities alleged here for compensation, one must have a broker’s license. 

{¶24} In further support of Appellants’ first assignment of error, the Landmen 

argue that recent proposed legislation, seeking to establish requirements governing 

oil and gas land professionals, supports its position that Chapter 4735 does not apply 

to Appellants here, even though the legislation was never adopted. But the proposed 

un-enacted legislation upon which Appellants rely is insufficient to establish a 

contrary interpretation to Chapter 4735. 

{¶25} Next, the Landmen complain that the requirements necessary to obtain 
- 10 - 

a real estate broker’s license focus on residential and commercial surface estates 

and do not contain requirements germane specifically to oil and gas. But the 

Landmen cite no authority which suggests we must find R.C. 4753.21 inapplicable 

here because the licensing requirements are less than what they might be, or that 

there should be additional requirements more specific to oil and gas rights. The 

Landmen also complain that this statute is susceptible to more than one 

interpretation and that we, therefore, should glean the General Assembly’s intent, 

including the spirit of the statute and the public policy that induced the statute’s 

enactment. However, as is discussed above, the fact that oil and gas rights are 

different does not excuse third parties who ask the courts to enforce their 

engagement with either owners of surface real estate or those who wish to extract 

subsurface oil or gas from the real estate broker’s license requirements at issue here, 

nor do the Landmen explain why the difference should compel this result. 

{¶26} As Appellees observe, this court recently confirmed the rule that inquiry 

into legislative intent, legislative history, public policy, the consequences of an 

interpretation, or other factors identified in R.C. 1.49, is inappropriate unless we find 

the statute is ambiguous. Tribett v. Sheperd, 7th Dist. No. 13 BE 22, 2014-Ohio4320, fn.1, appeal pending, 142 Ohio St.3d 1447, 2015-Ohio-1591, citing Dunbar v. 

State, 136 Ohio St.3d 181, 2013-Ohio-2163, ¶ 16. The statute is unambiguous. The 

question presented is whether a third person, with some exceptions, who uses his or 

her skills to bring together landowners with those engaged in extracting oil and gas 

from below the surface needs to have a real estate broker’s license in order to 

maintain an action for compensation for those services, as required by R.C. 4735.21. 

Answering that question requires a consideration of the nature of oil and gas leases 

under Ohio law. Although Binder and Wellington reached different results, it was not 

because the statute was ambiguous. It involved, instead, a determination of the 

meaning of the words “any and every interest or estate in land” as used in R.C. 

4735.01(B). We conclude that the right to subsurface oil and gas is such an interest. 

{¶27} As discussed above, any agreement allowing one to reach beneath 
- 11 - 

surface land for oil and gas, no matter what instrument is used to memorialize that 

agreement, necessarily affects the surface land either by allowing one of the parties 

to enter and/or use the surface land for various purposes or by affecting the value of 

the surface land. Appellees contend that third parties engaged in this process must 

have a real estate broker’s license and, unlike the Landmen, discuss the history of 

R.C. 4735.21, the statutory construction, the object of the legislation, and the nature 

of landmen. For example, Appellees point out that a 1942 Ohio Attorney General 

opinion concluded that gas and oil leases are included in the definition of real estate 

and third parties engaging in the sale, exchange, or purchase of oil and gas leases 

for compensation had to have a real estate broker’s license. Appellees also explain 

that a 1936 Ohio Attorney General Opinion that concluded that the sale of cemetery 

lots were also included in this definition resulted in a statutory amendment excluding 

the same. Appellees also argue that many landmen are excluded from the licensing 

requirement of R.C. 4735.21 by the exclusions provided in R.C. 4735.01(I)(1)(a). 

Under that provision, regular employees of “persons, partnerships, associations” are 

excluded with reference to real estate owned by such persons or entities. Neither 

Appellants nor the Landmen have replied to these representations by Appellees. 

{¶28} Appellants further argue that even if R.C. 4735.21 is applicable, they 

should nonetheless be able to pursue their fraud claim. (The Landmen do not 

address this issue). Appellants assert that there should be an exception to a claim of 

fraud in relation to R.C. 4735.21 in order to prevent one from using the law to help 

perpetrate a fraud. Appellants first rely on the syllabus in Gathagan v. Firestone Tire 

and Rubber Co., 23 Ohio App.3d 16, 490 N.E.2d 923 (9th Dist. 1985). Gathagan, as 

it pertains here, involved an alleged oral promise of employment for at least two 

years. R.C. 1335.05, a part of the statute of frauds, provides that contracts that 

cannot be completed in two years must be in writing. There, the court indicated it 

would not permit a statute designed to prevent fraud to be used as a shield to protect 

against fraud. Id. at 16. Similarly, Appellants rely on this court’s decision in Filo v. 

Liberato, 7th Dist. No. 11 MA 18, 2013-Ohio-1014, based, in pertinent part, on the 
- 12 - 

“lead object rule.” Again, however, Filo was concerned with the statute of frauds. 

{¶29} Appellees respond by arguing that Appellants cannot assert this issue 

as error because they did not present it as an objection to the Magistrate’s Decision 

in the trial court. Civ.R. 53(D)(3)(b)(iv) provides: 

Except for a claim of plain error, 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 has objected to that 

finding or conclusion as required by Civ.R. 53(D)(3)(b). 

{¶30} A fair reading of Appellants’ objections to the Magistrate’s Decision 

reflects that the argument that fraud be an exception to the requirement in R.C. 

4735.21 was not made to the trial court and thus cannot be considered on appeal. 

{¶31} Appellees also argue that, even if the fraud exception argument is 

considered, it should nonetheless be rejected. Indeed, in Binder the court concluded 

that the plaintiff’s fraud claim was barred by his failure to hold a real estate broker’s 

license as required by R.C. 4735.21. Appellees also respond to Appellants’ attempt 

to discount the decisions in Kapel v. Carnegie Management & Dev. Corp., 8th Dist. 

No. 67939, 1995 WL 277118 (May 11, 1995) and Peltier v. McCoppin, 2nd Dist. No. 

75 CA 2, 1975 WL 182192 (Aug. 19, 1975) because those cases were decided on 

summary judgment rather than for failure to state a claim on which relief can be 

granted, as here. In Kapel, the court observed that if a party is barred from pursuing 

a claim under R.C. 4735.01, it does not matter that he also claims causes of action 

under the theories of breach of contract, fraud, quantum meruit and unjust 

enrichment. Kapel at *4. If barred from pursuing a claim for commissions by statute, 

one cannot reach for equitable or other forms of relief in order to defeat the public 

policy adopted by the legislature. Id. Similarly, in Peltier, the court concluded that 

since the plaintiff incorporated the facts from his breach of contract claim into his 

fraud claim, as Appellants did here, the contract claim was barred by R.C. 4735.21, 
- 13 - 

as was the fraud claim. Appellants cite no law to the contrary. 

{¶32} Accordingly, Appellants’ first assignment of error is without merit and is 

overruled. 

{¶33} Appellants’ second assignment of error states: 

THE TRIAL COURT ERRED IN FAILING TO ALLOW 

PLAINTIFFS/APPELLANTS TO AMEND THEIR COMPLAINT TO 

CLARIFY THE FACTS AT ISSUE AND STATE A CLAIM THAT IS NOT 

BARRED BY O.R.C. 4735.21. 

{¶34} Appellants filed with the trial court what they styled an alternative 

motion to amend their complaint. In their initial motion, Appellants simply stated that, 

in the event the trial court found merit in any of the arguments offered by Appellees, 

Appellants sought leave to amend the complaint to correct any deficits in the 

pleading. Appellants offered no other reason and did not file a proposed amended 

complaint. In a subsequent pleading Appellants asserted that they had not supplied 

reasons to amend their complaint because they did not believe there was any reason 

to amend their complaint. Appellants suggest that the amendment would only be 

necessary if the trial court concluded that their claims for fraud and conversion were 

insufficiently pled. 

{¶35} The trial court ultimately did not dismiss any of Appellants’ claims 

because they were insufficiently pled. Instead, citing Walgate v. Kasich, 10th Dist. 

No. 12AP-548, 2013-Ohio-946, 989 N.E.2d 140, ¶ 35, affirmed in part and reversed 

in part, Walgate v. Kasich, 2016-Ohio-1176, the magistrate, and then the trial court, 

denied Appellants’ motion to amend the complaint because they provided no grounds 

as to why leave should be granted, no explanation of any new matters they wished to 

include in the complaint, and no explanation of how the amendment would cure any 

deficiencies in the complaint. 

{¶36} In their Objection to the Magistrate Decision, Appellants did not object 

to the denial of their alternative motion to amend their complaint. 
- 14 - 

{¶37} As Appellees point out, the trial court signed its judgment entry on 

August 3, 2015. It was not filed until August 12, 2015. Appellants, on August 6, 2015, 

filed a Motion for Leave to Supplement Plaintiff’s Objections to the Magistrate 

Decision of May 27, 2015 Based on New Information. Leave was never granted or 

denied. Appellants state therein that the reason for the filing was to support its motion 

for leave to file an amended complaint and to support the fraud allegation. Attached 

were an email from 2011, the affidavit of Appellant Dundics, and a First Amended 

Complaint With Jury Demand. In essence, in addition to the previous claims, 

Appellants now alleged that they performed consulting services directly to Appellees 

based on Appellant Dundics’ extensive oil and gas knowledge and expertise and that 

those services are not governed by R.C. 4735.21. 

{¶38} It is clear that this last filing was never considered by the magistrate or 

the trial court. As noted above, the motion for leave to supplement was not timely 

filed, leave was never granted, and, because of the timing, the trial court never 

considered the motion. Appellees draw the court’s attention, again, to Civ.R. 53(D) 

(3)(b)(iii) as interpreted in Abshire v. Mauger, 10th Dist. No. 09AP-83, 2010-Ohio787, ¶ 17, quoting Beasely v. Beasely, 4th Dist. No. 06CA821, 2006-Ohio-2000, ¶ 13: 

[N]either Civ.R. 53 nor statutory law permits a party to submit a 

memorandum supplementing her timely objections to a magistrate’s 

decision, as of right, after the time for filing objections has passed. 

Civ.R. 53(E)(3)(a) only permits a party to file objections to a 

magistrate’s decision within fourteen days of the filing of the decision. 

Courts may grant a party leave to supplement [her] objections upon 

request. 

{¶39} Here, the Magistrate’s Decision was filed on May 27, 2015. Appellants 

filed objections to the Magistrate’s Decision on June 17, 2015. In each of its 

pleadings prior to the last, Appellants offered no proposed amended complaint, no 

reason why an amended pleading should be permitted, and no proposed allegations 
- 15 - 

which might establish a different claim for relief. Instead, as Appellees note, 

Appellants asserted that they saw no need to file an amended complaint unless the 

trial court concluded that their initial claims were somehow deficient. They suggested 

no alternative legal theory or facts. Under these circumstances, we cannot conclude 

that the trial court erred in denying Appellants’ leave to amend their complaint. The 

last pleading was untimely and was never ruled upon by the trial court. 

{¶40} Accordingly, Appellants’ second assignment of error is without merit 

and is overruled. 

{¶41} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

DeGenaro, J., concurs. 

Robb, P.J., concurs.