[Cite as TAP Mgt., Inc. v. Ohio Dept. of Commerce, 2021-Ohio-4390.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
TAP Management, Inc. et al. :
Appellants-Appellees, :
No. 20AP-445
v. : (C.P.C. No. 17CV-6942)
Ohio Department of Commerce, : (REGULAR CALENDAR)
Division of Securities,
:
Appellee-Appellant.
D E C I S I O N
Rendered on December 14, 2021
On brief: Dave Yost, Attorney General, and Rachel O.
Huston, for appellant. Argued: Rachel O. Huston.
On brief: Ice Miller LLP, and Matthew L. Fornshell, for
appellee. Argued: Shain Khoshbin.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} In this R.C. 119.12 administrative appeal, appellee-appellant, Department of
Commerce Division of Securities ("Division"), contends that the Franklin County Court of
Common Pleas erred in reversing the "Final Order to Cease and Desist" issued by the
Division to the appellant-appellees TAP Management, Inc., Tribbey B Joint Venture, Cody
Davis, and Tanner Reyes ("TAP Management"). The Division asserts a single assignment of
error with the judgment of the court, arguing that the trial court erred in finding that the
certain ownership interests in a business venture were not securities. TAP Management
argues that the appeal should be dismissed for lack of jurisdiction, and alternatively that
the trial court's finding was within that court's discretion.
No. 20AP-445 2
{¶ 2} This case involves a dispute over the "Tribbey B Joint Venture," a partnership
investment in oil and gas prospecting wells in Oklahoma. TAP Management is a partner in
the venture and is responsible for the day-to-day management of its activities. On
September 11, 2012, the senior vice president of TAP Management, Tanner Reyes, solicited
Mark Adams to invest in the venture. Ultimately, Adams purchased a one-half interest in
5.75 available partnership units in the venture.
{¶ 3} The Division asserts that during his time participating in the venture, Adams
was treated as a limited partner or simple share investor and was denied information and
control over the venture, as a result of the venture’s organizing documents. For this reason,
the Division asserts that shares in the venture were "securit[ies]" as defined in R.C.
1707.01(B), and were subject to its authority and regulation under R.C. Chapter 1707:
"Security" means any certificate or instrument, or any oral,
written, or electronic agreement, understanding, or
opportunity, that represents title to or interest in, or is secured
by any lien or charge upon, the capital, assets, profits,
property, or credit of any person or of any public or
governmental body, subdivision, or agency. It includes shares
of stock, certificates for shares of stock, an uncertificated
security, membership interests in limited liability companies,
voting-trust certificates, warrants and options to purchase
securities, subscription rights, interim receipts, interim
certificates, promissory notes, all forms of commercial paper,
evidences of indebtedness, bonds, debentures, land trust
certificates, fee certificates, leasehold certificates, syndicate
certificates, endowment certificates, interests in or under
profit-sharing or participation agreements, interests in or
under oil, gas, or mining leases, preorganization or
reorganization subscriptions, preorganization certificates,
reorganization certificates, interests in any trust or pretended
trust, any investment contract, any life settlement interest,
any instrument evidencing a promise or an agreement to pay
money, warehouse receipts for intoxicating liquor, and the
currency of any government other than those of the United
States and Canada, but sections 1707.01 to 1707.50 of the
Revised Code do not apply to the sale of real estate.
(Emphasis added.) Id. Based on an investigation, the Division asserted that during its
solicitation of Adams to invest in the Tribbey B Joint Venture, TAP Management had made
misrepresentations of the return on investment and comingled funds. A hearing officer held
a five-day hearing and took evidence on the Division’s cease-and-desist complaint to TAP
No. 20AP-445 3
in June 2016, and on November 21, 2016, the hearing officer issued a 21-page report and
recommendation. The report recommended that the Division should decline to issue a final
cease-and-desist order, in part because Adams’ interest in the joint venture did not
constitute a "security" under R.C. 1707.01. In reaching that conclusion, the hearing officer
found that Adams' interest in the joint venture gave Adams rights of management control
and also that he exercised those rights. Based on that finding, the hearing officer concluded
that Adams' interest in the joint venture was as a partner with management control and
therefore was not a "security."
{¶ 4} The Commissioner of the Division rejected the hearing officer’s
recommendation. On July 26, 2017, the Division issued TAP Management a "final order to
cease and desist," finding that under the terms of the joint venture, "none of the non-
managing partners could make or approve any business decisions impacting the joint
venture on their own; they needed to amass a majority vote to take action," and that the
terms of the venture agreement gave partners "very little if any actual control over the
venture." (Ex. A, at ¶ 20-21 attached to Aug. 2, 2017 Notice of Appeal.) The Commissioner
of the Division applied the three-part federal-securities-law test set forth in Williamson v.
Tucker, 645 F.2d 404 (5th Cir.1981) and the four-part test set forth by this court in State v.
George, 50 Ohio App.2d 297 (10th Dist.1975), and concluded that the Tribbey B Joint
Venture’s organizing agreements left "so little power in the hand of the partner or venture
that the arrangement in fact distributes power as would a limited partnership" that the
interest constituted an "investment contract," falling within the definition of a "security" in
R.C. 1707.01.
{¶ 5} On August 2, 2017, TAP Management appealed the Division's order pursuant
to R.C. 119.12, contending that the cease-and-desist order was "not supported by reliable,
probative, and substantial evidence and [was] not in accordance with law." (Aug. 2, 2017
Notice of Appeal at 2.) The Division certified its record to the Franklin County Court of
Common Pleas, and on review, the trial court reversed the Division’s order. The trial court
also applied the four-part George test, and concluded that Adams’ financial interest in the
venture "satisfies the 'managerial control' test set forth in State v. George." (Aug. 21, 2020
Decision & Entry at 18.) The court held that the "undisputed facts * * * demonstrate that
Adams possessed the right to exercise practical and actual control over the managerial
No. 20AP-445 4
decisions of the Tribbey B Joint Venture." Id. at 18-19. The trial court’s decision recited and
relied heavily on the cross-examination of Adams at the hearing regarding his rights under
the joint venture organizing agreement. Id. at 19-22 (quoting testimony). The court
observed that while the Division briefing "spent considerable time citing federal securities
law and the law of other states" to support its position, " '[i]n determining Ohio’s definition
of a security, Ohio case law must be scrutinized, rather than case law interpreting other
state or federal statutes.' " Id. at 22-23 (quoting Brannon v. Rinzler, 77 Ohio App.3d 749,
753 (2nd Dist.1991). And applying the four-part George test to the facts presented in the
record, the trial court concluded that Adams' "interest in the joint venture was not a
'security' under Ohio law, and his interest was not subject to regulation by the Ohio Division
of Securities." Id. at 19-22 (quoting testimony).
{¶ 6} The Division has appealed the common pleas court's judgment to this court.
But because our jurisdiction over administrative appeals by an agency under R.C. Chapter
119 is limited, we must first determine whether the Division’s appeal presents a legitimate
question of law or is simply a dispute over the application of settled law. R.C. 119.12(N)
provides:
The judgment of the court [of common pleas] shall be final
and conclusive unless reversed, vacated, or modified on
appeal. These appeals may be taken either by the party or the
agency, shall proceed as in the case of appeals in civil actions,
and shall be pursuant to the Rules of Appellate Procedure and,
to the extent not in conflict with those rules, Chapter 2505. of
the Revised Code. An appeal by the agency shall be taken on
questions of law relating to the constitutionality,
construction, or interpretation of statutes and rules of the
agency, and, in the appeal, the court may also review and
determine the correctness of the judgment of the court of
common pleas that the order of the agency is not supported
by any reliable, probative, and substantial evidence in the
entire record.
(Emphasis added.) Id.
{¶ 7} As the statute suggests, appeals of common pleas court judgments by the
administrative agency are limited to specific questions of the constitutionality,
construction, and interpretation of law, rather than general questions of law or fact. It has
long been the rule in this District that "[w]here, in such an appeal, the trial court has made
No. 20AP-445 5
no specific determination as to the meaning or application of a particular statute, rule or
regulation, the Court of Appeals is without jurisdiction to review the judgment of the
Common Pleas Court." Mentor Marinas, Inc. v. Bd. of Liquor Control, 1 Ohio App. 2d 219
(10th Dist.1964). paragraph three of the syllabus. See also In re Appeal of Lauderbach, 63
Ohio App.2d 157 (10th Dist.1978) and Miami-Jacobs Career College v. Ohio Bd. Of
Nursing, 10th Dist. No. 11AP-544, 2012-Ohio-1416, ¶ 9-12 (citing and quoting Mentor
Marinas and dismissing agency appeal that was "clearly based on a question of law * * *.
[But on a question] that did not involve the constitutionality, construction, or interpretation
of a statute or agency rule."). The Supreme Court of Ohio, moreover, has approved this
District’s rule. In Miller v. Dept. of Indus. Relations, 17 Ohio St.3d 226, 226-27 (1985), the
Court held that "[t]he clear language of the provision allows an agency the right to appeal
only on questions of law pertaining to state statutes as well as rules and regulations which
were promulgated by the agency," and went on to affirm this court’s dismissal of an appeal
where "crux of the controversy surrounds an interpretation of the facts and whether they
support the board's ruling." Id. at 227.
{¶ 8} The merits dispute presented in this case boils down to a relatively
straightforward question, which is reasonably stated in the Division’s assignment of error—
that is, whether "[t]he trial court erred when it found that the investment in the Tribbey B
Joint Venture was not a security under Ohio law." (Appellant's Brief at vii.) Under R.C.
119.12(N) we must determine whether this question involves the "constitutionality,
construction, or interpretation of a statute or agency rule." We conclude that it does not.
{¶ 9} The Division’s position has never been that the definition of "security" under
R.C. 1707.01(B) requires additional constitutional analysis, construction, or interpretation.
Rather, its essential contention before the hearing officer, before the trial court, and before
this court is that although the plain language contained in the solicitation and organizing
documents of the joint venture gave direct management power to individual investors—
including the power to remove TAP Management as the managing venturer by a majority
vote—that in practice that power was illusory, and therefore that Adams' investment in the
joint venture was an "investment contract" and therefore is within the definition of a
regulated "security" set forth in R.C. 1707.01.
No. 20AP-445 6
{¶ 10} The Division’s argument relies upon the very same four-part test for an
"investment contract" applied by the hearing officer and the trial court, which is set forth
in State v. George, 50 Ohio App.2d 297 (10th Dist.1975), and Brannon, 77 Ohio App.3d at
753. In George, we concluded that under Ohio law:
[T]here is an "investment contract," and thence a "security,"
when "(1) an offeree furnishes initial value to an offeror, and
(2) a portion of this initial value is subjected to the risks of the
enterprise, and (3) the furnishing of the initial value is
induced by the offeror's promises or representations which
give rise to a reasonable understanding that a valuable benefit
of some kind, over and above the initial value, will accrue to
the offeree as a result of the operation of the enterprise, and
(4) the offeree does not receive the right to exercise practical
and actual control over the managerial decisions of the
enterprise.
(Cleaned up and citations omitted.) Id. at 302-03. We went on to analyze the particular
instrument at issue in that case under that four-part test and concluded that in that case
"by the terms of the agreement, the offeree enjoyed no meaningful managerial control over
the enterprise." (Emphasis added.) Id. at 304. We therefore concluded that the fourth
prong of the George test was satisfied, and "that the trial court did not err in holding that
the transaction here constituted the issuance and sale of a security, and that such sale and
issuance were in violation of the statutes of Ohio * * *." Id. at 305. The Division’s brief
contends that the "economic realities of the Tribbey B Joint Venture" indicate that it was a
security, and that while the trial court was correct in using the four-part test in State v.
George, it "misapplied" the fourth prong of the test, because it found based on the text of
documents and the testimony of Adams himself at the Division hearing, that "Adams was
able to exercise practical and actual control over the managerial decisions of the
enterprise." (Appellant's Brief at 10-11.)
{¶ 11} On review, we think it plain that the Division’s argument does not involve
"questions of law relating to the constitutionality, construction, or interpretation of a
statute or agency rule." R.C. 119.12(N). Rather, the Division merely disagrees with the trial
court’s evaluation of the factual evidence, and therefore its conclusion. The trial court itself
stated that the basis of its reversal of the Division’s order was that shares in the Tribbey B
Joint Venture were investment contracts was "not supported by reliable, probative, and
No. 20AP-445 7
substantial evidence and is not in accordance with law." (Aug. 21, 2020 Decision & Entry at
23.)
{¶ 12} The Division does not object to the trial court’s own characterization of its
opinion. Instead, it argues that "the Division can appeal the trial court’s decision because
the trial court made a specific finding that the Tribbey B Joint Venture was not a security
under Ohio law," and argues that this finding is "a specific interpretation by the trial court
as to the meaning of a particular statute or regulation." (Appellant's Reply Brief at 4.)
{¶ 13} We disagree. In Appeal of Lauderbach, this court faced a similar argument:
[The Department of Agriculture] contends that the trial court
interpreted and applied R. C. 119.09 and attempts to bolster
this contention by the first assignment of error, contending
that the trial court erred in reversing the order of the State
Personnel Board of Review on the basis that the order did not
comply with the requirements of R. C. 119.09. A review of the
record, however, reveals that the trial court did not reverse the
order for noncompliance with R.C. 119.09 but, instead,
reversed the order solely because it was not supported by
reliable, probative, and substantial evidence. Merely asserting
an assignment of error upon an issue which would give rise to
a right of appeal pursuant to R.C. 119.09 cannot confer
jurisdiction upon this court. As indicated, we find that the sole
predicate upon which the trial court's judgment was based
was the factual issue that the order appealed from was not
supported by reliable, probative, and substantial evidence.
Accordingly, "the agency" has no right of appeal under R. C.
119.12, there being no question of law relating to the
constitutionality, construction, or interpretations of statutes
and rules determined by the trial court.
Appeal of Lauderbach, 63 Ohio App.2d at 160-161. The Division has attempted an
argumentative move analogous to the one we rejected in Appeal of Lauderbach. The
Division does not suggest that the George test is unconstitutional, unclear, or does not
comport with the text of R.C. 1707.01. Instead, it argues that every application of the test is
a "a specific interpretation by the trial court as to the meaning of a particular statute or
regulation" and therefore confers jurisdiction on this court. (Appellant's Reply Brief at 4.)
In essence, the Division asserts that routine application of the four-part George test to the
facts of the Tribbey B Joint Venture must of necessity turn the case into an issue of statutory
interpretation. But that is only true insofar as every application of a test to facts affects the
reach of a statute—it is not itself a "question[] of law relating to the constitutionality,
No. 20AP-445 8
construction, or interpretation of a statute or agency rule." R.C. 119.12(N). The Division’s
argument turns every factual question regarding the existence of an investment contract
into a legal issue that it can appeal. The limited jurisdiction of this court to review agency
appeals simply does not reach that far.
{¶ 14} The Division argues that while it is undisputed that Adams possessed,
reviewed, and signed the Tribbey B Joint Venture documents prior to investing in the
venture and also that he both participated in meetings of the partners in the venture, and
voted on management decisions, that economic realities outside the plain words of the
documents rendered those powers illusory. The Division’s argument is plainly a challenge
to a factual determination made by the trial court. Accordingly, on review of this case we
conclude that pursuant to R.C. 119.12(N) we lack jurisdiction to resolve the factual dispute
presented by the Division. We therefore dismiss this appeal.
Appeal dismissed.
LUPER SCHUSTER and MENTEL, JJ., concur.