[Cite as Levert-Hill v. Associated Holding Group, L.L.C., 2012-Ohio-3819.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97938



                              BILLIE J. LEVERT-HILL
                                                   PLAINTIFF-APPELLANT

                                                     vs.

         ASSOCIATED HOLDING GROUP, LLC, ET AL.
                                                   DEFENDANTS-APPELLEES




                    JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-750680

        BEFORE:           Sweeney, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                           August 23, 2012
ATTORNEY FOR APPELLANT

Jaye M. Schlachet, Esq.
55 Public Square
Suite 1600
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEES

Mark L. Rodio, Esq.
Frantz Ward, LLP
2500 Key Center
127 Public Square
Cleveland, Ohio 44114
JAMES J. SWEENEY, J.:

       {¶1} Plaintiff-appellant Billie J. Levert-Hill (“Hill”) appeals from the trial

court’s order that granted summary judgment and dismissed her complaint for breach of

fiduciary   duty,   breach   of   contract,   fraud,   and   detrimental   reliance   against

defendants-appellees Associated Holding Group, L.L.C., d.b.a. Prudential Select

Properties (“Prudential”) and Jason Caccamo (“Caccamo”).1

       {¶2} Prudential and Caccamo moved for summary judgment, which Hill

opposed, and the trial court granted. As set forth below, we affirm in part, reverse in part,

and remand for further proceedings.

       {¶3} On appeal, Hill raises the following assignment of error:

       The trial court improperly granted appellees’ Motion for Summary
       Judgment where there is a genuine issue of material fact remaining as to
       whether appellees acted in a dual capacity, failed to represent appellant, and
       committed misrepresentations upon which appellant relied, to her economic
       damage.

       {¶4} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. The Ohio Supreme Court

stated the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370,

1998-Ohio-389, 696 N.E.2d 201, as follows:



       Appellant’s complaint also named other defendants, however, appellant
       1

voluntarily dismissed her claims against them by notices filed on March 21, 2011
and                      April                    15,                      2011.
       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to
       judgment as a matter of law, and (3) reasonable minds can come to but one
       conclusion and that conclusion is adverse to the nonmoving party, said party
       being entitled to have the evidence construed most strongly in his favor.
       Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653
       N.E.2d 1196, paragraph three of the syllabus. The party moving for
       summary judgment bears the burden of showing that there is no genuine
       issue of material fact and that it is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.

       {¶5} The facts construed in a light most favorable to Hill, the non-moving party,

include the following:

       {¶6} In March of 2010, Hill contacted Caccamo, a real estate agent who worked

as an independent contractor for Prudential at that time.            Hill was interested in

purchasing real estate for investment purposes and was specifically inquiring about one of

Caccamo’s listings in a Shaker Heights condominium complex. Caccamo testified that

Hill was very clear she intended to purchase the property for investment and also intended

to use it as a rental property. Caccamo told her she could rent these units to tenants. In

fact, that is what Caccamo believed based on his knowledge that other units in that

complex had been advertised for rental on the Multiple Listing Service (“MLS”). He had

no idea that the Board could restrict an owner’s ability to rent the units.

       {¶7} Caccamo arranged to show Hill three units on the same day, including his

own listing, unit #206. As a formality, Caccamo had Hill sign an agency disclosure form

for unit #206, that indicated that he represented the seller in the transaction rather than

Hill. The substance of the form advised Hill that Caccamo represented the “seller” and
that “any information provided to the agent may be disclosed to the agent’s client.” In

essence, the agency disclosure form governed the agent’s use or disclosure of each parties

“confidential information.” Hill also signed two additional agency disclosure forms that

indicated that Caccamo represented her with regard to the offers made on the other units,

that is unit #404 and unit #306.

       {¶8}     Notwithstanding the agency disclosure form, Caccamo testified that he

believed he did represent Hill with regard to unit #206 as well and he understood that Hill

was relying on his services with regard to that unit and his representations about her

ability to rent out all of the units. Caccamo testified that he felt he was acting in a “dual

agency” capacity with regard to unit #206. Without dispute, Caccamo was acting solely as

Hill’s agent with regard to the other two units in the same complex, which were listed by

other agents.

       {¶9} Hill made offers on all three units on the same day, however, the only offer

accepted was the one she made on unit #206. Because Caccamo was the only agent

involved, he and Prudential received the entire real estate commission on the transaction.

In addition, Hill was assessed an additional fee of $265.00 for “brokerage service fee”

that she would not have had to pay to Prudential if an agent from a different brokerage

had represented her.

       {¶10}     Hill asked Caccamo to provide her with the condominium complex’s

bylaws “several times.” Hill never received a copy of the bylaws.2 Although there is a


       The record contains a copy of South Park Manor Condominiums Handbook
       2
condominium addendum to the purchase agreement that appears executed by Hill,

Caccamo admitted that he signed her name on it without her permission.

       {¶11} Hill even contacted Caccamo by telephone from the closing table asking

him specifically if she could rent the unit and inquiring about the bylaws. Caccamo

responded that, based on his knowledge, the unit was rentable. He told her he had the

bylaws but he never actually said that he reviewed them. Hill testified that Caccamo told

her he had the bylaws and that she could rent the unit. This is supported by Caccamo’s

own deposition testimony that includes the following exchange:

       Q: So let me just try to understand. She calls you at closing and says to this
       effect, Jason, we’ve got to be sure, I’m ready to close. Am I going to be
       able to invest and rent this property? And you said I have the bylaws, I
       believe you can do it.

       A: Yes.

       {¶12} Shortly after closing, Hill encountered an officer of the condominium’s

Board of Directors who told her that rental was strictly prohibited and that the bylaws

required the units to be owner occupied.

       {¶13} Hill contacted Caccamo, and they eventually discovered that the bylaws

contain the following restriction:

       {¶14} “1. Unless registered by August 23, 1994, leasing a unit is prohibited

without the prior, written approval of the Board.”



of Rules and Information as Defendant’s Exhibit E to Hill’s deposition, which are
referred          to         herein          as            the           “bylaws.”
       {¶15} Thereafter is a litany of requirements, procedures, and restrictions seeking

to regulate the unit owner’s ability to rent their condominium unit.

       {¶16} There is no dispute that Hill would not have purchased unit #206 or any unit

in that complex if Caccamo had told her about these provisions and restrictions. Caccamo

admitted that the ability to rent without restriction was material to Hill’s decision to write

an offer.   He was unaware that there could be restrictions of this nature. Caccamo

testified that he should have known about the restriction and should have informed Hill

about it.

       {¶17} Caccamo advised Prudential about the situation and believed they would

handle the matter by possibly paying off Hill’s mortgage and reimbursing her expenses.

However, when Hill contacted Prudential, according to Caccamo, Prudential management

 “pretended not to know anything about it.” Ultimately, Caccamo removed his license

from Prudential and went to a different brokerage, in part, because he was upset by the

way Prudential handled this incident.

       {¶18} Hill testified that she has never submitted a request to the board to rent the

unit because the president or vice president told her she could not do so. There are

documents in the record that indicate some of the units have been used as rental property.

 There is no documentation in the record that the board of directors permitted or

authorized those rentals.

       {¶19} Hill’s intent to rent the unit is further supported by her loan application

where she indicated she would not reside in the unit as well as the City’s Housing
Inspection report that indicates that the property will be used as rental property and

indicates that it will not be owner occupied.

       {¶20} Prudential and Caccamo moved for summary judgment on all of Hill’s

claims against them.      They relied on Hill’s deposition testimony and Caccamo’s

deposition testimony to support their motion. In particular, they argued that Hill’s claims

were barred because she allegedly has no damage; that the breach of fiduciary duty claim

was barred because appellees only represented the seller in the transaction; that the breach

of contract claim was barred because Hill had no contract with appellees; that her fraud

claim was barred by the “as is” clause in the purchase agreement and because there is a

possibility she could rent the unit if the board approved her request; and her “detrimental

reliance” claim failed to state a claim for relief because it is only one element of a

promissory estoppel cause of action. Although Hill opposed appellees’ motion, the trial

court granted it. Appellees defend the appeal on the same grounds they relied upon in

seeking summary judgment in the court below.

       {¶21} Hill contends that there are genuine issues of material fact as to: (1) whether

appellees were acting in a dual agency capacity; (2) whether appellees breached a

fiduciary duty by failing to properly represent her; and (3) whether appellees committed

misrepresentations upon which appellant relied to her economic detriment.

       {¶22} For the reasons that follow, we find that there are genuine issues of material

fact on at least some of Hill’s claims.

       A. Misrepresentation and Detrimental Reliance.
       {¶23} It is undisputed that Hill specifically and repeatedly asked Caccamo if she

would be able to rent units in the condominium complex to tenants. Caccamo admitted

he gave her incorrect information by telling her she could do so without any qualification.

 Hill also repeatedly asked Caccamo for the condominium bylaws, which he never gave

her. Instead, he signed her name on the condominium addendum without her permission.

 Hill even called Caccamo right before signing the closing documents to make sure she

could rent the unit to a tenant. Caccamo responded that he had the bylaws and that she

could rent the unit.    Again, he did not indicate there were any rental restrictions

whatsoever. Caccamo’s own testimony confirms that Hill would not have made an offer

on any of the condominium units if she knew of the rental restrictions.           Caccamo

admitted that he should have investigated it and should have given her the correct

information.

       {¶24} We agree that the evidence cannot, as a matter of law, sustain a claim for

intentional misrepresentation. There is no evidence that Caccamo made the

representations with actual knowledge of their untruth. However, there is plenty of

evidence from which a reasonable mind could find in favor of Hill on a theory of

negligent misrepresentation that consists of the following elements:

       One who, in the course of his business, profession, or employment, or any
       other transaction in which he has a pecuniary interest, supplies false
       information for the guidance of others in their business transactions, [and is
       therefore] subject to liability for pecuniary loss caused to them by their
       justifiable reliance upon the information, if he fails to exercise reasonable
       care or competence in obtaining or communicating the information.
Crown Property Dev. Inc. v. Omega Oil Co., 113 Ohio App.3d 647, 656, 681 N.E.2d

1343 (12th Dist.1996), quoting Haddon View Invest. Co. v. Coopers & Lybrand, 70 Ohio

St.2d 154, 436 N.E.2d 212 (1982).

       {¶25} The Sixth Appellate District has observed that the essential elements of this

claim are false information and justifiable reliance. Abbott v. Loss Realty Group, 6th Dist.

No. L-05-1107, 2005-Ohio-5876, ¶ 23.           In this case, the information was false.

Although appellees assert that Caccamo made no misrepresentation because the bylaws

technically allow owners to rent their units, there are obstacles that the owner has to clear

in order to do so, including obtaining consent of the board. Hill testified that an officer

of the board told her unequivocally that she could not rent the unit.

       {¶26} Appellees cite to references in the record that indicate some units in the

apartment complex were advertised for rent.        Specifically, Caccamo testified that a

search conducted on the MLS indicated “which properties had been for rent in 13800

Fairhill Rd.” From this appellees infer that the board must have therefore approved a

rental request. However, this is an improper inference under the applicable standard of

review that requires us to construe evidence in a light most favorable to Hill.

       {¶27} There is no evidence that the board has ever approved a request to rent any

unit in the complex. There mere fact that units were rented does not establish Board

permission; in fact, the bylaws do not require board permission for units registered prior

to August 23, 1994. It is also possible that the unit owners of the rented units were

threatened with or faced potential penalties, such as tenant eviction proceedings for any
alleged unauthorized rental. Therefore, construing the evidence in a light most favorable

to Hill, reasonable minds could find on this record that the board has never granted

permission for rental to unit owners, like Hill, who have units registered after August 23,

1994.

          {¶28} In any case, Hill’s position is that she should not have to seek permission

from anyone to rent real estate that she herself owns. This is a reasonable position, given

the representations appellees made in response to her inquiries about the property. Hill

made clear her intention to invest in real estate, which included plans to rent the unit(s) to

a tenant. There is no dispute that the information about her ability to rent the unit,

including any restrictions, was material to Hill’s decision to make an offer to purchase.

Regardless of who appellees were representing in this transaction, the law does not allow

them to provide any party with false or inaccurate information with respect to a material

factor in the party’s decision to make an offer on real estate.3

          {¶29} The doctrine of caveat emptor does not apply under these circumstances. In

this case, Hill asked for the bylaws.       Even if Prudential’s position that Hill was not

represented by any real estate agent with regard to unit #206 is correct, who was she

supposed to obtain the bylaws from if not appellees who purportedly represented the

seller?       According to both Caccamo and Hill, she was relying on him to provide her the

bylaws, and the critical rental information, for all three units she wrote offers for in the


          3
                         See,               e.g.,                  R.C.             4735.61.
condominium complex. Further, Hill never indicated that she had received the bylaws

before signing the closing documents. Instead of giving her the bylaws, Caccamo signed

the condominium addendum for unit #206 without her permission. Then, when Hill

made a final effort to make sure she could rent out her investment property, Caccamo told

her he had the bylaws and that she could rent the unit.

       {¶30} Appellees assert that Hill’s mortgage requires her to occupy the unit. This

is irrelevant to Hill’s claims against appellees for negligent misrepresentation. In any

case, Hill has presented her loan application where she disclosed to her lender that she

had no intention of residing in the property.

       {¶31} Finally, Hill has presented some evidence of damages. There is evidence

that Hill would not have even attempted to purchase the unit if she was correctly advised

about the rental restrictions. Allegedly as a direct result of receiving false or misleading

information, Hill entered a mortgage contract, invested money into the unit, and has paid

some amount of maintenance fees. She has been unable to sell her unit and, to date, has

reportedly received a single offer that was approximately half of the amount of her

purchase price. While there may be a duty to mitigate her alleged damage, she has made

out a prima facie case to survive the summary judgment stage on this claim.

       B. Breach of Fiduciary Duty.

       {¶32} Real estate agents and brokers owe fiduciary duties to their clients. Ford v.

Brooks, 10th Dist. No. 11AP-664, 2012-Ohio-943, ¶ 11.
       {¶33} In this case, a single real estate agent, Caccamo, assisted a buyer, Hill, in

writing three purchase offers on the same day for condominium units that are all in the

same complex. He allegedly represented Hill on two of the offers but not the third.

Caccamo provided Hill with incorrect or incomplete information concerning her ability to

rent all three of the units, which information was material to Hill’s decision to make

offers on all of the units.

       {¶34} Hill had never purchased real estate before, and both she and Caccamo

believed he was representing her in some capacity with respect to all three units. Ohio

law permits real estate agents to act in three different capacities: (1) as a buyer’s agent,

representing only the buyer; (2) as a seller’s agent, representing only the seller; and (3) as

a “dual agent”4 where they purportedly “represent” both parties, meaning that they cannot

disclose the “confidential information” of either party to the other.           In the other

capacities, the agent can disclose any “confidential information” he or she learns about

the other party to his or her client.

       {¶35} R.C. 4735.51(G) defines “confidential information” as

       all information that a client directs to be kept confidential or that if
       disclosed would have an adverse effect on the client’s position in the real
       estate transaction, except to the extent the agent is required by law to
       disclose such information, and all information that is required by law to be
       kept confidential.




       4
              “Dual           agency”    is      defined        by       R.C.       4735.70.
       {¶36} The information at issue in this case is not “confidential information” but

simply concerns the owner’s ability to rent the condominium unit to tenants.

       {¶37} A dual agent representing both buyer and seller has a fiduciary duty to

disclose to both of them all nonconfidential information material to the transaction.

Caveat emptor is not a defense to a claim that an agent defrauded a client. Allison v.

Cook, 139 Ohio App.3d 473, 744 N.E.2d 254 (12th Dist.2000).

       {¶38} We must construe the evidence in a light most favorable to Hill at this

point, which includes Caccamo’s admission that he was acting in a dual agency role with

respect to Hill’s offer on unit #206 regardless of the agency disclosure form. We note

that Hill was advised that Ohio law required her to sign the form. The form itself is not a

contract. In any case Hill, at the same time, signed two other disclosure forms that

indicated Caccamo was acting as her agent with regard to the other units. It would

require us to twist logic in order to find that Hill could justifiably rely on Caccamo to

provide her correct information about her ability to rent the units in the condominium

complex with respect to only two of the three units. Had her offers been accepted on

either of the other two units, clearly there was a breach of fiduciary duty with regard to

the failure to provide complete and accurate information in that regard.

       {¶39} It is possible that the jury may find that appellees did not owe Hill any

fiduciary duty based on the agency disclosure form. However, at this point, there are

genuine issues of material fact as to whether Caccamo was in fact acting as a dual agent
with regard to unit #206 and         breached a fiduciary duty by providing incorrect

information on a material term that involved non-confidential information.

        C. Breach of Contract.

       {¶40} Hill has not challenged the trial court’s ruling on this claim that she

premised in part on the purchase agreement.          Hill averred that appellees failed to

investigate whether Hill could rent the unit without restriction. Hill does not point to any

provision in the purchase agreement that required appellees to provide or investigate this

information. Although Hill refers to a “realty agreement,” none was attached to the

complaint and we have not found one in the record. Accordingly, the trial court did not

err by granting summary judgment in favor of appellees on this claim.

       {¶41} Based on the foregoing, the judgment is reversed with regard to Hill’s

claims for negligent misrepresentation/detrimental reliance and breach of fiduciary duty.

The judgment is otherwise affirmed on the remaining claims.

       It is ordered that appellees and appellant split the 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 J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
