Hubbard Family Trust v. TNT Land Holdings, L.L.C.

[Cite as Hubbard Family Trust v. TNT Land Holdings, L.L.C., 2014-Ohio-772.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY

The Hubbard Family Trust, :
Joseph Hubbard, Trustee, et al., : Case No. 12CA833
:
Plaintiffs-Appellees/Cross-Appellants/ :
Cross-Appellees, : DECISION AND
: JUDGMENT ENTRY
v. :
:
TNT Land Holdings, LLC, et al., :
:
Defendants-Appellants, :
: RELEASED: 02/25/2014
and :
:
Angela Shanks, et al., :
:
Defendants/Cross-Appellees/ :
Cross-Appellants. :

____________________________________________________________
APPEARANCES:

Stanley C. Bender, Law Offices of Stanley C. Bender, Portsmouth, Ohio, and Thomas M.
Spetnagel, Chillicothe, Ohio, for Appellants TNT Land Holdings, LLC, and Marie
Hoover.

Michael P. McNamee and Gregory B. O’Connor, McNamee & McNamee, PLL,
Beavercreek, Ohio, for Appellees/Cross-Appellants/Cross-Appellees, The Hubbard
Family Trust, Joseph Hubbard, Trustee.

Shane A. Tieman, Portsmouth, Ohio, for Defendants/Cross-Appellees/Cross-Appellants
Angela Shanks and Acceleration Enterprises, LLC, dba Realtec Real Estate.
____________________________________________________________

BROWN, J.
{¶ 1} TNT Land Holdings, LLC ("TNT"), and Marie Hoover ("Hoover")

(sometimes referred to collectively as "TNT"), defendants-appellants/cross-appellees

appeal the judgment of the Pike County Court of Common Pleas, in which the court,

pursuant to a jury verdict, entered judgment in favor of and awarded damages to The
Pike App. No. 12CA833 2

Hubbard Family Trust, Joseph Hubbard, Trustee ("Trust"), and Joseph W. Hubbard

("Hubbard") (sometimes collectively referred to as "Hubbard"), plaintiffs-appellees/cross-

appellants. Angela Shanks and Acceleration Enterprises, LLC, DBA Realtec Real Estate

(sometimes collectively referred to as "Realtec"), defendants-appellees/cross-appellants,

have filed an appeal of the trial court's judgment. Hubbard also appeals the trial court's

judgment.

{¶ 2} Hoover, along with her ex-husband, bought the subject property, a single-

family home on Lake White in Waverly, Ohio, in 1994. They made significant additions to

the original "cottage." Hoover became the owner of the home upon termination of the

marriage. She transferred the home to TNT in 2000 and her then husband, Tracy Hoover,

transferred any right he had in the home to TNT as well. Hoover is a member of TNT.

{¶ 3} Shanks is a real estate agent and broker. In 2006, Shanks began working for

Acceleration Enterprises, LLC, which does business as Realtec. In March 2007, TNT and

Shanks listed the subject home for TNT for $325,000. TNT accepted an offer for

$310,000 from a buyer, the Marions. The Marions conducted a home inspection,

returned to Shanks about two hours later with a handwritten list of problems with the

home, and then made an offer for a reduced amount. The list included issues about which

the Marions were concerned, including condensation on the turret windows, settling of

the doors and spiral staircase pad, and settling of the corner of the master bedroom.

Shanks handwrote an addendum to the purchase contract, which included an Exhibit A

("Marion contingency addendum") that listed the defects discovered by the Marions.

Shanks submitted the addendum and offer to TNT through Hoover, who rejected the

offer.
Pike App. No. 12CA833 3

{¶ 4} Thereafter, Hoover began repair work on the home, including the repainting

of the exterior, installation of retaining walls on the rear slope of the property, installation

of new windows in the turret room, replacement of a concrete pad behind the turret room,

and replacement of the garage floor.

{¶ 5} On July 28, 2007, Hubbard, who was 86 years old and resided in California,

was in Ohio for the weekend for a school and family reunion. Hubbard had long been

interested in owning a home on Lake White, and he learned there was one currently for

sale there. He and a relative, Angie Snodgrass, met Shanks at TNT's Lake White home,

and Shanks pointed out several repairs that had been done. Construction work was still

ongoing at the time. Hubbard obtained a key to the home and took an architect with him

and inspected the property soon after the walk through with Shanks. Hubbard and his

family walked through the property the next day, July 29, 2007.

{¶ 6} On July 29, 2007, Hubbard signed a purchase agreement, agreeing to pay

$320,000 for the house. An inspection addendum, which permitted Hubbard to obtain an

inspection and receive credit for repairs for any problems, was included in the purchase

contract, but Hubbard never obtained an inspection. Shanks dually represented Hoover

and Hubbard in the transaction.

{¶ 7} After Hubbard's purchase, his relative, Jeanetta Pixley, began living in the

home in November 2007. In spring 2008, Pixley began noticing several settling problems.

The deck had shifted and the sidewalk was cracked. The yard also developed a large crack.

A contractor and engineer hired by Hubbard determined the land was settling and the soil

was shifting down the slope toward the edge of the lake.

{¶ 8} Hubbard believed that many of the "repairs" undertaken by Hoover prior to

his purchase were actually designed to conceal the structural flaws and settling. On
Pike App. No. 12CA833 4

October 9, 2009, Hubbard filed a complaint, alleging fraud, negligent misrepresentation,

breach of contract, and unjust enrichment against Hoover and TNT; and breach of

fiduciary duty, negligence, and promissory estoppel against Realtec. Hubbard also

included claims against Tracy Hoover, but Hubbard dismissed those claims prior to trial.

Realtec brought claims against Pixley and Snodgrass, although those are not relevant to

the appeal.

{¶ 9} All parties filed motions for summary judgment, and the trial court denied

all motions except for those of Pixley and Snodgrass. A jury trial began April 30, 2012.

Hubbard subsequently dismissed his claims for fraud, negligent misrepresentation, and

unjust enrichment, against TNT, and its claim for promissory estoppel against Shanks.

{¶ 10} On May 4, 2012, the jury returned verdicts against Hoover on the

fraudulent concealment, fraudulent misrepresentation, and breach of contract, and

against TNT on the breach of contract claim. The jury awarded Hubbard $216,337.75 in

damages. The jury also returned verdicts against Realtec on the claims for breach of

fiduciary duty and negligence but awarded zero damages on those claims.

{¶ 11} After a subsequent hearing on punitive damages and attorney fees against

Hoover, the same jury awarded Hubbard $68,020.11 for punitive damages and

$68,020.11 for attorney fees. On May 18, 2012, the trial court filed a judgment entry

journalizing the jury's verdicts. TNT and Realtec filed motions for judgment

notwithstanding the verdict, which the trial court denied on July 18, 2012. TNT and

Realtec have filed appeals, and Hubbard has filed a cross-appeal.

{¶ 12} TNT asserts the following assignments of error:

I. THE TRIAL COURT ERRED IN DENYING APPELLANTS'
MOTION FOR SUMMARY JUDGMENT, DIRECTED
Pike App. No. 12CA833 5

VERDICT, AND JUDGMENT NOTWITHSTANDING THE
VERDICT.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING MARIE HOOVER PERSONALLY LIABLE.

III. THE TRIAL COURT ERRED IN ALLOWING
APPELLEES' EXPERT WITNESS TO EXPRESS AN
OPINION AS TO THE ULTIMATE ISSUE OF WHETHER
APPELLANTS KNOWINGLY MISREPRESENTED OR
CONCEALED DEFECTS IN THE PROPERTY.

IV. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO
THE JURY.

V. THE JURY'S VERDICT AGAINST APPELLANTS WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 13} Realtec asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED BY DENYING THE
MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
ANGELA SHANKS/REALTEC.

[II.] THE TRIAL COURT ERRED BY DENYING
DEFENDANT ANGELA SHANKS/REALTEC MOTION FOR
DIRECTED VERDICT AND JUDGMENT
NOTWITHSTANDING THE VERDICT.

[III.] THE FINDING BY THE JURY THAT DEFENDANTS
SHANKS AND REALTEC VIOLATED A FIDUCIARY DUTY
AND WERE NEGLIGENT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

{¶ 14} Hubbard asserts the following assignment of error:

The jury's award of zero damages against Shanks and Realtec
was against the manifest weight of the evidence.

{¶ 15} TNT argues in its first assignment of error that the trial court erred when it

denied its motion for summary judgment, motion for directed verdict, and motion of

judgment notwithstanding the verdict. Appellate review of summary judgment motions is

de novo. Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). " 'When
Pike App. No. 12CA833 6

reviewing a trial court's ruling on summary judgment, the court of appeals conducts an

independent review of the record and stands in the shoes of the trial court.' " Abrams v.

Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516 ¶ 11 (10th Dist.), quoting Mergenthal

v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). Civ.R. 56(C) provides that

a trial court must grant summary judgment when the moving party demonstrates that (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 party against whom the motion for summary judgment is

made. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6.

{¶ 16} We employ a de novo standard of review in evaluating a trial court's ruling

on a motion for directed verdict or judgment notwithstanding the verdict. Whitaker v.

Kear, 123 Ohio App.3d 413, 422 (4th Dist.1997); Kanjuka v. MetroHealth Med. Ctr., 151

Ohio App.3d 183, 2002-Ohio-6803 (8th Dist.). Civ.R. 50 sets forth the standard for

granting a motion for a directed verdict and a motion for JNOV:

(A) Motion for directed verdict.

***

(4) When granted on the evidence. When a motion for
directed verdict has been properly made, and the trial court,
after construing the evidence most strongly in favor of the
party against whom the motion is directed, finds that upon
any determinative issue reasonable minds could come to but
one conclusion upon the evidence submitted and that
conclusion is adverse to each party, the court shall sustain the
motion and direct a verdict for the moving party as to that
issue.

***

(B) Motion for judgment notwithstanding the verdict.
Whether or not a motion to direct a verdict has been made or
overruled * * * a party may move to have the verdict and any
Pike App. No. 12CA833 7

judgment entered thereon set aside and to have judgment
entered in accordance with his motion; or if a verdict was not
returned, such party, * * * may move for judgment in
accordance with his motion. A motion for a new trial may be
joined with this motion, or a new trial may be prayed for in
the alternative.

{¶ 17} In Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275 (1976),

the Supreme Court of Ohio held:

The test to be applied by a trial court in ruling on a motion for
judgment notwithstanding the verdict is the same test to be
applied on a motion for a directed verdict. The evidence
adduced at trial and the facts established by admissions in the
pleadings and in the record must be construed most strongly
in favor of the party against whom the motion is made, and,
where there is substantial evidence to support his side of the
case, upon which reasonable minds may reach different
conclusions, the motion must be denied. Neither the weight of
the evidence nor the credibility of the witnesses is for the
court's determination in ruling upon either of the above
motions.

{¶ 18} In the present case, TNT first argues that Hubbard purchased the property

subject to all its attendant flaws and defects because the purchase agreement entered into

between the parties provided that the property was being sold "as is," as well as the

application of the doctrine of caveat emptor. TNT points to the following provisions of the

contract:

9. INSPECTIONS: Inspections regarding the physical material
condition and the use of the Real Estate shall be the
responsibility of the Purchaser. Purchaser has a duty to
conduct a reasonably diligent inspection and inquiry of the
property. Purchaser is relying solely upon their own
examination of the Real Estate, the Residential Property
Disclosure, and inspections herein requested by the Purchaser
or otherwise required for its physical condition and character,
and not upon any representation by any Realtor who shall not
be responsible for any defects in the Real Estate.

***
Pike App. No. 12CA833 8

14. MISCELLANEOUS: Purchaser has examined all property
involved and in making this offer is relying solely upon such
examination with reference to the condition, character and
size of land and improvements and fixtures. THE SUBJECT
PROPERTY IS BEING SOLD "AS IS" WITHOUT ANY
WARRANTIES WHATSOEVER EXCEPT AS EXPRESSLY
SET FORTH HEREIN IN WRITING.

{¶ 19} Generally, the doctrine of caveat emptor bars a real estate purchaser from

seeking recovery from the seller for structural defects. As the court stated in Layman v.

Binns, 35 Ohio St.3d 176 (1988), syllabus: "The doctrine of caveat emptor precludes

recovery in an action by the purchaser for a structural defect in real estate where (1) the

condition complained of is open to observation or discoverable upon reasonable

inspection, (2) the purchaser had the unimpeded opportunity to examine the premises,

and (3) there is no fraud on the part of the vendor." (Emphasis sic.) Thus, the doctrine

will not bar an action for a real estate defect if a buyer demonstrates that: (1) the

complained of condition is latent or is not discoverable upon a reasonable inspection,

(2) the buyer did not have an unimpeded opportunity to examine the premises, and (3)

the seller acted fraudulently. The doctrine of caveat emptor does not preclude a buyer

from recovery for all defects. Rather, the doctrine precludes buyers from recovering for

patent, as opposed to latent, defects. Id. at 177.

{¶ 20} Generally, an "as is" clause in a real estate sales contract relieves the seller of

any duty to disclose that the property was in a defective condition. Kaye v. Buehrle, 8

Ohio App.3d 381 (9th Dist.1983), paragraph one of the syllabus. An "as is" clause bars an

action for "passive nondisclosure" but does not shield the seller from an "active" fraud or

commission (as opposed to a fraud of omission), i.e., a misrepresentation or fraudulent

concealment. Rogers v. Hill, 124 Ohio App.3d 468, 471 (4th Dist.1998). Thus, an "as is"

clause does not protect a seller who positively misrepresents or conceals the complained
Pike App. No. 12CA833 9

of condition. See Eiland v. Coldwell Banker Hunter Realty, 122 Ohio App.3d 446, 457

(8th Dist.1997). "An 'as is' clause cannot be relied on to bar a claim for fraudulent

misrepresentation or fraudulent concealment." Kaye at paragraph two of the syllabus.

Thus, while a seller may not have a duty to disclose a defective condition, the seller may

not take affirmative steps to misrepresent or to conceal the condition.

{¶ 21} As indicated in the purchase agreement, Hubbard accepted the property "as

is." Hubbard claims that "as is" in the present contract did not have the traditional

meaning that he was taking the property in its present condition but, rather, that he was

taking the property subject to the incomplete construction work, which was to stop upon

his purchase of the home. He said there were things wrong with the house that he could

see and was also told about that still needed to be repaired, and he accepted those things.

Notwithstanding, even if the use of "as is" in the agreement was meant to be in the

traditional sense of the term, we find neither the "as is" clause nor the doctrine of caveat

emptor precluded Hubbard's recovery because the evidence supported a finding of fraud.

{¶ 22} TNT's arguments regarding fraudulent concealment and fraudulent

misrepresentation are generally based upon the same underlying assertions. To establish

a cause of action for fraudulent misrepresentation or concealment, a plaintiff must prove:

(1) a representation or, when a duty to disclose exists, concealment of a fact, (2) material

to the transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter

disregard and recklessness as to whether it is true or false that knowledge may be

inferred, (4) with the intent to mislead another into relying upon it, (5) justifiable reliance

upon the representation or concealment, and (6) a resulting injury proximately caused by

the reliance. See Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69 (1986), paragraph

two of the syllabus.
Pike App. No. 12CA833 10

{¶ 23} R.C. 5302.30 charges the director of commerce to prescribe a disclosure

form that sellers of residential real property must provide to purchasers. The form is

"designed to permit the transferor to disclose material matters relating to the physical

condition of the property to be transferred * * * and any material defects in the property

that are within the actual knowledge of the transferor." R.C. 5302.30(D). A duty of good

faith is imposed on the seller, R.C. 5302.30(E)(1), though liability for non-disclosure does

not apply to matters "not within the transferor's actual knowledge." R.C. 5302.30(F)(1).

{¶ 24} A seller's response or non-response to the questions posed by the residential

property disclosure form does not warrant the good condition of the property. Schroeder

v. Henness, 2d Dist. No. 2012 CA 18, 2013-Ohio-2767. Rather, they constitute the owner's

representations concerning his actual knowledge of the condition of the property in

respect to the particulars specified. Id.

{¶ 25} A variance between the owner's representations and the truth and fact of the

matters concerned may be a basis for a claim of fraud, and the seller's duty of good faith

requires him to act with an honest belief or purpose in the responses he provides.

Decaestecker v. Belluardo, 2d Dist. No. 22218, 2008-Ohio-2077, ¶ 45. However, he is not

required to speculate, and is charged only to reveal the existence of conditions within his

actual knowledge. Id.

{¶ 26} If a seller fails to disclose a material fact on a residential property disclosure

form with the intention of misleading the buyer, and the buyer relies on the form, the

seller is liable for any resulting injury. Wallington v. Hageman, 8th Dist. No. 94763,

2010-Ohio-6181, ¶ 18, citing Pedone v. Demarchi, 8th Dist. No. 88667, 2007-Ohio-6809,

¶ 31. In other words, the "as is" clause is inapplicable if the property disclosure form

contains misrepresentations. Wilfong v. Petrone, 9th Dist. No. 26317, 2013-Ohio-2434, ¶
Pike App. No. 12CA833 11

32. When a buyer has had the opportunity to inspect the property, however, "he is

charged with knowledge of the conditions that a reasonable inspection would have

disclosed." Wallington; Pedone at ¶ 33.

{¶ 27} Here, in the residential disclosure form, Hoover indicated that she had no

actual knowledge of any movement, shifting, deterioration, material cracks/settling, or

other material problems with the foundation, basement, floors, or interior/exterior wall –

except she noted that she was repairing the windows on the tower – and she was not

aware of any settling, grading, or erosion problems. However, the Marion contingency

addendum demonstrated that Hoover's statements were false. As explained above, the

Marions made a prior offer to purchase the property but attached a contingency

addendum and exhibit outlining the problems that their qualified home inspector found

as a result of a home inspection. In the exhibit, the Marions indicated that the back turret

had no footer, the doors in the spiral staircase pad had settled and needed repaired, the

southwest corner of the home under the master bedroom was settling, and the garage

floor would need substantial repair due to the settling of the southwest corner. Thus,

Hoover knew the house had settling problems but failed to disclose them on the form.

{¶ 28} Appellant counters that the defects were readily discoverable and

identifiable through a home inspection, noting the rear pad had not been poured, and the

condition of the foundation was open to inspection. However, appellant fails to note the

contrary testimony of Hubbard's witnesses, Wesley Davis and Wayne Custer. Davis, a

residential construction expert, testified that he discovered the lack of a footer beneath the

turret room had been concealed by fresh concrete, and stucco was used to dress up the

concrete pad to cover cracks. Davis also testified that the garage floor had been replaced

with fresh concrete. Importantly, Davis testified that the defects related to the turret room
Pike App. No. 12CA833 12

and garage floor would not have been noticeable with a visual inspection, as concrete had

been poured against the house to conceal the underlying problems with the turret, and

handmade wood shims had been used to stabilize the garage wall, with a skim coat used

to cover the cracks and shims. Custer, a structural engineer and home inspector, similarly

testified that the lack of a pad underneath the turret room, the settling of the garage floor,

and the settling of the southwest corner of the house would not have been discoverable

upon ordinary inspection.

{¶ 29} Appellant also argues that the actual cause of the problems raised by

Hubbard was soil instability, which occurred six months after the sale and following

unusually heavy rain and the draining of the lake for repairs. However, the record is

completely devoid of any evidence that either rain or the draining of the lake were

responsible for any of the settling problems. Appellant presented no evidence to support

such a claim at trial, and Hubbard's expert witness, Custer, testified that he did not

believe that the lake level was the root cause of the settling problems.

{¶ 30} Appellant further contends that Hubbard failed to demonstrate justifiable

reliance. The question of justifiable reliance is one of fact, and the court must inquire into

the relationship between the parties. Crown Property Dev., Inc. v. Omega Oil Co., 113

Ohio App.3d 647, 657 (12th Dist.1996). It must consider the nature of the transaction, the

form and materiality of the representation, the relationship of the parties and their

respective means and knowledge, as well as other circumstances. Farris Disposal, Inc. v.

Leipply's Gasthaus, Inc., 9th Dist. No. 22569, 2005-Ohio-6737, ¶ 18, quoting Radice

Partners Ltd. v. Angerman, 9th Dist. No. 90CA004861 (Jan. 16, 1991).

{¶ 31} In the present case, appellant argues that Hubbard admitted he did not rely

on either the disclosure form or anything else represented by TNT. Appellant points out
Pike App. No. 12CA833 13

that Hubbard is an educated scientist and entrepreneur with lawyers under his employ.

Appellant claims Hubbard relied upon no opinions but his own.

{¶ 32} Hubbard testified that, on the purchase contract he signed, it indicated the

purchaser was relying upon the representations made in the residential property

disclosure form, along with his own examination and inspections. Hubbard testified that

he expected the information that was contained in the property disclosure form to be

truthful, and he accepted that the information contained in the property disclosure form

was truthful. Although Hubbard testified that, albeit with some uncertainty, there was

nothing in the disclosure form that caused him to sign the contract and he did not rely

upon the disclosure form, he went on to explain, "I saw what I saw. Now when I read [the

property disclosure form] uh, there might be something that I miss. I don't know." He

testified that he was comfortable and "accepted" the house as he saw it.

{¶ 33} Hubbard's testimony resonates with the principle that "[r]eliance is justified

if the representation does not appear unreasonable on its face and if, under the

circumstances, there is no apparent reason to doubt the veracity of the representation."

Trepp, LLC v. Lighthouse Commercial Mtge., Inc, 10th Dist. No. 09AP-597, 2010-Ohio-

1820, ¶ 21, citing Lepera v. Fuson, 83 Ohio App.3d 17, 26 (1st Dist.1992). Here, Hoover's

fraudulent representations on the disclosure form regarding the settling problems failed

to prompt Hubbard to further inquire about any problems. Hubbard had no reason to

doubt the veracity of Hoover's representations on the form, and her fraudulent

representations did not dispel any of the conclusions drawn from his visual inspections.

Hubbard walked through the property twice and saw minor hairline cracks in the plaster,

but he deemed those normal. He saw no evidence of settling. He also saw minor cracking

in the turret room. He observed the terrace walls outside and saw no major cracks or
Pike App. No. 12CA833 14

movement of any kind. He testified he noticed no sloped areas of grass. He said he took

the condition of the home at face value. Thus, it is apparent that if Hoover would have

revealed what she learned about the settling problem based upon the Marion contingency

addendum, Hubbard would have had reason to question what he observed regarding the

condition of the house. Although he stated he did not sign the purchase contract based

upon what the disclosure form indicated, his testimony supports that Hoover's revelation

of the conditions listed in the Marion contingency addendum would have certainly drawn

his attention and prompted him to inspect the house further. Hubbard testified that an

inspection "wasn't important then, because I thought it wasn't important then." This

statement supports the view that, if Hoover would have revealed all she knew from the

Marion contingency addendum, Hubbard would have found an inspection to be

important at that time.

{¶ 34} In addition, TNT's additional assertions that Hubbard's agent, Shanks, told

Hubbard about the problems with the cracked garage floor and other defects; Hubbard

knew the house had problems; and Hubbard knew that substantial repairs, including

foundation work, were ongoing, are irrelevant. Hubbard's testimony clearly revealed that

no one, including Shanks, ever informed him of the settling problems outlined in the

Marion contingency addendum. Furthermore, although Hubbard knew the house had

some "problems," Hubbard testified that those were limited to disrepair of the deck and

minor cracks in the walls, turret room, and exterior retaining wall. Shanks's

representations to Hubbard did nothing to assuage the fraudulent representations by

Hoover. For the foregoing reasons, we find the trial court did not err when it denied TNT's

motions for summary judgment, directed verdict, and judgment notwithstanding the

verdict.
Pike App. No. 12CA833 15

{¶ 35} We also note that, although appellants argue briefly that Hubbard failed to

demonstrate negligent misrepresentation, and the jury issued a general verdict in favor of

Hubbard on his negligent misrepresentation claim against Hoover, the jury did not make

any award to Hubbard on that claim. The negligent misrepresentation claim was an

alternative claim to the fraudulent misrepresentation and fraudulent concealment claims.

That these claims were in the alternative is demonstrated by the answers to the jury's

interrogatories, as well as the trial court's comments in its journal entry denying the

motions for judgment notwithstanding the verdict filed by Realtec and TNT.

Furthermore, in its judgment entry, the trial court did not indicate that the jury found in

favor of Hubbard on his negligent misrepresentation claim and did not enter final

judgment against Hoover on this claim. Thus, this argument is moot. For these reasons,

TNT's first assignment of error is overruled.

{¶ 36} TNT argues in its second assignment of error that the trial court erred when

it denied its motion to dismiss Hubbard's claims against Hoover personally. TNT asserts

that Hoover, as a member of TNT, a limited liability corporation, cannot be held

personally responsible for TNT's debts, and Hubbard has never claimed that the

"corporate veil" should be pierced to render her personally liable as a member of a limited

liability company.

{¶ 37} However, Hubbard counters that he has never sought to pierce the

corporate veil; rather, he sought personal liability against Hoover because she engaged in

fraudulent conduct personally, and she was personally liable under the purchase contract

by failing to execute it as a corporate officer.

{¶ 38} "[I]f a corporate officer executes an agreement in a way that indicates

personal liability, then that officer is personally liable regardless of his intention." Spicer
Pike App. No. 12CA833 16

v. James, 21 Ohio App.3d 222, 223 (2d Dist.1985). Whether an officer or agent is

personally liable under the contract depends upon "the form of the promise and the form

of the signature." Id. The typical format to avoid individual liability is "company name,

individual's signature, individual's position." The Big H, Inc. v. Watson, 1st Dist. No. C-

050424, 2006-Ohio-4031, ¶ 7. The signature itself represents a clear indication that the

signator is acting as an agent if: (1) the name of the principal is disclosed, (2) the signature

is preceded by words of agency such as "by" or "per" or "on behalf of," and (3) the

signature is followed by the title which represents the capacity in which the signator is

executing the document, e.g., "Pres." or "V.P." or "Agent." Hursh Builders Supply Co., Inc.

v. Clendenin, 5th Dist. No. 2002CA00166, 2002-Ohio-4671, ¶ 21.

{¶ 39} In the present case, Hoover did not comply with these guidelines in

completing the purchase contract. Hoover signed the purchase contract with only her own

name. "TNT" does not precede her signature, and Hoover failed to note any official

capacity or position in which she was signing the contract after her signature. "[W]here an

agent signs a negotiable instrument by affixing thereto his own signature, without adding

the name of the principal for whom he acts, the agent so signing is himself personally

bound on such instrument." W. Shell Commercial, Inc. v. NWS, L.L.C., 12th Dist. No

CA2006-06-154, 2007-Ohio-460, ¶ 6, quoting Aungst v. Creque, 72 Ohio St. 551, 553

(1905). Under the present circumstances, we find that Hoover incurred personal liability

under the contract. Although the first page of the contract and the counter addendum

references "TNT Holdings Marie Hoover" as the seller, there is no "by" or "per" notation

or a designation of Hoover's title. Moreover, every signature and every set of initials

throughout the entire contract and addenda are executed by Hoover individually.
Pike App. No. 12CA833 17

{¶ 40} Hoover attempts to escape personal liability under the purchase contract by

arguing that, because Shanks was also an agent of Hubbard while acting in a dual-agency

capacity for both the buyer and seller, Shanks's knowledge that Hoover was acting in her

capacity as a member of TNT must be imputed to Hubbard. However, we first note that

nowhere in TNT's motion to dismiss did it raise this agency/imputed knowledge

argument. It is well-settled that a litigant's failure to raise issues for the trial court's

determination in a motion to dismiss waives those issues for purposes of appeal. See Doe

v. First United Methodist Church, 68 Ohio St.3d 531, 541 (1994), fn. 7; Abraham v. Natl.

City Bank Corp., 50 Ohio St.3d 175, 176 (1990), fn. 1.

{¶ 41} Notwithstanding, TNT's argument does not affect our conclusion that

Hoover executed the purchase contract in her individual capacity, albeit inadvertently.

TNT sites no authority for the proposition that Hubbard's imputed knowledge of Hoover's

acting on behalf of TNT vitiates the personal liability incurred by Hoover's execution of

the purchase contract in her individual capacity. As explained above, an officer who

executes an agreement in a way that indicates personal liability is personally liable

regardless of intention. Therefore, whether Hoover intended to act as an officer of TNT

and expressed her intention to do so to Shanks is irrelevant. It is the actual form of the

signature on the contract that is important. For these reasons, we must reject TNT's

argument and overrule its second assignment of error.

{¶ 42} TNT argues in its third assignment of error that the trial court erred when it

allowed Hubbard's expert witness to express an opinion as to the ultimate issue of

whether TNT knowingly misrepresented or concealed defects in the property. A trial court

has broad discretion in the admission or exclusion of evidence. Urbana ex rel. Newlin v.

Downing, 43 Ohio St.3d 109, 113 (1989). So long as a trial court exercises its discretion in
Pike App. No. 12CA833 18

accordance with the rules of procedure and evidence, a reviewing court will not reverse

that judgment absent a clear showing of an abuse of discretion with attendant material

prejudice. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991); State v. Hymore, 9 Ohio

St.2d 122 (1967). Thus, we review a trial court's decision regarding the admission or

exclusion of expert witness testimony under an abuse of discretion standard. Am. Select

Ins. Co. v. Sunnycalb, App. No. CA2005-02-018, 2005-Ohio-6275, ¶ 14, citing Huffman

v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 86 (1985).

{¶ 43} Ultimate issue testimony is not per se inadmissible. Evid.R. 704

("Testimony in the form of an opinion or inference otherwise admissible is not

objectionable solely because it embraces an ultimate issue to be decided by the trier of

fact."). Rather, its admission depends upon how helpful the opinion is to the jury and

whether the issue is one that might be beyond an ordinary juror's understanding.

Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6 (1949), paragraphs one and two of

the syllabus (the existence or nonexistence of an ultimate fact is generally the province of

the jury, but that an expert may express an opinion on the same if the issue is one beyond

the experience, knowledge or comprehension of the jury). A trial court is vested with

substantial discretion in its rulings as to the admissibility of ultimate-issue testimony.

Blanton v. Internal. Minerals & Chem. Corp., 125 Ohio App.3d 22, 29, (1st Dist.1997).

{¶ 44} In the present case, TNT first argues that Hubbard's expert, Custer, should

not have been permitted to offer testimony with regard to whether any of the defendants

intentionally concealed defects in the subject property, had knowingly withheld

information that was known to them concerning the condition of the subject property, or

had otherwise acted fraudulently. Specifically, TNT argues that Custer should not have

been permitted to testify, as he did, that (1) the structural defects in the house were
Pike App. No. 12CA833 19

concealed during construction, (2) the defects were hidden from Hubbard, and (3) the

repairs were completed to hide what was going on around the foundation of the house.

{¶ 45} We begin with the conclusion that Custer's above testimony was admissible

because it was helpful to the jury and beyond an ordinary juror's understanding. Custer

testified that his opinion, as a structural engineer, was that the structural defects in the

house were concealed during construction and were not visible during his first inspection.

Custer said he has done so many inspections that he knew what to look for, but the

average person would not have been able to discern the defects. He said the new garage

concrete floor that was poured in 2007 was already heaving when he inspected the home,

the heaving was getting worse, and the slab did nothing to fix the unstable soil under the

slab. He called the repairs completed around 2007 "spot" repairs. He said that when he

first inspected the home, the red concrete and red parge that was put over "everything"

puzzled him, but he later concluded that they, along with the concrete elements around

the house and turret room, were put there purely to hide the settlement of the foundation

and served no useful structural purpose. He also said that retaining walls around the

house were not designed or installed as retaining walls, they had very little rebar in them,

and a very heavy coat of parge material had been placed on them to try to hide the cracks

in those walls. He said anyone with little experience with construction or engineering

would not have been able to detect the problems. He disagreed with the suggestion by

TNT's attorney that the wood shims could have been in place since the home was built in

1997. He said it was his professional opinion that the shims were recently put there to

temporarily remedy the settling problem in that area. Clearly, Custer's testimony would

have been helpful to the jury, and Custer explained that his experience allowed him to
Pike App. No. 12CA833 20

discover these defects, determine they were superficial, and conclude their sole purpose

was to conceal the problems rather than fix them.

{¶ 46} TNT cites a number of cases to support its contentions, but we find them all

inapposite to the facts in the present case. The cases cited by TNT relate to experts

testifying as to the veracity or credibility of another party. Here, Custard did not testify as

to Hoover's truthfulness on any matter. Custer testified as to whether the defects were

intentionally concealed. Therefore, we find the cited cases unpersuasive.

{¶ 47} TNT also argues that the trial court should not have allowed Hubbard to

introduce Custer's report, which reiterated his testimony regarding Hoover's concealing of

defects. TNT contends the trial court erred when it relied upon R.C. 2317.36, which

provides:

A written report or finding of facts prepared by an expert * * *
and containing the conclusions resulting wholly or partly from
written information furnished by the co-operation of several
persons acting for a common purpose, shall, in so far as the
same is relevant, be admissible when testified to by the
person, or one of the persons, making such report or finding
without calling as witnesses the persons furnishing the
information, and without producing the books or other
writings on which the report or finding is based, if, in the
opinion of the court, no substantial injustice will be done the
opposite party.

{¶ 48} TNT argues that Custer was not utilizing data compiled by other persons

and was merely expressing his own opinion. However, R.C. 2317.36 was, in fact, relevant,

insofar as TNT had argued that Custer's opinions in his report were based upon a soil

report from another company, and nobody from that company ever testified. Custer used

the soil report from the company to formulate his own opinions. Thus, the trial court did

not err when it cited R.C. 2317.36. We find no basis to exclude the report. For these

reasons, TNT's third assignment of error is overruled.
Pike App. No. 12CA833 21

{¶ 49} TNT argues in its fourth assignment of error that the trial court erred in its

instructions to the jury. "When we review a trial court's jury instructions, we must

consider the jury instructions as a whole, rather than viewing an instruction in isolation,

and then determine whether the jury charge probably misled the jury in a matter

materially affecting the complaining party's substantial rights." State v. Ward, 168 Ohio

App.3d 701, 2006-Ohio-4847, ¶ 29 (4th Dist.). Generally, reversal is not warranted "due

to error in the jury instructions unless the error is so prejudicial that it may induce an

erroneous verdict." Id.

{¶ 50} Here, TNT specifically points out three jury instructions that were

erroneous. TNT first argues that the trial court erred by failing to indicate in the jury

instructions that a finding of fraud required Hubbard to show that TNT misrepresented or

concealed material facts about the property with "actual" knowledge of their falsity. TNT

asserts that, in its charge to the jury, the trial court omitted the actual knowledge

requirement. TNT claims that the court essentially made it liable for not knowing about

latent defects in its property.

{¶ 51} The precise basis of TNT's argument is difficult to discern. The jury

instructions for the fraudulent concealment and misrepresentation both provided that

Hubbard was required to prove that Hoover knew or acted with utter disregard or

recklessness for whether her misrepresentation was false or her concealment resulted in a

false representation. As explained above, this is a proper statement of law. See Burr at

paragraph two of the syllabus. Nevertheless, as we have already found, Hoover had actual

knowledge of the falsity of her representations based upon the Marion contingency

addendum and Custer's testimony. Therefore, this argument is without merit.
Pike App. No. 12CA833 22

{¶ 52} TNT also argues that the court gave instructions concerning Hoover's

personal liability for signing documents on behalf of TNT that were not supported by the

evidence because she disclosed her status as a member of TNT, a limited liability

company. However, we have already found that the jury property found Hoover was

personally liable. Therefore, this argument is without merit.

{¶ 53} TNT also argues that the court's instruction on negligent misrepresentation

was not warranted. However, as already explained above, because the trial court did not

enter judgment against Hoover or TNT on Hubbard's negligent misrepresentation claim,

this argument is moot. For all of the foregoing reasons, TNT's fourth assignment of error

is overruled.

{¶ 54} TNT argues in its fifth assignment of error that the jury's verdict was against

the manifest weight of the evidence. However, TNT presents no argument to support its

assignment of error but merely reiterates the manifest weight of the evidence standard.

App.R. 16(A)(7) requires an appellant to include an argument containing her contentions

with respect to each assignment of error. It is not this court's duty to make an argument

for the appellant. In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio-6739, ¶ 18; State v. Nguyen,

4th Dist. No. 12CA14, 2013-Ohio-3170, ¶ 37. Having failed to present any further

argument in support of its argument, and considering our findings on TNT's previous

arguments, we cannot find the jury's verdict was against the manifest weight of the

evidence. Therefore, TNT's fifth assignment of error is overruled.

{¶ 55} Because Realtec argues all of its assignments of together, we will also

address them together. Realtec argues in its first assignment of error that the trial court

erred when it denied its motion for summary judgment. Realtec argues in its second

assignment of error that the trial court erred when it denied its motion for directed verdict
Pike App. No. 12CA833 23

and judgment notwithstanding the verdict. Realtec argues in its third assignment of error

that the trial court's findings that it violated a fiduciary duty and was negligent were

against the manifest weight of the evidence. We initially note that Realtec and Shanks did

not move for directed verdict; thus, this argument is without merit.

{¶ 56} Realtec first argues that the doctrine of caveat emptor and the "as is"

provision in the purchase agreement precludes Hubbard's recovery for his breach of

fiduciary claim. "A 'fiduciary relationship' is one in which special confidence and trust is

reposed in the integrity and fidelity of another and there is a resulting position of

superiority or influence, acquired by virtue of this special trust." Stone v. Davis, 66 Ohio

St.2d 74 (1981), quoting In re Termination of Employment of Pratt, 40 Ohio St.2d 107,

115 (1974). Claims for breach of fiduciary duty require proof of the following elements:

"(1) the existence of a duty arising from a fiduciary relationship; (2) a failure to observe

the duty; and (3) an injury resulting proximately therefrom." Harwood v. Pappas &

Assoc., Inc., 8th Dist. No. 84761, 2005-Ohio-2442, ¶ 26, citing Strock v. Pressnell, 38

Ohio St.3d 207, 216 (1988). Thus, a claim for breach of fiduciary duty is similar to an

ordinary negligence claim, the difference being that the standard of care is higher. Camp

St. Mary's Assn. of W. Ohio Conference of the United Methodist Church, Inc. v. Otterbein

Homes, 176 Ohio App.3d 54, 2008-Ohio-1490, ¶ 19 (3d Dist.)

{¶ 57} In the case before us, a fiduciary duty arose from Shanks's status as a dual

real estate agent for both Hubbard and TNT. Real estate agents owe a fiduciary duty to

their clients. Parahoo v. Mancini, 10th Dist. No. 97APE08-1071 (Apr. 14, 1998). Likewise,

real estate brokers have statutory and common law fiduciary duties of disclosure, good

faith, and loyalty. State Farm Fire & Cas. Co. v. Century 21 Arrow Realty, 8th Dist. No.

87081, 2006-Ohio-3967, ¶ 33, quoting Horning v. Fletcher, 7th Dist. No. 05MA 7, 2005-
Pike App. No. 12CA833 24

Ohio-7078. R.C. 4735.62 sets forth a non-exhaustive list of statutory fiduciary duties

applicable to a real estate agent or broker, which include the following:

(A) Exercising reasonable skill and care in representing the
client and carrying out the responsibilities of the agency
relationship;

***

(D) Performing all duties specified in this chapter in a manner
that is loyal to the interest of the client;

***

(F) Disclosing to the client any material facts of the
transaction of which the licensee is aware or should be aware
in the exercise of reasonable skill and care and that are not
confidential information pursuant to a current or prior agency
or dual agency relationship.

{¶ 58} "Furthermore, the Ohio Supreme Court has held: 'One who acts as an agent

for another becomes a fiduciary with respect to matters within the scope of the agency

relation. An agent owes his principal a duty to disclose all material information which the

agent learns concerning the subject matter of the agency relation and about which the

principal is not apprised. Furthermore, where a principal suffers loss through his agent's

failure to function in accordance with his duty, the agent becomes liable to the principal

for the resulting damages.' (Citations omitted.) Miles v. Perpetual S.&L. Co. (1979), 58

Ohio St.2d 93, 95." State Farm Fire & Cas. Co. v. Century 21 Arrow Realty, 8th Dist. No.

87081, 2006-Ohio-3967, ¶ 34.

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

disclose to both of them all non-confidential information material to the transaction.

Levert-Hill v. Associated Holding Group, LLC, 8th Dist. No. 97938, 2012-Ohio-3819, ¶

38. Because of the affirmative obligations arising from the fiduciary relationship between
Pike App. No. 12CA833 25

a real estate agent and his clients, the defense of caveat emptor does not apply when a real

estate agent fails to disclose to his clients facts which were known or should have been

known by him that are material to the transaction. Finomore v. Epstein, 18 Ohio App.3d

88, 90 (8th Dist.1984); Allison v. Cook, 139 Ohio App.3d 473 (12th Dist.2000) (caveat

emptor is not a defense to a claim that an agent defrauded a client). Also, when a fiduciary

relationship exists, as between a realty agent and a client, the clients are entitled to rely

upon the representations of the realty agent. Foust v. Valleybrook Realty Co., 4 Ohio

App.3d 164 (6th Dist.1981). Furthermore, due to the fiduciary relationship between the

buyer and his or her agent, the property being sold "as is" does not preclude the buyer's

cause of action against his or her agent. Gordon v. Skopos, 11th Dist. No. 2004-T-0111,

2005-Ohio-4900, ¶ 20, citing Allison at 487.

{¶ 60} In the present case, it is uncontested that Shanks was operating as a dual

real estate agent for both Hubbard and TNT. Shanks testified that she prepared the

Marion contingency addendum herself. Acting as a dual agent for the Marion transaction,

she personally wrote on the Marion contingency addendum that the Marions had

discovered several issues and concerns as the result of a home inspection by a qualified

home inspector. Shanks wrote on the contingency addendum that the Marions had

estimated repairs to the foundation and structure could exceed $30,000, and she outlined

in the inspection addendum the structural and foundation issues already outlined above.

However, Shanks testified that she did not really believe the Marions and thought they

were using the contingency addendum as a negotiating tool. She said the Marions did not

show her the typical binder completed by a home inspector, and she questioned them

about it. The Marions also never told her the name of the inspector, and the Marions were

only gone for about two hours before returning the house key to her and telling her the
Pike App. No. 12CA833 26

inspection was done, while a typical inspection takes two to four hours. She said the

Marions had originally written their concerns on a little piece of paper, and she merely

made a cleaner copy for the contingency addendum. She also said that it was her own idea

that the turret room might not have a footer, after the Marions told her that the windows

had a lot of condensation. She testified that she did tell Hubbard that the turret room had

"an issue." She admitted she did not tell him that there was no footer because that was not

her area of expertise. She also said she wrote "no footer" on the inspection addendum as a

discussion point, not as a fact. She said that the fact that the doors in the spiral staircase

had settled, which she wrote in the inspection addendum, did not suggest to her that there

was no footer. She said she wrote that the southwest corner under the master bedroom

was settling merely because the Marions told her to write it down. She testified that the

garage floor in the southwest corner was very cracked at the time of the Marion offer, but

it did not occur to her that there might be settling problems. She admitted that she was

aware of all of the problems outlined in the Marion contingency addendum and still

allowed Hubbard to sign the "as-is" purchase contract. She further testified that Hubbard

never asked her for advice.

{¶ 61} After reviewing the testimony and evidence adduced at trial, we agree there

was substantial evidence to support the jury's verdict against Shanks and Realtec. Shanks

was required to disclose to Hubbard any material facts related to the home that she was

aware of. She was clearly aware of the Marion contingency addendum. Her defense that

she did not know whether the concerns in the Marion contingency addendum were "facts"

is unavailing. Even if she had no additional support for the issues raised in the

contingency addendum, which we are not convinced is the proper standard, and was not

sure whether the Marions actually used a qualified home inspector, that the Marions
Pike App. No. 12CA833 27

raised all of these serious concerns is a material fact itself that Shanks had a duty to

disclose to future purchasers. Shanks knew the Marions had raised numerous structural

and foundation concerns and knew that Hoover was taking actions as a result of these

concerns, and she should have told Hubbard that a prior purchaser had levied critical

concerns regarding the structural and foundational integrity of the home, regardless of

whether those charges stemmed from a qualified home inspector or other person. The

vague information she did pass on to Hubbard, which basically amounted to telling him

that the house needed repairs and he should have it inspected, does not fulfill her

fiduciary duty to disclose all material facts. Furthermore, Shanks's defense that Hubbard

was a sophisticated, intelligent buyer who never sought her advice is irrelevant to her

fiduciary duty to disclose all material facts. Because of Shanks's fiduciary relationship and

her failure to disclose material facts known by her, neither the doctrine of caveat emptor

nor the "as-is" provision in the contract relieved her of liability. For these reasons, we find

the trial court did not err in ruling on Realtec's motions for summary judgment and

judgment notwithstanding the verdict, and the judgment was not against the manifest

weight of the evidence with regard to both breach of fiduciary duty and negligence.

Realtec's first, second, and third assignments of error are overruled.

{¶ 62} Hubbard asserts in his sole assignment of error that the jury's award of zero

damages against Shanks and Realtec was against the manifest weight of the evidence.

When it is alleged that a judgment is against the manifest weight of the evidence, an

appellate court conducts the same manifest weight analysis in both criminal and civil

cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17-20. When an

appellant challenges a trial court's judgment in a civil action as being against the manifest

weight of the evidence, the function of the appellate court is limited to an examination of
Pike App. No. 12CA833 28

the record to determine if there is any competent, credible evidence to support the

underlying judgment. Yurkowski v. Univ. of Cincinnati, 10th Dist. No. 11AP-974, 2013-

Ohio-242, ¶ 41, citing Lee v. Mendel, 10th Dist. No. 98AP-1404 (Aug. 24, 1999).

Judgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed by a reviewing court as being against the

manifest weight of the evidence. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80

(1984).

{¶ 63} The decision of a trial court as to a determination of damages is not to be

disturbed absent an abuse of discretion. Roberts v. United States Fid. & Guar. Co., 75

Ohio St.3d 630, 634 (1996). The result must be so palpably and grossly violative of fact or

logic that it evidences not the exercise of will but the perversity of will, not the exercise of

judgment but the defiance of judgment, not the exercise of reason but instead passion or

bias. Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256-57 (1996). In order to set

aside a damage award as inadequate and against the manifest weight of the evidence, a

reviewing court must determine that the verdict is so gross as to shock the sense of justice

and fairness, cannot be reconciled with the undisputed evidence in the case, or is the

result of an apparent failure by the jury to include all the items of damage making up the

plaintiff's claim. (Emphasis deleted.) Bailey v. Allberry, 88 Ohio App.3d 432, 435 (2d

Dist.1993).

{¶ 64} In the present case, Hubbard claims that, given that the jury found Shanks

and Realtec breached their fiduciary duty and were negligent in failing to disclose the

same defects the jury found Hoover and TNT failed to disclose, and the jury found Hoover

and TNT liable for $216,337.75 in damages for failing to disclose the same defects, the

jury should also have found that Shanks and Realtec were liable for those damages.
Pike App. No. 12CA833 29

Hubbard points out that it was the defects in the Marion contingency addendum that

Hoover fraudulently concealed and misrepresented, and it was the same defects in the

Marion contingency addendum that Shanks and Realtec knew about and had a fiduciary

duty to disclose. Hubbard also points out that the only evidence in the record regarding

damages was from his expert who testified it would cost $216,337.75 to repair those

defects. Hubbard argues that Shanks and Realtec are equally as responsible for that

amount as Hoover and TNT.

{¶ 65} Realtec counters that at no time did Hubbard seek joint and several liability.

Realtec points out that they were found liable for breach of fiduciary duty and negligence,

while Hoover and TNT were found liable for fraud and breach of contract; thus, the

parties were not joint tortfeasors because there was no common neglect of duty. Realtec

also asserts that separate damage awards from Hoover and TNT and also Realtec and

Shanks would allow Hubbard to receive a windfall.

{¶ 66} Hubbard contends that his appeal has nothing to do with joint and several

liability, and he does not seek to hold Shanks and Realtec jointly and severally liable based

on the actions of Hoover and TNT. Instead, Hubbard maintains, he seeks to hold Shanks

and Realtec liable for their own conduct. Hubbard also responds that he is not seeking a

windfall or double recovery, and he is only entitled to recover once for the damages

incurred.

{¶ 67} We find that the portion of the verdict awarding no damages was

inconsistent with the finding of liability for breach of fiduciary duty and negligence, and

against the manifest weight of the evidence. The jury concluded that Shanks and Realtec

were negligent and breached their fiduciary duty to Hubbard, and Hubbard presented

uncontested evidence that he incurred damages as a result. Shanks and Realtec fail to set
Pike App. No. 12CA833 30

forth any theory as to how the jury could have found that they were not responsible for

any damages incurred by Hubbard despite their liability. We concur with the trial court's

sentiment in denying the motion for judgment notwithstanding the verdict filed by

Shanks and Realtec, that it was "frankly * * * at a loss as [to] why the jury awarded no

damages against [Shanks]" given that the entire situation may have been avoided had

Shanks disclosed the information from the Marion contingency addendum. The matter

must be remanded for a new trial on damages. See Meyer v. Chieffo, 180 Ohio App.3d 78,

2008-Ohio-6603 ¶ 26 (10th Dist.) (remanding the matter for a new trial as to damages

when the portion of the verdict awarding no damages was inconsistent with the finding of

liability for breach of contract and against the manifest weight of the evidence). For these

reasons, we sustain Hubbard's assignment of error.

{¶ 68} Accordingly, we overrule Hoover's and TNT's assignments of error, overrule

Shanks's and Realtec's assignments of error, sustain Hubbard's assignment of error. The

judgment of the Pike County Court of Common Pleas is affirmed in part and reversed in

part, and this matter is remanded to that court for a new trial as to damages relating to

the jury's finding of liability against Shanks and Realtec.

Judgment affirmed in part and reversed in part;
cause remanded with instructions.

SADLER, P.J., and KLATT, J., concur.
Pike App. No. 12CA833 31

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Costs shall be split equally.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pike
County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this
entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

* SADLER, P.J., and KLATT, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________
Susan D. Brown, Judge *

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.

* Susan D. Brown, William A. Klatt and Lisa L. Sadler, from the Tenth Appellate
District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate
District.