I again respectfully dissent from the majority opinion in reference to the first assignment regarding the liability of Society Bank. One, I find Umbaugh Pole Bldg. Co. v. Scott (1979), 58 Ohio St.2d 282, 12 O.O.3d 279, 390 N.E.2d 320, to be right on point. The trial judge was correct in finding that, as a matter of law, there were no facts put forth in the opening statement which created a "specific duty" and, thus, transformed the contemplated debtor/creditor relationship between the bank and Lippy into a fiduciary relationship.
As is pointed out in Umbaugh, the mere "rendering of advice by the creditor to the debtors does not transform the business relationship into a fiduciary relationship." Id. at 287, 12 O.O.3d at 282, 390 N.E.2d at 323. I note, also, that just as inUmbaugh, there was no property or interest of the appellant entrusted to the bank; there was no continuing relationship with the bank contingent upon following this advice; there was nothing to indicate that this was anything but an arm's-length transaction being contemplated and negotiated between an experienced business person and the bank. The sole basis for the claim was the bank's good-faith suggestion of a candidate to perform the environmental site assessment.
As was more recently expressed by the First District Court of Appeals,1 there was "nothing in the circumstances as disclosed by the record that changed the relationship between the plaintiffs and Wilson from the standard one between mortgagor and servicing agent * * * into a fiduciary relationship. Certainly there was no mutual understanding that plaintiffs reposed a special confidence in Wilson or Northwestern, and we find no circumstances that would impose fiduciary duties as a matter of law." *Page 50
The majority relies heavily on Haddon View as being supportive of the theory that a special duty existed on Society's part. However, the facts in Haddon View are that the plaintiffs there were limited partners in a partnership which was already a client of the accounting firm. The issue of plaintiffs' standing in Haddon View was answered affirmatively even though there was no direct privity of contract between the accounting firm and the individual limited partners; the court found that it was reasonably foreseeable that the limited partners would rely upon the accounting work done for the partnership itself.
In the instant case, the plaintiffs were, at best,prospective clients and no contract had been entered into by the bank with anyone relative to the sale. Further, the professional advice given in Haddon View was directly related to the business of the defendant, i.e., accounting, while here, the advice was not about banking or financing, but rather about an entirely collateral matter — who could conduct an environmental site assessment? Haddon View was essentially a professional malpractice case, the instant case is not.
It is also arguable that even if a special duty and a subsequent fiduciary relationship could somehow be contrived, the mere offering of bad advice by the bank on a matter collateral to the loan approval would not rise to the level of negligence. Taking on the role of a fiduciary does not make one a guarantor or insurer unless mandated by statute; instead, the fiduciary is required only to exercise the care and prudence of an ordinary man. See Freeman v. Norwalk Cemetery Assn. (1950),88 Ohio App. 446, 45 O.O. 231, 100 N.E.2d 267, paragraph three of the syllabus.
In a situation where a fiduciary relationship is created by the facts of the relationship rather than by statute, some actof negligence must be established in order to create liability. What negligence has been shown here? The facts are that the bank had previously dealt successfully with UAM. Where is it shown that the bank should have foreseen that UAM would subsequently prove to be incompetent?
The majority's reliance on Stone v. Davis (1981), 66 Ohio St.2d 74, 20 O.O.3d 64, 419 N.E.2d 1094, is also misplaced. There, a residential loan was at issue. I see that as a significant distinction from the instant case where a commercial transaction was contemplated.
Further, the Stone court itself pointed out that "while a bank and its customer may be said to stand at arm's length in negotiating the terms and conditions of a mortgage loan, it is unrealistic to believe that this equality of position carries over into the area of loan processing * * *." (Emphasis added.)Id. at 78-79, 20 O.O.3d at 67, 419 N.E.2d at 1098. *Page 51
In the instant case, appellant and the bank officer were engaged in preliminary negotiations concerning the procurement of a commercial loan. Nothing more was at issue. Even theStone court recognizes an "equality of position" under these circumstances. The bank's recommendation of the use of UAM was not, even by the most liberal reading of the opening statement, a "term" or "condition" much less part of any subsequent "loan processing." Further, it was not even a negotiated issue. Read in context, it was clearly a suggestion, nothing more.
In addition, in Stone, the facts indicated that the federal truth-in-lending regulations involving the "duty of disclosure" created the "special duty" owed to a customer seeking mortgage insurance. No such statutory obligation existed in the instant case.
Nevertheless, there is no need to reach any conclusion as to negligence because there were no indications of record that this was other than an arm's-length commercial debtor-creditor negotiating session; there was no allegation that Lippy could only deal with Society, or that other dealings with Society were contingent upon placing this loan with Society, or that Society required him to deal with UAM as a condition of the deal. Even if Lippy may have thought so, there is nothing of record demonstrating the existence of any mutual understanding with Society which engendered this special trust or confidence, or that it was reasonable of Lippy to read a fiduciary relationship into his prospective dealing with Society. This was at most a classic example of networking, "I know a guy who * * *."
To impose such an interpretation on the facts outlined in appellant's opening statement, in essence, would change the established law regarding the presumed nonfiduciary relationship which currently exists between banks and their prospective and current commercial borrowers. This is particularly so when the advice given does not even reference banking or financial matters.
Therefore, I would find that as a matter of law, there were no facts which would have created a fiduciary relationship out of the prospective debtor-creditor relationship put forth in appellant's opening statement. I would, therefore, affirm the trial court on the first assignment.
1 Warren v. Percy Wilson Mtge. Fin. Corp. (1984), 15 Ohio App.3d 48,51, 15 OBR 76, 79, 472 N.E.2d 364, 367. *Page 52