I respectfully dissent from the majority opinion in reference to the first assignment regarding the liability of Society Bank. First, I find Umbaugh Pole Bldg. Co. v. Scott (1979), 58 Ohio St.2d 282, 12 O.O.3d 279, 390 N.E.2d 320, 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" *Page 43 and thus transformed the contemplated debtor-creditor relationship between Lippy and the bank 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 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 there 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 good faith giving of the bank's advice relative to 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."
It is also arguable that even if a special duty and a subsequent fiduciary relationship could somehow be contrived, the offering of bad advice by the bank on a matter collateral to the loan appraisal would not be more than poor judgment, as compared to negligence. Taking on the role of a fiduciary does not make one a guarantor or insurer unless mandated by statute; instead, the fiduciary is only required to exercise the care and prudence of an ordinary man. See Freeman v. Norwalk CemeteryAssn. (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 act of negligence must be established in order to create liability. At worst, only bad judgment is suggested by appellant's opening statement.
Appellant relies heavily on Stone v. Davis (1981), 66 Ohio St.2d 74, 20 O.O.3d 64, 419 N.E.2d 1094. There, a residential loan was at issue. I see that as a significant distinction from the instant case.
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 *Page 44 into the area of loan processing * * *." (Emphasis added.)Id. at 78-79, 20 O.O.3d at 67, 419 N.E.2d at 1098.
Appellant and the bank officer were engaged in preliminary negotiations concerning the procurement of the loan, nothing more was at issue in the case before us. The use of UAM was not, even by the most liberal reading of the opening statement, a "term" or "condition" much less part of the "loan processing."
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 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 to show anymutual understanding with Society engendering 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.
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 as well as the second.
1 Warren v. Percy Wilson Mtge. Finance Corp. (1984),15 Ohio App.3d 48, 51, 15 OBR 76, 79, 472 N.E.2d 364, 367. *Page 45