COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67198 JACK T. MAJI, ET AL. : : JOURNAL ENTRY Plaintiff-Appellees : : AND vs. : : OPINION DON FIREM, d.b.a. DON FIREM : REALTY, ET AL. : : Defendant-Appellants: : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-256175 JUDGMENT: REVERSED AND FINAL JUDGMENT ENTERED FOR APPELLANTS. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees: DOUGLAS R. FOUTS 33790 Bainbridge Road #205 P.O. Box 39414 Solon, Ohio 44139 ROBERT A. BRINDZA BP America Building 200 Public Square 35th Floor Cleveland, Ohio 44114 RONALD S. MARSHEK 1 Corporate Exchange 25825 Science Park Drive D-330 Beachwood, Ohio 44122-7315 For Defendant-Appellants: RUSSELL Z. BARON Ticktin, Baron, Koepper & Co. 1700 Keith Building Cleveland, Ohio 44115 - 3 - O'DONNELL, J.: On November 21, 1991, Walter Tiburski, an agent of Don Firem Realty, listed for sale for $17,900, a vacant lot located in the City of Oakwood Village which was owned by John and Ezio Agresta. On August 24, 1992, Tiburski presented the Agrestas with two offers to purchase the property, one from Edward and Joann Thiel for $17,000, which contained a 27-day financing contingency, and the other from John and Judith Maji, owners of an abutting parcel, for $17,900, which contained a 24-day financing contingency. At the time he presented the offers, Tiburski represented that the Thiels' financing was "pre-approved" through their credit union and that the Majis may refinance their home to obtain the purchase dollars. (Tr. 120) Tiburski also knew that the Agrestas wanted to get their money as rapidly as possible, and he recommended the Thiel offer to them. (Tr. 116,124) The record also reflects that both bidders signed an agency disclosure statement acknowledging, inter alia: *** Under Ohio law, a real estate licensee is considered to be an agent of the owner of real estate unless there is an agreement to the contrary ***. The Agrestas accepted the Thiel offer. Upon learning they were not successful, the Majis asked to have the financing contingency removed from their offer, and have a cash offer presented, but this was not done. (Tr. 23, 50.) The Majis then filed suit against the Agrestas, the Thiels, - 4 - Don Firem Realty and Walter Tiburski, alleging fraud, misrepresentation, breach of fiduciary duties and seeking specific performance, rescission of the sales agreement, compensatory and punitive damages and attorney fees. The trial court dismissed the Thiels on December 13, 1993. The court commenced a jury trial on April 7, 1994 and, at the close of the plaintiffs' case, the judge directed a verdict in favor of Ezio Agresta. At the close of all evidence, the judge dismissed all claims for punitive damages and attorney fees and submitted only the fraud case to the jury. A verdict of $17,900 was returned against John Agresta, the seller, Walter Tiburski, the agent, and Don Firem Realty. All plaintiffs and defendants have appealed. The defendants have collectively assigned the following errors: I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS' MOTION FOR DIRECTED VERDICT BOTH AT THE CLOSE OF PLAINTIFFS' CASE AND AT THE CLOSE OF ALL OF THE TESTIMONY. III. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. The plaintiffs have assigned these errors: I. THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLEES TO PRESENT EVIDENCE AS TO THEIR CLAIM OF PUNITIVE DAMAGES AND ATTORNEYS FEES. - 5 - II. THE TRIAL COURT ERRED IN DISMISSING APPELLEES EDWARD AND JOANN THIEL PRIOR TO THE TRIAL AS THEY WERE A PARTY REQUIRED FOR JUST ADJUDICATION UNDER CIVIL RULE 19. I. We begin by collectively addressing all errors assigned by the defendants because each is interrelated and shares a common basis in law with the others. Defendants argue that plaintiffs' failure to present any evidence of fraud in connection with this transaction warranted a directed verdict and that the judgment is against the manifest weight of the evidence. Plaintiffs strongly contend that Tiburski's failure to delete the financing contingency from their offer and his recommendation of the Thiel offer constitutes fraud. The issues then presented for our review are whether the judgment is against the manifest weight of the evidence and whether the court should have directed a verdict in favor of defendants. We begin our analysis of this case by examining the duty of a real estate agent in a proposed transaction. The law describes a real estate agent as a fiduciary who owes his principal a duty to disclose all material information he learns concerning the subject matter of the transaction. See Miles v. Perpetual S. & L. Co. (1979), 58 Ohio St.2d 93. We find from our review of this - 6 - case that the principals, John Agresta and his brother Ezio, do not complain about Tiburski and are apparently satisfied with his efforts for them in this sale. Here, it is the unsuccessful bidders who have sued alleging fraud. Thus, we look to the elements of fraud to determine the issues in this case. In Burr, et al. v. Stark County Bd. of Commrs. (1986), 23 Ohio St.3d 68, the Ohio Supreme Court set forth the following elements of fraud: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which is 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 of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance. Under Ohio law, then, Tiburski had a duty to tell his principals all that he knew about both offers, including financing information. He had no duty whatsoever to the Majis, and he was not obligated to present their new or modified offer to the Agrestas after the Thiel offer had been accepted. We therefore conclude that Tiburski did not falsely make a material misrepresentation in an effort to mislead his principals, and - 7 - thence he did not commit any fraud. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, the court held: 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. v. Cleveland (1984), 10 Ohio St.3d 77, 80. However, a finding is against the manifest weight of the evidence if it is "so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice. ***" Sambunjak v. Bd. of Review (1984), 14 Ohio App.3d 432, 433, quoting Royer v. Bd. of Edn. (1977), 51 Ohio App.2d 17, 20. The reasoning in the case law tells us that since Tiburski did not misrepresent the Maji offer, and since his duty is to the Agresta brothers and they have not filed suit, an unsuccessful bidder of realty cannot prove fraud or misrepresentation where the written offer was fairly presented by the agent but not recommended to the vendor, and the agent's failure to present a modification after the vendor had accepted an offer is not actionable. On these bases, we find the verdict is against the manifest weight of the evidence. We next examine whether the trial court should have favorably entertained the motion for directed verdict. Civ. R. 50 establishes the test to be used when considering whether or not to direct a verdict. It states in part: - 8 - When *** 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 *** and the conclusion is adverse to such party, the court shall sustain the motion and direct a verdict ***. On the basis of the foregoing analysis, we find that reasonable minds could reach but one conclusion in this case, that no fraud was committed. The trial court erred by not granting a directed verdict in favor of all defendants at the close of the plaintiffs' case. These assignments of error are well taken. II. Our disposition of the defendants' assignments of error renders the plaintiffs' assignments moot. Pursuant to App.R. 12(A)(1)(c), we are not to decide them. Accordingly, the judgment of the trial court is reversed and final judgment is entered for defendants. - 9 - This cause is reversed and final judgment is entered for defendants. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said 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. SARA J. HARPER, P.J., and JOSEPH J. NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .