Caruso v. National City Mortgage Co.

931 N.E.2d 1167, 187 Ohio App. 3d 329
CourtOhio Court of Appeals
DecidedApril 30, 2010
DocketNo. C-090433
StatusPublished
Cited by9 cases

This text of 931 N.E.2d 1167 (Caruso v. National City Mortgage Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caruso v. National City Mortgage Co., 931 N.E.2d 1167, 187 Ohio App. 3d 329 (Ohio Ct. App. 2010).

Opinion

Dinkelacker, Judge.

I. Facts and Procedure

{¶ 1} Plaintiff-appellant, William A. Caruso, filed suit against defendantsappellees, National City Mortgage Company, Elizabeth Louis Hopf, and Empire Real Estate Solutions, relating to a failed real estate investment. The trial court granted summary judgment in favor of appellees on all of Caruso’s claims. He has filed a timely appeal from that judgment.

[331]*331{¶ 2} The record shows that Caruso was a licensed real estate agent and a savvy real estate investor. His investment strategy, acquired from years of working in the real estate business, involved purchasing the first home built in a newly developed subdivision. Generally, no negotiation occurred, and he would purchase the home at a “take it or leave it” price set by the developer. He would then lease the home back to the developer to use as a model home. After the developer no longer needed the model home, Caruso would sell it at a profit.

{¶ 3} Caruso had purchased several homes from Ryan Homes. He heard from a former associate that a home was available in Ross Estates, one of Ryan Homes’ new developments, and he acted quickly to buy it. He arranged for a purchase agreement within a few days, and he did not look at the property beforehand. An employee of Ryan Homes told him the price, which he knew from experience was not negotiable, and the monthly rental that Ryan Homes would pay him for leasing the model home. Based on his experience, he felt that the price was fair, and he calculated that his expected monthly rental income would exceed his monthly mortgage obligations.

{¶ 4} Caruso expected that this property would continue to provide income for several years based upon his estimation that Ryan Homes would build between 50 and 200 homes in the Ross Estates over a span of approximately four to six years. He also assumed that Ryan Homes would build similar homes and sell them at similar prices.

{¶ 5} In January 2006, Caruso executed a contract to purchase the home, located at 2305 Ross Estates Drive, for $441,435. Ryan Homes also agreed to lease back the property for one year. Both agreements were similar to documents Caruso had previously signed when buying other Ryan homes.

{¶ 6} Caruso applied for financing from National City. He worked with loan officer Damon Grunenburg, with whom he had previously dealt. National City ordered an appraisal of the property from Empire. Hopf, a licensed residential appraiser who worked for Empire, performed the appraisal. She concluded that the property had a value of $442,000. She completed her report in May 2006 and sent it to National City. National City approved Caruso’s loan application, and he closed on the property in July 2006.

{¶ 7} Caruso never saw the appraisal, which he now contends was improperly done. He had no contact with Empire or Hopf. According to Caruso, Grunenburg informed him on more than one occasion that the appraisal was good and that Caruso could obtain financing, even though Grunenburg had not reviewed the appraisal.

{¶ 8} Approximately six months after Caruso closed on the property, Ryan Homes notified him that it was pulling out of the Ross Estates, as well as several [332]*332other communities, due to declining market conditions and slower-than-expected sales. It also informed him that it would not renew its lease agreement on the property.

(¶ 9} In an effort to cut his losses, Caruso began examining comparable sales in the Ross Estates. He learned that Ryan Homes had been building and selling less expensive homes. He also called National City and obtained a copy of the appraisal Hopf had completed. He had his own appraisal done, which valued the house at significantly less than Hopf s appraisal. He ultimately sold the property for $326,400, after reducing his asking price by more than $100,000.

{¶ 10} Caruso filed suit, alleging in his complaint that Hopf s appraisal was performed negligently and was not completed in compliance with the appropriate professional guidelines. He set forth a cause of action for negligent misrepresentation. He also claimed that he was a third-party beneficiary of the contract between Empire and National City. National City, Empire, and Hopf filed motions for summary judgment on all of Caruso’s claims, which the trial court granted.

{¶ 11} Caruso now presents two assignments of error for review. In his first assignment of error, he contends that the trial court erred in granting summary judgment in favor of National City. In his second assignment of error, he contends that the trial court erred in granting summary judgment in favor of Empire and Hopf. In both assignments of error, he argues, in part, that he presented evidence to create material issues of fact on the elements of the tort of negligent misrepresentation. We find no merit in this argument.

II. Negligent Misrepresentation

{¶ 12} Any contract between Caruso and National City related to the terms of the loan. Caruso presented no evidence showing that a contractual relationship relating to the appraisal existed between him and National City or Empire and Hopf. The only evidence he offered consisted of citations to National City’s general guidelines for the preparation of appraisals by appraisal firms. Nothing in those guidelines created a contractual relationship or created privity of contract between him and National City related to the appraisal or between him and Empire and Hopf.1 Therefore, to recover damages, he had to rely only on the tort of negligent misrepresentation.

[333]*333{¶ 13} Typically, a plaintiff must have a contractual relationship with a defendant to recover damages for economic loss.2 Under the economic-loss rule, a plaintiff who has suffered only economic loss due to another’s negligence cannot recover damages.3

{¶ 14} One exception to this rule is set forth in Restatement of the Law 2d, Torts (1965), Section 552. It states, “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is 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.”4

{¶ 15} Liability is limited to the loss suffered (1) “by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply” and (2) “through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.”5

{¶ 16} Ohio law on this particular tort is far from clear. The Ohio Supreme Court cited Section 552 of the Restatement in Haddon View Invest. Co. v. Coopers & Lybrand,6 in which it adopted a similar rule for accountants. But, as this court has observed, the Supreme Court did not “specifically adopt the Restatement in all contexts.”7

{¶ 17} This court has also stated that “[t]he Ohio Supreme Court has not addressed whether a strictly tort-based liability would apply to appraisers.

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Cite This Page — Counsel Stack

Bluebook (online)
931 N.E.2d 1167, 187 Ohio App. 3d 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caruso-v-national-city-mortgage-co-ohioctapp-2010.