[Cite as Town v. Sidoti, 2026-Ohio-963.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
David H. Town Court of Appeals No. E-25-041
Appellant Trial Court No. CVI 2400430 v.
Tarina Sidoti DECISION AND JUDGMENT
Appellee Decided: March 20, 2026
*****
Tarina Sidoti, for appellee.
Daniel L. McGookey, for appellant
***** MAYLE, J.
{¶ 1} In this negligent misrepresentation action, appellant, David Town, appeals
the August 6, 2025 judgment of the Sandusky Municipal Court overruling his objections
to the April 24, 2025 magistrate’s decision that granted judgment in favor of appellee,
Tarina Sidoti. For the following reasons, we affirm. I. Background and Facts
{¶ 2} This case arose from Town’s purchase of a condominium on Westwind
Drive in Sandusky, Ohio. According to his complaint, when Town purchased his home,
one of the “primary features” of the home in the “MLS listing” was the home having
“heated floors in the Master Suite.” Based on that representation, Town expected heated
floors throughout the master suite, i.e., in the entire master bedroom and master bathroom
area. However, upon moving in, he discovered that the floors were heated only in the
bathroom, not in the whole suite, as advertised in the listing. A flooring contractor told
him that it would cost $4,130 to install heated floors in the master bedroom. His real
estate agent contacted the listing agent—Sidoti—who “said that she made a mistake, but
that she wouldn’t pay for [his] contractor to install the heated floors.”
{¶ 3} Sidoti, who has appeared pro se throughout these proceedings, filed a
response to Town’s complaint in which she “den[ied] all allegations of wrongdoing,”
requested that the trial court dismiss the case, and provided several reasons why she
believed that she was not liable to Town. Specifically, she claimed that the comment in
the MLS listing that “‘[t]he master suite will WOW you with its top-of-the-line finishes
including heated floors’” was a marketing statement meant to describe the floors of the
master bathroom, which was part of the master suite. Additionally, both the MLS listing
and the Zillow listing for the home included language indicating that the information was
not warranted. Next, because Town bought the home as-is and waived inspections, he
bought it without guarantee of any specific features or finishes, and there was no mention
of heated floors in the parties’ purchase contract. Third, Town did not ask about the
2. extent or location of the heated floors during the purchase process or tell anyone that this
was a deciding factor in his purchase decision. Town was also represented by his own
agent, who had a fiduciary duty to him and had access to the property to verify the
features. Fourth, Sidoti denied any intent to deceive or misrepresent the features of the
property. Finally, Sidoti pointed out that she was not a party to the purchase contract,
which was only between Town and the seller, and any dispute should be settled between
the parties to the contract.
{¶ 4} Town’s complaint was heard by a magistrate. At the trial, Town called real
estate agent, Sally Routh, his niece, Jennifer Jackway, and Sidoti, and testified in his own
behalf. Sidoti testified in her own behalf.
{¶ 5} Town first called Sidoti on cross-examination. Sidoti testified that she listed
a property on Westwind Drive for sale as the real estate agent. Before listing the
property, she met with the seller, toured the property, took notes, came up with a price,
entered the information into the MLS system, “double-checked everything,” and sent the
listing to the seller to proof. From her examination of the property, she “100 percent
knew the heated floors were in the en suite, which is bathroom to [her]. [She] knew the
floors were not heated in the bedroom or around the bed.”
{¶ 6} The marketing paragraph that Sidoti wrote for the property included the
sentence, “[t]he master suite will WOW you with its top-of-the-line finishes including
heated floors.” This statement was included in the MLS listing for the property. Sidoti
agreed with Town’s counsel that “boil[ing] that sentence down, you’re making
representation in the MLS listing that there are heated floors in the master suite[.]” The
3. bottom of the MLS listing included the statement, “[a]ll data subject to errors, omissions
or revisions and is NOT warranted.”
{¶ 7} Following the sale, Sidoti had a text conversation with Routh, Town’s real
estate agent, in which they had the following exchange:
[Routh:] Good Moring Tarina. I’m afraid there is an issue [with the condo]. The marketing remarks said there are heated floors in the master bedroom. The floor is not heated. Buyer is upset. He is getting an estimate on replacing the flooring. He is asking for reimbursement. . . .
[Sidoti:] I’ll have to look back at my notes, but I am almost positive they were heated floors. However, what’s on the MLS is not warranted…you know that.
...
[Sidoti:] Oh you mean bedroom? No the floors are only heated in bathroom.
[Sidoti:] Certainly was not intended to mislead.
Says “en-suite”….
A home inspector would have pointed that out.
Ugg sorry for any confusion
(Second and final ellipses in original.)
{¶ 8} Sidoti denied ever admitting that she had made a mistake in the listing and
said, “I don’t think I did anything wrong.” She claimed that she would “never mislead or
fraudulently misrepresent a property.”
{¶ 9} Counsel had Sidoti read R.C. 4735.18(A)(21), which provides that a real
estate agent can be disciplined for “‘[h]aving published advertising whether printed,
radio, display or any other nature, which was misleading or inaccurate in any material 4. particulars or in any way having misrepresented any properties turned, policies or
services of the business conducted.’” She agreed that it was against the rule for a realtor
to negligently misrepresent facts in an MLS listing. However, Sidoti said that “[n]ot one
part of [her]” thought that the MLS listing for the condo was misleading.
Routh testified that she had been a real estate agent since 1985 and a real estate
broker since 2000. She also taught pre-licensure classes for years.
{¶ 10} Regarding the MLS listing for the condo, Routh explained that “when it
says suite, we refer to the bathroom and the bedroom that it’s connected to.” “Suite” did
not mean just one room.
{¶ 11} Routh was Town’s real estate agent when he purchased the condo and she
showed him the condo. Town went through the condo twice. Routh did not realize that
heated floors in the bedroom were important to Town until after closing, when Jackway
told her that Town had learned that the bedroom floors were not heated. The issue had
not come up before that.
{¶ 12} After learning about the problem, Routh called Sidoti. According to Routh,
“I said, ‘Tarina, we have an issue.’ I said, ‘The buyer thought the master bedroom floors
were heated.’ And it says that in the—and she said, ‘Well, let me look at my records.’
And then you pulled up your records. And then you then you waited, paused and then
you said, ‘Well, haven’t you ever made a mistake?’”
{¶ 13} Routh did not remember their conversation happening in text messages, but
she did not see why they would have had the same conversation twice. Regardless, she
5. recalled Sidoti commenting, “‘Well, haven’t you ever made a mistake?’” during a phone
conversation.
{¶ 14} Routh discussed a portion of a white paper produced by the Ohio
Association of Realtors regarding misleading statements in real estate advertising, which
explained that “[t]he licensing laws require that all real estate advertisements be truthful
and free from any misleading statements . . . . Even if the misrepresentations are made
inadvertently, they may trigger liability . . . . R.C. § 4735.18(A) (21) states that any
broker or agent who publishes a false or misleading advertisement is subject to discipline
by the Ohio Real Estate Commission.”
{¶ 15} Routh believed that the prohibition in R.C. 4735.18(A)(21) applied to this
situation because, “I just think it was misrepresented, but I don’t think it was on purpose.
I think it was just a mistake. . . . But in this situation, it was something in the remarks
that were very important to the buyer.” The mistake she was referring to was the
bedroom of the master suite not having heated floors.
{¶ 16} Based on her education and experience as a realtor, Routh “believe[d] that
[Sidoti] made a mistake that was important to the buyer” and that she unknowingly put
out an MLS listing that was false or misleading.
{¶ 17} On cross-examination, Routh testified that she was not aware before
closing of a problem with Town’s feet that required heated floors.
{¶ 18} Routh gave Town an MLS listing sheet when she showed him the property
that would have had the warranty disclaimer language on it. She did not tell Town that
the information in the MLS listing was not warranted and that he needed to do his own
6. due diligence. Although Town wanted an inspection, Sidoti told them that the seller had
an inspection that was only a year old, and Town agreed to accept that. The inspection
did not mention any heated floors.
{¶ 19} Town was in the house with Routh twice before signing the purchase
contract and the heated floors did not come up.
{¶ 20} Jackway testified that she is Town’s niece. He moved to the area because
she lives here. When he was preparing to move here, they called Routh, who found three
real estate listings to show him. Jackway was aware of the importance of heated floors
because Town has neuropathy in his feet.
{¶ 21} They looked at the condo he purchased once before he made an offer.
Routh advised Town to make a full-price offer even though the condo had been on the
market for a while “because it had everything he needed and wanted.” The heated
bedroom floors were very important to Town; in fact, “[a]ll he talked about were those
floors.”
{¶ 22} When Jackway heard that the “master suite” had heated floors, she thought
that “it’s the bedroom and the en suite bathroom that would have the heat in the floors.
And if you will look at the MLS listing, it says heated floors with an ‘S’ at the end of it
which indicates, you know, more than one. And it just—by virtue of the word ‘suite,’ it’s
clearly a bathroom and a bedroom combination. That’s the definition of suite.” She
thought that heated floors in the master suite meant that Town would not have to worry
about the laminate floors in the bedroom being cold, despite not having carpet.
7. {¶ 23} She and Town discovered that the bedroom did not have heated floors after
Town purchased the property. Town allowed the seller to stay in the condo for a couple
of weeks, and after she moved out, he and Jackway went to the condo. When Jackway
turned on the thermostat that should have controlled the heated floors in both the
bedroom and the bathroom, the bedroom floors did not heat up. There was no way to tell
from looking at the thermostat which areas it controlled.
{¶ 24} Immediately after discovering the issue with the floors, Jackway called
Routh, who said that she would call Sidoti. Shortly after, Routh called back to relay her
conversation with Sidoti.
{¶ 25} On cross, Jackway testified that she did not tell Routh about Town’s health
condition or that he needed heated floors. In fact, heated floors were not mentioned
before closing at all. They brought the issue with the floors to someone’s attention as
soon as they noticed it. Although Jackway spoke to both Sidoti and the owner, she never
asked either about the heated floors.
{¶ 26} Town testified that he moved to Sandusky to be close to Jackway, his niece
and legal guardian. He explained that he has neuropathy, which “is basically a
circulation problem with the legs and the feet and the flow of blood.” Because of that,
heated floors in his master bedroom were important to him. He explained that he has to
“get up multiple times during the night to go to the bathroom and be[ing] able to put [his]
feet down on warm surface, that also helps with the circulation of blood in the legs too,
feet.”
8. {¶ 27} Before viewing the condo, he had read the MLS listing representing that
there were heated floors in the master suite. He explained that heated floors were “a
definite plus” and were “important.” However, “[i]t’s not like [he] wouldn’t have bought
the house maybe if it didn’t have heated floors, but [he] sure wouldn’t have paid full
price for the house.” He would have offered at least $5,000 less for the condo if he had
known about the floors.
{¶ 28} He first learned that the bedroom did not have heated floors “[w]hen [he]
talked to [the seller] and made mention to her how excited [he] was about the heated
floors, and she told [him] that there weren’t any heated floors.” This conversation
occurred when the seller was living in the condo after closing. Town immediately told
Jackway, who contacted Routh.
{¶ 29} On cross-examination, Town explained that the lack of heated floors was
not “deadly” but was a “total inconvenience.” He said, “[i]t’s something that I wish I
had, and something that I had purchased when I purchased the home.” He admitted that
he did not plan to buy only a house with heated floors. He also admitted that he did not
check to see where the thermostat was or how it worked when he was touring the condo
because it was very warm in the house and he assumed that the thermostat operated both
floors because the MLS listing said “‘[w]ow, heated floors.’”
{¶ 30} Regarding an inspection, Town said that the seller could have put heated
floors in after the inspection was done and they would not have been included in the
inspection.
9. {¶ 31} Town got an estimate for installing heated floors in the master bedroom,
which would cost $4,130. He described the lack of heated floors for the nine months he
had lived in the apartment as “an inconvenience in the sense of hitting cold floors . . . .”
{¶ 32} He chose to sue Sidoti personally because he was “going after what was
written on the MLS. And the representation that was made on the MLS is what [he]
bought the home with the representation.”
{¶ 33} The purchase agreement said that the home was being sold as-is. There
was no language about floors in the contract. Town signed a document before closing
removing the general inspection contingency from the purchase contract. He did not
recall seeing that document.
{¶ 34} In her direct testimony, Sidoti pointed out that a real estate purchase is
“buyer beware” and a purchaser is required to do their own due diligence regarding a
property. Additionally, Town had his own representation who had a fiduciary duty to
him.
{¶ 35} Sidoti explained that she meets with a client and views a property before
writing the description that goes on the MLS listing for that property. Once she has
written the marketing paragraph, she sends it to the seller for their review to make sure
she did not miss anything. After that, the listing “goes live” and is available to anyone on
the internet. Information on an MLS listing or third-party real estate sites, like Zillow or
Realtor.com, is not warranted. Although third-party sites pull their information from the
MLS listing, the information they show may not look the same as the MLS listing
10. because “sometimes they pull part of the information, not all of it. [She has] no control
over what they decide to retrieve and what they don’t . . . .”
{¶ 36} No one asked Sidoti about heated floors and no one mentioned heated
floors before closing. If they had, Sidoti, the seller, or both could have addressed the
issue through negotiation. She also claimed that the statement in the MLS was true
because there are heated floors in the master en suite bathroom.
{¶ 37} On cross, Sidoti confirmed that she was claiming that there was no
misstatement in the MLS listing when it says that there are heated floors in the master
suite. She also claimed that she was protected by the disclaimer language on the MLS
listing for any misstatement that might have existed. She explained that “[s]ometimes we
are relying on our clients. So as realtors and brokers, we are protected from that line,
because we can’t be held liable for what our clients say.”
{¶ 38} Following the trial, the magistrate issued a decision finding in Sidoti’s
favor and dismissing Town’s complaint. In his findings of fact, the magistrate noted that
the parties had different interpretations of what it meant to have heated floors in the
master suite of the condo, but he did not determine which interpretation was correct.
{¶ 39} In his conclusions of law, the magistrate found that Town failed to prove
negligent misrepresentation because he could not prove justifiable reliance. Town
admitted that he did not investigate whether the bedroom floors were heated before
closing, he did not inquire about the bedroom floors being heated before closing, and he
never advised anyone (including his own realtor) about his need for heated flooring.
Further, the magistrate found that the tort of negligent misrepresentation does not apply
11. to a consumer transaction like a real estate sale, nor does it apply in the absence of a
fiduciary relationship. Because there was no fiduciary relationship between Town and
Sidoti and the transaction involved was a consumer transaction, negligent
misrepresentation was wholly inapplicable.
{¶ 40} Town filed objections to the magistrate’s decision. First, he argued that the
magistrate erred by finding that he failed to prove justifiable reliance because it ignored
Town’s testimony that “due to a health condition, the listing’s statement that the
condominium came with heated floors in the Master Suite, is what attracted him to the
unit in the first place[.]” Town also testified that he would have offered less for the
condo if he had known that the bedroom floors were unheated, and the MLS listing noted
that the “Master Suite” had heated floors, but only the master bathroom floors were
heated. Second, he argued that the magistrate erred as a matter of law by finding that
Sidoti, as the seller’s realtor, had no duty to him, as the buyer. He claimed that this
finding added an element not required for a finding of negligent representation. Finally,
he argued that the magistrate erred as a matter of law by finding that negligent
misrepresentation does not apply in consumer transactions because that conclusion was
“contrary to mountains of case law” and misconstrued the cases the magistrate relied on.
{¶ 41} The trial court summarily overruled Town’s objections and adopted the
magistrate’s decision. The court dismissed Town’s complaint.
Town now appeals, raising one assignment of error:
THE TRIAL COURT ERRED IN ADOPTING THE DECISION OF THE MAGISTRATE FINDING THAT THE APPELLANT’S COMPLAINT SHOULOD [sic] BE DISMISSED
12. II. Law and Analysis
{¶ 42} In his assignment of error, Town raises three arguments. First, he argues
that the trial court erred by adopting the magistrate’s finding that he failed to prove the
reasonable reliance element of negligent misrepresentation because the magistrate’s
finding was against the manifest weight of the evidence. He contends that the
magistrate’s finding improperly imposed upon him a duty to make further inquiry,
despite the representation not appearing unreasonable on its face and there being no
apparent reason to doubt its veracity. Next, he argues that the trial court erred as a matter
of law by adopting the magistrate’s finding that Sidoti, as the seller’s agent, had no duty
to him, as the buyer of the condo. He claims that privity between the parties is not an
issue in a negligent representation case. Instead, the issue the magistrate should have
considered is whether a third party’s reliance on the information was foreseeable.
Finally, he argues that the trial court erred by adopting the magistrate’s finding that the
tort of negligent misrepresentation does not apply to a real estate purchase transaction.
He contends that the magistrate reached his conclusion by misinterpreting case law, and
numerous cases support a finding that negligent misrepresentation can apply to a real
estate transaction.
{¶ 43} In response, Sidoti argues that (1) Town failed to prove that the remark in
the MLS was materially false or that he suffered any damages as a result of the statement;
(2) the disclaimer on the MLS clearly demonstrates that statements in the MLS are for
marketing purposes only and are not warranted; (3) the parties’ obligations were solely
governed by the sale contract and the comments in the MLS were not incorporated into
13. that contract; (4) Town waived an inspection of the condo and accepted the property “as
is”; and (5) Town was represented by his own real estate agent who had a duty to
investigate any uncertain features of the property. Sidoti also argues that we should
reject Town’s claims because he “is repeating the same argument already rejected twice.
The small claims court considered the evidence and rejected the claim. The appellate
court upheld that ruling. This further appeal raises no new facts and no legal basis for
reversal.”
A. Town has properly appealed his case.
{¶ 44} As a preliminary matter, we address Sidoti’s argument that we should
reject Town’s claims simply because they have already been rejected by the magistrate
and trial court. Under Civ.R. 53(D)(3)(b), a litigant may file objections to a magistrate’s
decisions. If he does so, the court that referred the matter to the magistrate is required to
independently review the matter and rule on the objections. Civ.R. 53(D)(4)(d). Once
the trial court has issued its decision in a case, a litigant can appeal the outcome to the
court of appeals because “every litigant in Ohio is entitled to an appeal as of right by
filing a notice of appeal within the time allowed” by App.R. 4. (Cleaned up.) Moldovan
v. Cuyahoga Cty. Welfare Dept., 25 Ohio St.3d 293, 294 (1986), citing App.R. 3(A).
When a party files a timely notice of appeal, we are constitutionally bound to “review and
affirm, modify, or reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district . . . .” Ohio Constitution, art. IV, § 3(B)(2).
{¶ 45} Here, Town followed the appropriate process for having the outcome of his
case reviewed. When he did not get the result he wanted, he first objected to the
14. magistrate’s decision, as provided for in Civ.R. 53(D)(4)(b), then he filed a timely notice
of appeal, as provided for in App.R. 3 and 4. This is all that he was required to do.
Because Town has properly pursued this appeal that he is entitled to, we are required to
review it. Thus, we reject Sidoti’s claim that we must disregard Town’s arguments
because they have already been rejected by the magistrate and the trial court.
B. Town did not prove the elements of negligent misrepresentation.
{¶ 46} After reviewing the record, we find that Town failed to prove all of the
element of negligent misrepresentation, and the trial court did not abuse its discretion by
adopting the magistrate’s decision.
{¶ 47} Generally, we review a trial court’s decision on objections to a magistrate’s
decision for an abuse of discretion. Baker v. R/A Cab Co., 2019-Ohio-4375, ¶ 10 (6th
Dist.). Abuse of discretion means that the trial court’s decision is unreasonable, arbitrary,
or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996).
However, when an appeal from a trial court’s action on a magistrate’s decision presents a
question of law, we review the issue de novo. Slayton v. Peterson, 2024-Ohio-863, ¶ 19
(6th Dist.).
Negligent misrepresentation occurs when
“[o]ne 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.”
(Emphasis added and deleted.) Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4 (1989),
15. quoting 3 Restatement of the Law 2d, Torts, § 552(1), at 126-127 (1965). Negligent
misrepresentation is a business tort and, “[t]herefore, the elements for negligent
misrepresentation ‘require (1) a defendant who is in the business of supplying
information; and (2) a plaintiff who sought guidance with respect to his business
transactions from the defendant.’” Hamilton v. Sysco Food Servs. of Cleveland, Inc.,
2006-Ohio-6419, ¶ 20 (8th Dist.), quoting Nichols v. Ryder Truck Rental, Inc., 1994 WL
285000 (8th Dist. June 23, 1994).
{¶ 48} Here, Town was not involved in a “business transaction” as a matter of law.
He, as an individual, purchased the condo from another individual for use as his personal
residence. Nothing about this transaction indicates that Town entered into it for business
purposes. Because he was not involved in a business transaction, the information that
Sidoti supplied in the MLS listing could not have been “for the guidance of [Town] in
[his] business transactions,” as required to prove negligent misrepresentation. Delman at
4. Therefore, Town failed to prove this element of negligent misrepresentation.
{¶ 49} Town cites cases to support his position that negligent misrepresentation is
applicable to real estate transactions like the purchase of his condo, but these cases do not
address the business transaction element of negligent misrepresentation. See Jochum v.
Howard Hanna Co., 2020-Ohio-6676 (11th Dist.); Davis v. Montenery, 2007-Ohio-6221
(7th Dist.). In Jochum, the Eleventh District summarily affirmed summary judgment on
the plaintiff’s negligent misrepresentation claim because he presented no evidence that
the defendants supplied him with false information, without ever addressing whether the
parties were engaged in a business transaction. Jochum at ¶ 40. And in Davis, the
16. Seventh District found that the negligent misrepresentation claim failed and summary
judgment was appropriate because the plaintiff failed to show justifiable reliance, without
ever addressing whether the parties were engaged in a business transaction. Davis at ¶
74-75. Because these cases did not address a critical element of the negligent
misrepresentation test, we find that they are distinguishable.
{¶ 50} Further, even if we assume that the real estate sale was a “business
transaction,” Town failed to show justifiable reliance on Sidoti’s statement in the MLS
listing. “Reliance is justifiable if the representation does not appear unreasonable on its
face and if there is no apparent reason to doubt the veracity of the representation under
the circumstances.” Amerifirst Savs. Bank of Xenia v. Krug, 136 Ohio App.3d 468, 495
(2d Dist. 1999). Justifiable reliance, as compared to reasonable reliance, “‘is a matter of
the qualities and characteristics of the particular plaintiff, and the circumstances of the
particular case, rather than of the application of a community standard of conduct to all
cases.’” Id. at 496, quoting Field v. Mans, 516 U.S. 59, 70-71 (1995). In determining
whether one party justifiably relied on the other’s statements, “the court must inquire into
the relationship between the parties. . . [and] 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.” Mishler v. Hale,
2014-Ohio-5805, ¶ 33 (2d Dist.).
{¶ 51} In this case, as the magistrate found and the trial court adopted, the facts do
not support a finding that Town’s reliance on the representation in the MLS listing was
justified. Town toured the condo twice but admitted that he did not investigate whether
17. the floors in the master bedroom were heated or whether the thermostat in the master
bathroom controlled the floors in the master bedroom. He also chose not to have the
condo inspected before purchasing it. Instead, he chose to rely on a year-old inspection
that did not mention any heated flooring (including in the master bathroom), which still
did not prompt him to investigate the existence or extent of the heated floors in the master
suite. Beyond that, the MLS listing itself clearly states that “[a]ll data is subject to error,
omissions or revisions and is NOT warranted.” And Town and Routh testified that Town
did not mention the importance of heated floors to anyone before closing.
{¶ 52} In Abbott v. Loss Realty Group, 2005-Ohio-5876, a case similar to this one,
we likewise found that the plaintiffs failed to prove justifiable reliance. There, the
sellers’ real estate agent listed the home as 1,991 square feet, but shortly after closing, the
Abbotts learned that it was actually 1,445 square feet. Id. at ¶ 5-6. The Abbotts had
inspected the home three times before closing; the fact sheet with the square footage also
included the wrong number of bedrooms; the only comment one of them made about the
size of the house was that “‘he was not comfortable that the living room was big enough
for some of his furniture’”; the tax records for the home showed that it had 1,991 square
feet, which included a 480 square foot garage; the purchase contract stated that the
Abbotts were purchasing the home subject to inspection rights and in as-is condition; and
the information sheet on which the sellers’ agent included the square footage of the house
included the statement, “‘[a]ll information herein is from sources deemed reliable. No
representation is made as to its accuracy. It is provided subject to error and omissions
and to change of price or terms, prior sale or lease, or withdrawal, all without notice.’”
18. Id. at ¶ 11-14. Based on those facts, and the fact that the Abbotts neither directly inquired
about the size of the house before closing nor told anyone that the price-per-square-foot
of the house was a material factor in their decision to purchase that house, we found that
the Abbotts did not justifiably rely on the information in the listing sheet, so their
negligent misrepresentation claim failed. Id. at ¶ 24. We specifically found that the
language on the fact sheet disclaimed liability. Id. at ¶ 25.
{¶ 53} Like the Abbotts, Town had ample opportunity to inspect the floors in the
master suite, he was warned that the information on the MLS listing sheet might not be
accurate and was not guaranteed, and he did not tell either of the real estate agents that
heated bedroom floors were important to his purchase decision. Under these
circumstances, we cannot say that the trial court abused its discretion by adopting the
magistrate’s determination that Town did not justifiably rely on Sidoti’s statement about
heated floors in the master suite. Therefore, Town’s assignment of error is not well-
taken.
III. Conclusion
{¶ 54} For the foregoing reasons, the August 6, 2025 judgment of the Sandusky
Municipal Court is affirmed. Town is ordered to pay the costs of this appeal under
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
19. Thomas J. Osowik, P.J. JUDGE
Christine E. Mayle, J. JUDGE
Myron C. Duhart, J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
DUHART, J., Concurring,
{¶ 55} I write separately from the majority because I believe the analysis applied
in this case reflects an unduly restrictive interpretation of negligent misrepresentation and
does not adequately address several critical issues raised by the facts before us.
In my view, courts construing the elements of negligent misrepresentation often
read those requirements too narrowly, thereby improperly denying recovery to
foreseeable plaintiffs—such as purchasers of residential real estate—who suffer harm as
a result of false information disseminated through an MLS listing.
{¶ 56} Relatedly, this case presented a meaningful opportunity regarding the
extent to which a buyer of real property may reasonably rely on professional
representations made by a seller’s agent. It also warranted examination of whether Sidoti,
as the seller’s agent in this matter, failed to exercise reasonable care or competence in
20. obtaining or communicating the information concerning the heated floors in the master
suite.
{¶ 57} I believe the court’s analysis was incomplete in assessing justifiable
reliance. In my view, the trial court in its analysis should have placed a higher level of
scrutiny on whether the information at issue was false and whether Sidoti exercised
reasonable care in obtaining or communicating that information. Instead, it seems the
court focused almost exclusively on Town’s alleged failure to investigate, while giving
no consideration to the MLS statement itself or to the role that statement may have
played in shaping Town’s actions.
{¶ 58} However, despite these concerns, I recognize that the trial court retained
discretion to determine whether Town’s reliance on Sidoti’s statement regarding heated
floors in the master suite was justified. For that reason, I concur in the majority’s opinion
regarding justifiable reliance.
{¶ 59} With respect to the requirements for establishing negligent
misrepresentation, I accept that the majority accurately recites the formal elements of this
claim. However, I believe the majority opinion neglects to acknowledge that this court
has also previously made clear—that the “essential elements” of negligent
misrepresentation are simply “false information and justifiable reliance.” Abbott v. Loss
Realty Group, 2005-Ohio-5876, ¶ 23 (6th Dist.). Notably absent from the list of
“essential” elements is any strict requirement that a plaintiff must be guided in his
“business transactions” by the defendant in order to succeed on a negligent
misrepresentation claim.
21. {¶ 60} Likewise, in Moffitt, 2006-Ohio-3064 (6th Dist.), this court has previously
interpreted the “business transactions” component of negligent misrepresentation with
considerable breadth when we held that a negligence claim based on allegedly false
representations by a doctor’s office—specifically, that it would notify the plaintiff’s
employer that the plaintiff was medically unable to attend work—was sufficient on its
face to support a negligent misrepresentation claim.
{¶ 61} Consistent with this court’s approach in Moffitt, I believe the tort of
negligent misrepresentation should be broadened to include circumstances such as those
presented here, even though Town was not engaged in a “business transaction” in the
narrow sense typically contemplated.
{¶ 62} Nevertheless, because Town was not involved in a narrowly contemplated
business transaction, the information Sidoti supplied in the MLS listing cannot be said to
have been provided “for the guidance of [Town] in [his] business transactions.” For this
reason and those stated above, I ultimately concur with the majority’s conclusion that
Town failed to establish a claim for negligent misrepresentation.
22.