Carter v. Gerbec
2016 Ohio 4666
Ohio Ct. App.2016Background
- In 2008 Geraldine Carter contracted with S&C Property Management Service, LLC (owned by Susan Gerbec) to manage Carter’s rental properties; S&C (not CBH Realty) was the contracting party.
- Gerbec was a licensed real estate salesperson who transferred her license to Coldwell Banker Hunter Realty (CBH Realty) after Kelley Realty merged into CBH; she operated S&C from a separate suite and signed an agreement prohibiting property-management activities in CBH’s name.
- Carter alleged S&C/Gerbec breached management agreements and committed torts (fraud, conversion, negligence, breach of fiduciary duty, negligence per se, civil conspiracy); she sued S&C, Gerbec, CBH Realty, and others.
- CBH Realty moved for summary judgment arguing it was not vicariously liable for Gerbec’s alleged torts; the trial court granted summary judgment; Carter’s motion to reconsider was denied.
- Carter appealed only the grant of summary judgment to CBH on respondeat superior grounds and the denial of reconsideration; she later settled with other defendants but did not timely submit a dismissal entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBH Realty is vicariously liable under respondeat superior for Gerbec’s alleged torts | Carter: Auer makes scope of agency a fact question; summary judgment inappropriate because Gerbec’s affiliation and referrals create factual dispute | CBH: Gerbec performed property-management through S&C, not CBH; she was contractually prohibited from managing in CBH’s name and CBH received no benefit or commission | Held: No genuine issue — reasonable minds can only conclude Gerbec’s acts were self-serving and outside scope of agency; summary judgment for CBH affirmed |
| Whether Auer precluded summary judgment on scope-of-agency here | Carter: Auer requires jury determination of scope because agent held broker license | CBH: Auer does not eliminate summary-judgment adjudication where no factual dispute about lack of benefit to broker exists | Held: Auer does not preclude summary judgment when evidence shows agent’s acts were not intended to facilitate broker’s business |
| Whether evidence submitted on reconsideration (affidavit + utility bills) created a new admissible fact issue | Carter: New evidence shows CBH directly benefited (use of Carter’s tax ID to open accounts for CBH listings) | CBH: Evidence is hearsay and bills unauthenticated; inadmissible under Civ.R. 56/Civ.R. 56(E) | Held: Affidavit statements are hearsay and bills unauthenticated; not properly before the court; reconsideration denial affirmed |
| Whether the trial court abused discretion by denying reconsideration while case was interlocutory | Carter: Motion to reconsider should have been granted in light of new evidence | CBH: Court properly considered interlocutory posture and evidentiary defects | Held: Denial proper; de novo review shows no admissible new evidence to defeat summary judgment |
Key Cases Cited
- Auer v. Paliath, 140 Ohio St.3d 276 (Ohio 2014) (scope of agent’s employment ordinarily is a fact question; bright-line rule imposing broker liability rejected)
- Byrd v. Faber, 57 Ohio St.3d 56 (Ohio 1991) (intentional torts are within scope only if calculated to facilitate employer’s business)
- Osborne v. Lyles, 63 Ohio St.3d 326 (Ohio 1992) (scope of employment is a question of law only when reasonable minds can reach but one conclusion)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary judgment standard)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (de novo appellate review of summary judgment)