Duncan v. Fifth Third Bank
2019 Ohio 3198
Ohio Ct. App.2019Background
- Fifth Third Bank bought the Duncans' foreclosed property at sheriff’s sale in June 2013 and later marketed it for resale.
- In 2014 Brandy Duncan (on behalf of her parents) says the bank agreed orally to sell the property for $117,000; she signed a purchase contract but the bank never signed and later sent a $195,000 counter-offer.
- The Duncans initially sued in 2015; that action was dismissed without prejudice. Brandy refiled in 2017 asserting breach of contract, breach of good faith and fair dealing, and misrepresentation.
- The bank moved for summary judgment arguing the alleged contract is unenforceable under Ohio’s statute of frauds (no writing signed by the bank), lack of reliance damages, and that the non-contract tort claims are not independent.
- The trial court granted summary judgment for the bank; the appellate court affirms, holding the alleged agreement is barred by the statute of frauds, promissory estoppel was not pled (and would lack reliance damages), and the other claims cannot stand independently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged sale agreement is enforceable despite no bank signature (statute of frauds) | Duncan: oral promise + signed purchase contract by her establishes enforceable agreement | Fifth Third: R.C. 1335.05 requires a writing signed by the defendant; no such writing exists | Court: Agreement unenforceable under statute of frauds (no bank signature) |
| Whether promissory estoppel removes the agreement from the statute of frauds | Duncan: promissory estoppel should allow enforcement/damages despite lack of signed writing | Bank: Olympic Holding bars using promissory estoppel to prevent assertion of statute-of-frauds defense here | Court: Promissory estoppel was not pleaded; Olympic precludes using it to defeat statute-of-frauds as an affirmative defense; even if pleaded, reliance damages lacking |
| Whether breach of duty of good faith and fair dealing may be alleged independently | Duncan: breached duty when bank reneged on price | Bank: No enforceable contract, so no contractual duty; duty-of-good-faith claim is not a standalone cause of action | Court: Claim fails—no enforceable contract and duty-of-good-faith cannot ordinarily stand alone |
| Whether misrepresentation claim survives independently of contract | Duncan: bank misrepresented the $117,000 sale price causing harm | Bank: Allegations mirror contractual dispute; no separate duty alleged; damages not shown for Brandy | Court: Claim fails—no duty separate from contract and no proximate reliance damages shown |
Key Cases Cited
- Olympic Holding Co., L.L.C. v. ACE Ltd., 909 N.E.2d 93 (Ohio 2009) (promissory estoppel cannot be used to bar assertion of statute-of-frauds defense where promise was to sign a writing)
- Village of Grafton v. Ohio Edison Co., 671 N.E.2d 241 (Ohio 1996) (standard of review for summary judgment cited)
- Harless v. Willis Day Warehousing Co., 375 N.E.2d 46 (Ohio 1978) (Civ.R. 56 summary judgment burden articulated)
- 425 Beecher, L.L.C. v. Unizan Bank, Natl. Assn., 927 N.E.2d 46 (Ohio App.) (tort claim arising from same facts as contract claim exists independently only if a duty separate from the contract is breached)
- Martin v. Ohio State Univ. Found., 742 N.E.2d 1198 (Ohio App.) (elements of intentional and negligent misrepresentation include justifiable reliance and proximate damages)
- Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 684 N.E.2d 1261 (Ohio App.) (explains requirement that a tort independent of contractual duties be alleged for non-contractual recovery)