Jochum v. Howard Hanna Co.
2020 Ohio 6676
Ohio Ct. App.2020Background
- In 2015 Michael Jochum purchased a home represented by buyer’s agent Lisa DeMario; seller’s agent was John DeSantis; both were Howard Hanna agents.
- After moving in Jochum experienced recurring sump/footer-drain problems; he later learned the property sat on an illegal salt dump and obtained estimates showing removal would exceed home value.
- Jochum sued Howard Hanna, DeSantis, and DeMario (sellers sued separately), alleging fraud/non-disclosure, negligent misrepresentation, breach of fiduciary duty, breach of contract, unjust enrichment/quantum meruit, and related claims; he also alleged concealment of a Howard Hanna “money back guarantee.”
- During discovery, Jochum submitted an affidavit opposing summary judgment; the trial court struck parts and declined to consider unattested exhibits, then granted summary judgment for defendants.
- Evidence showed Jochum received and initialed property-disclosure forms noting footer/sump issues, attended an inspection, signed the purchase agreement electronically (with the guarantee crossed out), and offered no evidence the agents knew of the salt dumping.
- Agents testified they did not know of the salt problem pre-closing, their group was ineligible for the Howard Hanna guarantee, and the seller never elected the program; the appellate court affirmed summary judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud / fraudulent nondisclosure | DeSantis/DeMario knew or should have known of salt dump and concealed it to obtain commission | No evidence agents knew of salt; no duty to disclose facts they did not know; retained commission not dispositive | Summary judgment for defendants — no proof of misrepresentation or concealment |
| Negligent misrepresentation | Agents negligently failed to disclose/communicate material facts | No affirmative false statement supplied by agents; negligent misrep requires an affirmative false statement | Summary judgment for defendants — claim requires false statement, none shown |
| Breach of fiduciary duty | Agents breached duties by concealing defects and guarantee option | No evidence agents breached fiduciary duties or failed to act under a fiduciary obligation | Summary judgment for defendants — no proof of duty breach |
| Unjust enrichment / quantum meruit | Agents unjustly retained commissions given alleged wrongdoing | No showing it would be unjust to retain lawful commissions; express contract covered transaction | Summary judgment for defendants — unjust enrichment not established |
| Breach of contract | DeMario/DeSantis breached an agreement (including guarantee) | No contractual relationship with DeSantis; no evidence DeMario breached contract terms | Summary judgment for defendants — no breach proven |
| Use of plaintiff affidavit / summary judgment standard | Affidavit raises genuine issues of fact | Affidavit contains hearsay, legal conclusions, contradictions with deposition; exhibits unauthenticated | Court selectively excluded noncompliant affidavit portions/exhibits and properly applied Civ.R.56 standards; SJ affirmed |
Key Cases Cited
- Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist. 1993) (standard of appellate review for summary judgment)
- Holliman v. Allstate Ins. Co., 86 Ohio St.3d 414, 715 N.E.2d 532 (Ohio 1999) (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (movant’s and nonmovant’s burdens on summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (materiality and genuine-issue standard at summary judgment)
- Gaines v. Preterm‑Cleveland, Inc., 33 Ohio St.3d 54, 514 N.E.2d 709 (Ohio 1987) (elements of fraud)
- Delman v. Cleveland Hts., 41 Ohio St.3d 1, 534 N.E.2d 835 (Ohio 1989) (elements of negligent misrepresentation)
- West Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 684 N.E.2d 1261 (Ohio appellate 1996) (negligent-misrepresentation claims do not lie for omissions)
- Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923 (Ohio 1938) (principles of unjust enrichment)