2006 Ohio 5061 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} On November 22, 2005, this matter was tried to the bench on four separate claims: (1) breach of contract; (2) breach of fiduciary duty and obligation of good faith; and (3) violation of R.C.
{¶ 3} In her first assignment of error, Ligman argues that the trial court erred in granting judgment in favor of the Realty One on her breach of contract claim. We disagree.
{¶ 4} Ms. Ligman asserts that Realty One breached a contract entitled Sales Associate Independent Contractor Agreement entered into by and between the parties on June 28, 1994 (the "Contract"), by failing to pay her commissions on the contract price of eight homes located on eight lots in Glencairn Forest, a residential housing development in Richfield, Ohio (the "Commissions"). Realty One asserts that the Commissions were not collectible from the homeowner or builder per the contract between the landowner and the homeowner that provided for the payment of the Commissions (the "Sublot Contracts") and that per the Contract, Ligman was only to be paid once commissions were collected by Realty One. The Contract also provides that the extent and nature of any collection efforts are solely within Realty One's discretion.
{¶ 5} When reviewing a breach of contract action, "[c]ourts generally determine the existence of a contract as a matter of law." Applegate v. Northwest Title Co., 10th Dist. No. 03AP-855,
{¶ 6} At trial, it was established that the parties entered into the Contract, which was admitted as Plaintiff's Exhibit A at Trial. The Contract reads in pertinent part:
"In no event shall Broker be liable to Sales Associate for any commission unless it shall have been collected from the party for whom the services were performed.
"In no event shall the broker be liable to the Sales Associate for any commissions unless the same shall have been actually received by the broker from (a) the party for whom the services were performed or (b) some other entity making a payment of said commission to the broker in [sic] behalf of the party for whom the service was performed." Contract at ¶ 6.
"Suit for commission shall be maintained only in the name of the Broker and it is solely the right of the Broker to take legal action as well as to settle, compromise or release any claim for commission." Contract at ¶ 8.
{¶ 7} Ms. Ligman testified that she signed the Contract. She presented no evidence that any of the above provisions were unenforceable or not applicable. Per the plain terms of the Contract, it was solely within Realty One's discretion to determine what, if any, unpaid commissions might be due to Ms. Ligman and what, if any, efforts were to be made to collect said commissions. Realty One decided, after consultation with counsel, that it did not have any legal grounds to sue to recover the unpaid Commissions from the builder or the homeowner as there was no agreement binding the builder or homeowner to pay the Commissions to Realty One. Given this, the decision by Realty One to cease collection efforts is not arbitrary or unreasonable and was not a breach of its obligations under the Contract. Ligman's first assignment of error is overruled.
{¶ 8} Ligman's second assignment of error alleges that Realty One breached a fiduciary duty to Ligman and an obligation of good faith by telling her that it would attempt to collect the Commissions and then stopping its collection efforts. We disagree.
{¶ 9} A fiduciary is one who, due to his own undertaking, has a duty to act "primarily for the benefit of another in matters connected with his undertaking." (Emphasis omitted.) Haluka v.Baker (1941),
{¶ 10} There is nothing in the Contract that expressly gives rise to a fiduciary relationship and Ligman has not established that the parties jointly agreed to form such special relationship. Ligman failed to present the trial court with evidence tending to show that Realty One intended to create a fiduciary relationship by making such statements and Ligman cannot create such a relationship unilaterally. She has not established that Realty One's statements to Ligman related to its collection efforts established a de facto special relationship under Ohio law. The relationship between the parties is purely contractual and, as established above, Realty One acted in accordance with that Contract.
{¶ 11} As to Ligman's assertion of a breach of the obligation of good faith, "[c]ourts often refer to the obligation of good faith that exists in every contractual relation, * * * [but] this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document." Ed Schory Sons, Inc. v. Soc. Natl. Bank (1996),
{¶ 12} Ligman asserts that Realty One violated R.C.
{¶ 13} The trial court found that R.C.
{¶ 14} Ligman's assertions based on R.C.
{¶ 15} Ligman asserts that the trial court's judgment on Ligman's claims in favor of Realty One is against the manifest weight of the evidence.
{¶ 16} Reversal on manifest weight grounds is reserved for the exceptional case in which the evidence proves that the "trier of fact clearly lost its way and created such a manifest miscarriage of justice that the [decision] must be reversed."Stephenson v. Stephenson,
This Court applies the same manifest weight analysis in both criminal and civil cases. Ray v. Vansickle (Oct. 14, 1998), 9th Dist. Nos. 97CA006897/97CA006907, at *1. This requires the appellate court to "review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way." Id.; Otten, at paragraph one of the syllabus.
{¶ 17} It is undisputed that the Contract was binding as to both parties. Section six of the Contract provides that Ligman would not be paid any commission until such time as Realty One collected from the party for whom the services were performed. It is undisputed that Realty One did not collect the Commissions. Section eight of the Contract provides Realty One with the sole right to take legal action as well as settle, compromise or release any claim.
{¶ 18} Ms. Groom testified that Realty One decided not to pursue collection of the Commissions based on the advice of counsel that they had a poor legal basis for any claims against the builder or property owners for the payment of the Commissions. Ms. Ligman acknowledged the tentative nature of the Commissions when she signed the January 11, 2002 memo from Carla Groom, Plaintiff's Exhibit D. In support of Realty One's position relative to the uncollectible nature of the Commissions, Mike Marochino, Thomas Boggs and John Sinopoli testified that their companies, as builders, were not obliged to pay the Commissions based on the Sublot Agreements. Nor did any of their companies have an independent agreement with Realty One to do so.
{¶ 19} Upon careful review of the testimony and evidence presented at trial, we hold that the court did not lose it way or act contrary to the manifest weight of the evidence in finding that Realty One did not breach the Contract or any fiduciary duty to Ligman by ultimately deciding not to pursue collection of the Commissions. Accordingly, Defendant's fourth assignment of error is overruled and the Judgment of the Summit County Court of Common Pleas is affirmed on all assignments of error.
Judgment Affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Carr, J. Concurs in judgment only
Concurrence Opinion
{¶ 20} While I concur in the result reached by the majority, I write separately as I am not convinced that the appellant has failed to establish the existence of a fiduciary relationship with the appellee. The majority opinion allows that a fiduciary relationship may be created either formally or informally, but appears to discount the undisputed testimony of the appellant that the appellee made verbal promises, in addition to a written commitment, to attempt collection on her behalf. I do not see this as a unilateral imposition of a relationship. I would find, however, that even assuming appellant established the existence of a fiduciary relationship, she failed in her proof that the duty was breached, as the appellee fulfilled its duty. Accordingly, I respectfully concur in the judgment of the majority only.