IVAN SOSIC, ET AL. v. STEPHEN HOVANCSEK & ASSOCIATES, INC., ET AL.
No. 109993
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 29, 2021
[Cite as Sosic v. Hovancsek & Assocs., Inc., 2021-Ohio-2592.]
EILEEN T. GALLAGHER, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-19-917712 and CV- 20-932021
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: July 29, 2021
Appearances:
Daniel Mark Katz Co., L.P.A., and Murray Richelson, for appellants.
Reminger Co., L.P.A., Holly Marie Wilson, and Gregory G. Guice, for appellees.
EILEEN T. GALLAGHER, J.:
{¶ 1} Plaintiffs-appellants, Ivan (individually “Ivan“) and Izidora Sosic (individually “Izidora“) (together “the appellants“), appeal from the trial court‘s judgment granting a motion for judgment on the pleadings in favor of defendants-
- The trial court erred by applying a heightened pleading standard claimed by defendant that has been rejected by the Eighth District.
- The trial court erred by holding a professional may not be held liable by a third party for professional negligence whose reliance is justifiably foreseen.
- The trial court erred by holding the complaint does not state a claim for negligent supervision.
{¶ 2} After careful review of the record and relevant case law, we reverse the trial court‘s judgment and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶ 3} In October 2014, the appellants sold real property to their neighbors, John (individually “John“) and Christina Susnik (individually “Christina“) (together “the Susniks“). Upon the purchase of the property, John retained SHA to perform a topographic survey to determine if there was an existing easement on the property. The survey was performed by SHA employees, Snezek and John Doe (“John Doe“), who assessed the property and marked the relevant property lines with survey sticks.
{¶ 4} At some point, Ivan reviewed the work performed by SHA and removed various survey sticks that he believed were improperly placed several feet onto his property. The Susniks took issue with Ivan‘s conduct and called the police.
{¶ 6} In May 2020, the appellees filed a motion for judgment on the pleadings pursuant to
{¶ 8} In June 2020, the appellees filed a reply brief in support of their motion for judgment on the pleadings. Within the filing, the appellees’ reiterated that the appellants’ complaint “did not allege that they relied upon any information provided by the defendants.” Noting that the appellants’ claim for negligent supervision was pursued against Snezek, and not SHA, the appellees further argued that the complaint failed to establish an employment relationship between Snezek and John Doe and does not allege that Snezek had notice of John Doe‘s incompetence.
{¶ 9} In July 2020, the trial court granted the appellees’ motion for judgment on the pleadings, stating, in relevant part:
It is undisputed there was no contract between plaintiff and Susnik‘s surveyors. The negligent surveyor does not owe a duty to plaintiff based on Susnik‘s contract in the absence of privity. [Ivan] did not employ the negligent surveyor.
Although there are exceptions to the requirement of privity, none apply. Those exceptions involve claims where the injured party reasonably relies on the erroneous survey. Plaintiff was not relying on the erroneous survey when removing the stake.
Since there can be no breach of contract, plaintiffs’ action can proceed if founded on tort law. “[T]o establish actionable negligence, one must
show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The issue of whether a duty exists is a question of law for the courts. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989)[.] The duty does not extend to persons who do not rely on the transaction. It was unforeseeable to [SHA] that Sosic would rely on the survey. More important, [Ivan] did not rely on [SHA]‘s survey.
{¶ 10} In September 2020, the trial court issued a nunc pro tunc journal entry to clarify that the complaint against the appellees was dismissed with prejudice, resulting in a final, appealable order. The matter remains pending against defendant John Susnik.
{¶ 11} The appellants now appeal from the trial court‘s judgment.
II. Law and Analysis
A. Sufficiency of Pleadings
{¶ 12} In their first assignment of error, the appellants argue the trial court erred by applying a heightened pleading standard that has been expressly rejected by this court. In their second assignment of error, the appellants argue the trial court erred in holding that a professional may not be held liable by a third-party for professional negligence whose reliance is justifiably foreseen. In their third assignment of error, the appellants argue the trial court erred by holding the complaint does not state a claim for negligent supervision.
{¶ 13} Collectively, the forgoing assignments of error assert that the trial court (1) failed to adequately apply the notice-pleading standard set forth under
{¶ 14} We review a ruling on a motion for judgment on the pleadings de novo. Coleman v. Beachwood, 8th Dist. Cuyahoga No. 92399, 2009-Ohio-5560, ¶ 15. Motions for judgment on the pleadings are governed by
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.
{¶ 15} Unlike a motion for summary judgment where the parties are permitted to submit certain evidentiary materials for the court‘s review, the determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the complaint. Peterson v. Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973).
{¶ 16} Under
{¶ 17} Regarding the factual allegations supporting the claims against the appellees, we note that “under the notice pleading requirements of
{¶ 18} In this case, the appellants pursued a claim of professional negligence, alleging that SHA employee, John Doe, negligently misrepresented the boundary line of Susnik‘s property in the course and scope of his employment. The appellants further alleged that “said negligence breached the standard of acceptable practices and professionalism in the surveying community,” and resulted in damages, including (1) legal expenses incurred in defending Ivan‘s wrongful arrest, (2) damage to Ivan‘s reputation, and (3) the appellants’ inability to sell their property.
{¶ 19} In order to establish a claim for professional negligence, a plaintiff must demonstrate (1) the existence of a duty, (2) breach of that duty, and (3) damages proximately caused by the breach. Damon‘s, Inc. v. Burman, 10th Dist. Franklin No. 99AP-10, 1999 Ohio App. LEXIS 6485 (Dec. 21, 1999), citing Second
{¶ 20} More specifically, to recover in an action for professional negligence, the plaintiff has the burden of proving (1) the standard of care within the profession, (2) the defendant‘s failure to adhere to the professional standards, and (3) that the defendant‘s failure to adhere to the professional standards proximately caused harm to the plaintiff. Weaver v. Carson, 62 Ohio App.2d 99, 404 N.E.2d 1344 (8th Dist.1979). Thus, “a surveyor is liable for professional negligence if it is established that the surveyor failed to perform his work according to the standards of the surveying community and thereby proximately caused damages.” Lawson v. Thomas Winemiller & Assocs., 2d Dist. Montgomery No. 14508, 1995 Ohio App. LEXIS 20436, 6 (May 17, 1995), citing Brookewood W. v. Adlaka, 7th Dist. Mahoning No. 88 C.A. 82, 1989 Ohio App. LEXIS 3513 (Sept. 13, 1989).
{¶ 21} In order to establish the existence of a duty, the appellants were required to demonstrate a relationship between themselves and the appellees. Bope v. A.W. Chesterton Co., 8th Dist. Cuyahoga No. 85215, 2005-Ohio-5432, ¶ 6 (“Absent a legal duty, there can be no liability for a negligent act); see also Dabney v. Metro Appraisal Group, Inc., 8th Dist. Cuyahoga No. 106917, 2018-Ohio-4601, ¶ 26. The issue of whether a duty exists is a question of law for the courts. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). An appellate court reviews a question of law de novo; accordingly, it owes no deference to the decision of the trial court. See Ohio Bell Tel. Co. v. Pub. Util. Comm., 64 Ohio St.3d
{¶ 22} Traditionally, those seeking economic damages for professional malpractice ordinarily must be in privity of contract with the service provider. Hines v. Kline Eng., 2d Dist. Greene No. 97-CA-123, 1998 Ohio App. LEXIS 2969, 13 (July 2, 1998), citing Floor Craft Floor Covering, Inc. v. Parma Comm. Gen. Hosp. Assn., 54 Ohio St.3d 1, 6, 560 N.E.2d 206 (1990). Nevertheless, a professional may still owe a duty to a plaintiff who is not in privity of contract with him if a sufficient nexus exists between them that can serve as a substitute for contractual privity. Id.; see also Clevecon, Inc. v. Northeast Ohio Regional Sewer Dist., 90 Ohio App.3d 215, 221, 628 N.E.2d 143 (8th Dist.1993). Such a nexus will usually exist only when the plaintiff is a member of a limited class whose reliance is specifically foreseen. Floor Craft at 6, citing Haddon View Invest. Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 436 N.E.2d 212 (1982).
{¶ 23} Consistent with the foregoing, the Ninth District has recognized that there is, under limited circumstances, a tort vehicle for the recovery of damages that result from breach of a contractual duty. DeCapua v. Lambacher, 105 Ohio App.3d 203, 663 N.E.2d 972 (9th Dist.1995). The court, referencing 3 Restatement of the Law 2d, Torts, Section 552 (1977), explained as follows:
The Supreme Court of Ohio has recognized this doctrine as imposing liability on a professional who has negligently supplied information for the guidance of others in their business transactions, where the recipient of the information, a foreseeable person, justifiably relies upon it. See Gutter v. Dow Jones, Inc., 22 Ohio St.3d 286, 288-89, 490
N.E.2d 898 (1986); Haddon View Investment Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 156-57, 436 N.E.2d 212 (1982). It appears that other jurisdictions have found this to be a viable theory upon which to impose liability upon a surveyor who negligently sets a boundary line. See [Annotation, Surveyor‘s Liability for Mistake in, or Misrepresentation as to Accuracy of, Survey of Real Property, 117 A.L.R.5th 23, Section 5a].2 * * * The duty acknowledged by this section of the Restatement does not, however, extend to persons who do not rely upon the information.
Id. at 206. See also Orshoski v. Krieger, 6th Dist. Ottawa No. OT-01-009, 2001 Ohio App. LEXIS 5018, 10 (Nov. 9, 2001) (“Applying Section 552, a growing number of Ohio courts have demonstrated a willingness to impose tort liability for negligent misrepresentation in the business context, thereby eliminating any requirement of privity.“).
{¶ 24} In this case, it is undisputed that there is no privity of contract or formal relationship between the parties. The appellants are a third-party to the contract entered into between the Susniks and SHA. Nevertheless, the appellants argue on appeal that “the fact that there was no contract between plaintiffs and defendant surveyor, does not relieve them of tort liability.”
{¶ 25} Construing the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the appellants as true, we
{¶ 26} The appellants’ complaint further alleged that SHA employee, Snezek, was negligent in supervising the surveying work performed by John Doe. The elements of a claim for negligent supervision include the following:
(1) the existence of an employment relationship; (2) the employee‘s incompetence; (3) the employer‘s actual or constructive knowledge of such incompetence; (4) the employee‘s act or omission causing the
plaintiff‘s injuries; and (5) the employer‘s negligence in hiring or retaining the employee as the proximate cause of plaintiff‘s injuries.
Retuerto v. Berea Moving Storage & Logistics, 8th Dist. Cuyahoga No. 102116, 2015-Ohio-2404, ¶ 55.
{¶ 27} On appeal, the appellants argue the complaint alleged sufficient facts to create the reasonable inference that the harm sustained by the appellants would not have resulted had the SHA employees been properly trained and supervised. After careful consideration, we are persuaded by the appellants’ position. Although the complaint does not list the elements of the claim in detail, the appellants have raised factual allegations that are necessary to establish a claim for negligent supervision. In this case, the appellants have undoubtedly alleged that Snezek and John Doe were employees of SHA and that Snezek failed to adequately supervise John Doe, resulting in the inaccurate surveyance of the parties’ property lines. The complaint indicates that Snezek was present at the time John Doe performed the disputed surveyance and, therefore, had actual or constructive knowledge of John Doe‘s job performance. Collectively, the allegations contain “a short and plain statement of the claim showing that the party is entitled to relief.”
{¶ 28} Based on the foregoing, the appellants’ second and third assignments of error are sustained. The first assignment of error is rendered moot.
{¶ 29} Judgment reversed and remanded.
It is ordered that appellants recover from appellees the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR
Notes
Although continuing to follow the general view that a surveyor only owes a duty of care to parties in contractual privity with the surveyor, some courts have dispensed with the privity of contract requirement through application of the tort theory of negligent misrepresentation, whereby a surveyor may be held liable to a third party who detrimentally relied upon an inaccurate survey if the third party‘s reliance was reasonably foreseeable.