[Cite as Carpenter v. Long , 196 Ohio App.3d 376, 2011-Ohio-5414.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO CARPENTER, : Appellant, : C.A. CASE NO. 2011 CA 3

v. : T.C. NOS. 08CV1173/08CV317 LONG et al., : (Civil appeal from Common Pleas Court) Appellees. :

. . . . . . . . . ARTHUR et al., : C.A. CASE NO. 2011 CA 4 Appellants, : T.C. NO. 08CV1173/08CV317 v. : (Civil appeal from Common Pleas Court) LONG et al., : Appellees. :

. . . . . . . . . . O P I N I O N

Rendered on the 21st day of October , 2011.

. . . . . . . . . . Joseph P. Moore, for appella nt Anna M. Carpenter. Ray C. Freudiger and Mark C. Engling, for appellees George Long and Big Hill Realty Cor p., d.b.a. Big Hill GMAC Real Estate. Paul M. Courtney and John B. Huber, for appe llants Richard D. Arthur and Chanin Clymer.

Thomas L. Czechowski and Jo seph C. Krella, for appellee Stoneridge Development, Ltd.

. . . . . . . . . .2 D ONOVAN , Judge. {¶ 1} This matter is before the court on the notices of appeal of Anna M. Carpenter, filed January 13, 2011, and Richard D. Arthur and Chanin L. Clymer , filed January 14, 2011. {¶ 2} The appellants appeal from the Decem ber 20, 2010 “Judgment Entry Adopting Magistrate’s Decision (Revised) on Motion of Defendants George L ong and Big Hill Realty Corp., dba Big Hill GMAC Real Estate for Summary Judgment on all Claims (in both Cases) [and the] Judgment Entry Adopting Magistrate’s Decisi on (Revised) on Motion of Defendant Stoneridge Development, LTD for Summary Judgment on Plaintiffs’ Arthur’s and Clymer’s First Claim for Relief Against Stoneridge.” {¶ 3} On March 12, 2008, Carpenter filed a compla int in the common pleas court against Long, a real estate agent, and Big Hill Realty Corporation (“Big Hill”), in case No. 2008 CV 0317, asserting claims of negligent misrepresentation, pr ofessional negligence, ne gligence, and respondeat superior liability. Carpen ter asserts that she owned real prope rty at 1955 N. Old Fairfield Road in Beavercreek and that in September 1998, she entere d into an “Option and Lease Agreement” with AT&T Wireless, pursuant to which AT&T Wireless installed and operated an antenna on her property in exchange for monthly rent. In December 1998, AT&T Wireless assigned its rights and obligations to Cincinnati Bell Wireless, and in July 1999, Carpenter and Cinc innati Bell Wireless entered into an amended lease agreement that a llowed for the antenna to be relocated on the property. In 2005, Carpenter entered into an agreement with Long to sell the Old Fairfield Road property. After March 2006, Long became a dual agent, representing bot h Carpenter and Stoneridge Development Ltd. (“Stoneridge”), which purchased the property. {¶ 4} In June 2006, as part of the sale of the pr operty, Carpenter and Stoneridge executed an3 “Assumption Agreement,” which provided that Cinc innati Bell Wireless woul d continue to make rental payments to Carpenter. Carpenter also executed an “Assignment of Lease,” in which she assigned her lease rights to Stoneridge, and Stoneridge executed an “Assignment of Rent Payments,” granting Carpenter the rights to the rental paymen ts. These documents were not recorded with the county recorder’s office. Accordin g to Carpenter, Long assured her that her interest in the rental income was protected. {¶ 5} In July 2006, Long acted as agent in the sale of the Old Fairfield Road property to Arthur and Clymer. In October 2006, Cincinnati Bell Wirele ss stopped making rental payments to Carpenter and filed an interpleader action in the Greene County Court of Common Pleas in case No. 2006-CV0885. The basis of the interpleader action was that Arthur and Clymer had a sserted a claim to the rental payments, and Cincinnati Be ll Wireless asked the court to determine the proper recipient(s) of the rental income. Carpenter filed a cross-claim against Arthur and Clymer, asserting that she had “suffered damages as a result of Arthur and Clym er’s tortious interference because she is now prohibited from receiving rent payments.” Arthur and Clymer filed a third-party claim against Stoneridge, which they later dis missed. After mediati on, the matter was settled, and the trial court issued a dismissal entry with prejudice, as well as an agreed entry. {¶ 6} In her complaint herein, Carpenter argues that she “suffered damages * * * because in October of 2006, Cincinnati Bell Wire less stopped making rental payments to Plaintiff Carpenter and filed an interpleaded [sic] action.” According to Ca rpenter, Long failed to ensure that the documents pertaining to her rights to receive the rental income were recorded and failed to include her right to receive the rental income in the purchase contract between Stoneridge and Arthur and Clymer so as to provide Arthur and Clymer with notice of Carpenter’s interest.4 {¶ 7} On April 11, 2008, Arthur and Clymer filed a complaint in the Montgomery County Court of Common Pleas against Long, Big Hill, and Stoneridge, which was later transferred to Greene County as case No. 2008 CV 1173. In their first claim for relief, Arthur and Clymer asserted breach of contract and warranty against St oneridge. Arthur and Clymer claim that they were damaged “to the extent of the portion of the cell tower rentals a ssigned to Anna Carpenter through 9/1/2015, and the attorney fees incurred by the Plaintiffs in defending the Interpleader action.” In their second claim for relief, Arthur and Clymer assert that Long and Big Hill breached their agency duties by “failing to except the cell tower rentals from the written purchase agreement and failing to except the cell tower rentals from the warranty deed delivered by said de fendants to the closing agent on or about July 14, 2006.” In their third claim for relief, Arthur and Clymer assert that Long and Big Hill “br eached their duties to exercise ordinary care to protect the interests of their principals,” causing them “to incur money damages as described above.” In their fourth claim for relie f, Arthur and Clymer assert that “Defendant Long was working and acting within the scope of his employment as an employee, agent, and officer of the Defendant Big Hill Realty Corp.” and that “said Defendants acquiesced in, ratified,

and benefitted from the actions of Defendant Long.” On March 5, 2009, the magistrate consolidated Carpenter’s case with that of Arthur and Clymer. {¶ 8} Stoneridge filed a cross-claim in the Mont gomery County Court of Common Pleas that was transferred to Greene County, asserting that Stoneridge is en titled to indemnity from Long and Big Hill. {¶ 9} On September 18, 2009, Long and Big Hill filed a motion for summary judgment “on all claims.” On November 2, 2009, St oneridge filed a motion for summary judgment against Arthur and Clymer. The matter was referred to a magistrate, and on May 11, 2010, af ter a hearing, the magistrate5 granted summary judgment in favor of Long, Big Hill, and Stoneridge, denied all claims of Carpenter against Long and Big Hill, and denied all claims of Arthur and Clymer against Long, Big Hill, and Stoneridge. {¶ 10} On May 18, 2010, Carpenter, Arthur, and Cl ymer jointly filed a request captioned “Joint Findings of Fact and Conclu sions of Law,” asking that the magistrate provide specific findings

of fact and conclusions of law. {¶ 11} On June 1, 2010, the magistrate issued a revised decision. Th e revised decision incorporated, “as if fully set fort h herein, and as Findings of Fact in this Decision, the undisputed and unrebutted Statement of Fact at Section II of the Long/Big Hill Motion for Summary Judgment.” The magistrate relied heavily upon Hoover v. Transcontinental Ins. Co., Greene App. No. 2003-CA-46, 2004-Ohio-72, which addresses the us e of nonmutual defensive collatera l estoppel to prohibit a party or another person from relitigating an issue. {¶ 12} According to the magistrate’s revised decision, the undisputed facts upon which the granting of summary judgment rests were set forth in the agreed entry filed by the court on November 16, 2007, in the interpleader case, a certified copy of which is attached to Long and Big Hill’s motion for summary judgment. The decisi on further notes, “Both sets of de fendants in the Interpleader case brought by Cincinnati Bell Wirele ss, Richard D. Arthur and Chan in L. Clymer, and Anna S. Carpenter, maintained in their Answers that they were entitled to the entire lease payment from

Cincinnati Bell Wireless for the communications/a ntennae facility on the property at 1955 Old N. Fairfield Road, Beavercreek, Ohio. But, in their Ag reed Entry ordered by the Court, the Parties, by mutual agreement, litigated away that issue with prejudice. {¶ 13} “Both sets of Defendants in the Interpleader action agreed that Carpenter would receive6 $750.00 per month rental income for Cincinnati Be ll Wireless’ use of th e property, commencing December 1, 2007 and continuing each month with th e final payment ending September 1, 2015. In the same Agreed Entry, Defendants Arthur/Clymer we re ordered to receive the balance of all rental income paid pursuant to the Lease, including any and all increases and/or reimbursements, and [any] other obligations owed by Lessor to the Lessee ther eunder. In the Agreed Entry, the Parties also agreed that ‘All rental payments deposited by Plaintiff, Cincinnati Bell Wireless, to the Clerk of Courts from November 1, 2006 and thereaf ter shall be divided as follows: “1) 50% to Defendants Arthur/Clymer “2) 50% to Defendant Carpen ter.’ ” (Emphasis sic.) {¶ 14} The magistrate noted that the agreed entry provides, “ ‘All claims in this Case shall be dismissed with prejudice within 30 days from the date of this Agreement.’ On November 16, 2007 the Court filed a Dismissal Entry ordering that the Interpleader Case was dismissed with prejudice.” The decision notes that Carpente r and Arthur and Clymer “both ask the Court, implicitly, as a preliminary matter, to dete rmine that each set of Plaintiffs was entitled to receipt of the entire lease payment from Cincinnati Bell Wireless * * *. The adjudication of that preliminary issue is a predicate to the Court’s next determining that the Defendants in the two cases, Long and Big Hill in 2008 CV 0317 and 2008 CV 1173, and also Stoneridge in 2008 CV 1173, are liable to Plaintiffs for the portion of the cell tower lease payment from Cincinnati Bell Wireless that Plaintiffs voluntarily relinquished by the Agreed Entry filed on November 16, 2007 in Interpleader Case No. 2006 CV 0885. Both sets of Plaintiffs are asking this Court to adjudicate which Plaintiff was the proper recipient of the entire monthly rental payments from Cinc innati Bell Wireless, and to assign liability for the Plaintiff’s not receiving the full rental payment, to George Long and Big Hill Realty in the Case of Anna Carpenter7 and to George Long, Big Hill Realty, and Stoneridge in the Case of Arthur & Clymer. {¶ 15} “But that question of whether Anna Carpen ter or Arthur & Clymer should have been entitled to receive the entire cell tower rental paymen t was fully adjudicated in Interpleader Case No.

2006 CV 0885. {¶ 16} “The Defendants in that Case, who are the two sets of Plaintiffs in the two cases currently pending before the Court, had the opportun ity to litigate the issue in the Interpleader action brought by Cincinnati Bell Wireless. {¶ 17} “Although the two sets of Plaintiffs in the two cases pending before the Court recited in their Agreed Entry that they did not intend for the Agreement to release any claims or causes of action they may have against third persons or entities not a party to this [A]greement, the Magistrate concludes as a matter of law, th at Plaintiffs are subject to th e doctrine of non-mutual defensive collateral estoppel. That doctrine is applicable when a party agains t whom the doctrine is asserted previously had his day in court a nd had the opportunity to fully litigate the specific issue sought to be

raised in a later action. Plainti ffs herein, the Defendants in the In terpleader Case, may not escape the applicability of the law by expressing their intention to avoid the law.” {¶ 18} The magistrate noted that Long, Big Hill, and Stoneridge all pleaded the affirmative defense of estoppel in their answers to the plaintiffs’ complaints. Relying upon Hoover , 2004-Ohio72, the magistrate concluded that th e plaintiffs in the two pending cas es “had their day in court on the specific issue brought into litigation * * *. That issue was: What party was entitled to r eceive the cell tower rental payments from Ci ncinnati Bell Wireless * * *.” {¶ 19} The magistrate continued, “Although Long, Bi g Hill and Stoneridge we re not parties to 2006 CV 0885, collateral estoppel applies in this case in the absence of mutuality of parties. This8 issue of the proper recipients of the cell tower rental payments is res judicata and Plaintiffs are collaterally estopped to raise it agai n in the two pending cases. And Pl aintiffs have raised the issue for adjudication by the Court. The alleged liability of the named Defendants for the sets of Plaintiffs’ receiving less than the entire rental payment, necessarily requires an adjudication by the Court that one or the other of the Plaintiffs was entitled to the entire rental payment before liability may be attributed to any Defendant for the respective Plain tiff’s receiving less than the entire cell tower rental payment. {¶ 20} “The Magistrate concludes that the intent of the two sets of Plaintiffs in the two Cases now, expressed in the Agreed Entry, when they were Defendants in the Interpleader case, not to release claims or causes of action that they might have against third persons, does not displace the applicable law as enunciated in Hoover [, 2004-Ohio-72], and the cases relied on in that opinion.” {¶ 21} Regarding Stoneridge’s motion for summary judgment, the magistrate found “liability under the Complaint in 2008 CV 1173 is only with re spect to breach of contract and breach of warranty to the extent of the portion of the cell tower rentals assigned to Anna Carpenter thru September 1, 2015. Hence, Arthur & Clymer are tryi ng to recoup the cell rentals from Stoneridge that were paid to Anna Carpenter by virtue of the Agreed Judgment Entry in 2006 CV 0885. Arthur and Clymer relinquished their right to pursue those ve ry damages when they agreed to the precise allocation and adjudication of cell tower rental income between themselves and Anna Carpenter in the Agreed Judgment Entry. Hence, Arthur & Cl ymer are also precluded by estoppel from pursuing against Stoneridge in this Case, the same claim that was fully adjudicated in 2006 CV 0885. As far as the Cross-Claim of Stoneridge against Long and Big Hill Realty, a claim for indemnity; there being no liability on the part of Long and Bi g Hill Realty Corp., there is no liability for indemnity on the part of9 Stoneridge.” {¶ 22} Carpenter and Arthur and Clymer filed objections, and on December 20, 2010, the trial court issued a decision adopting the magistrate’s re vised decision. After setting forth the appropriate standard of review (de novo) and quoting from Hoover , 2004-Ohio-72, the tria l court overruled all objections to the magistrate’s decision, finding that “[a]ll the requirements of Hoover * * * for application to these two Cases ha ve been met, and the doctrine of non-mutual defensive collateral estoppel entitles Defendants to su mmary judgment in their fa vor against Plaintiffs.”

I. Carpenter’s appeal

A. Res Judicata {¶ 23} Carpenter asserts four assignments of error. Her first assignment of error is as follows: {¶ 24} “The trial court erred as a matter of law by granting summary judgment and misapplying the doctrines of res judicata and colla teral estoppel and thereb y preventing this action from proceeding forward.” {¶ 25} “Civ. R. 56(C) provides that summary judg ment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that c onclusion is adverse to the party against whom the motion for summary judgment is made.” Cohen v. G/C Contracting Corp., Greene App. No. 2006 CA 102, 2007-Ohio-4888, ¶ 20. {¶ 26} “When reviewing a trial court’s grant of summary judgment, an appellate court

conducts a de novo review. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. ‘De Novo10 review means that this court uses the same standard that the tria l court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.’ Brewer v. Cleveland City Schools Bd. of Edn. (1997), 122 Ohio App.3d 378, 383, citing Dupler v. Mansfield Journal Co. (1980), 64 Ohio St.2d 116, 119-120. {¶ 27} “Therefore, the trial court’s decision is not granted any deference by the reviewing appellate court.” Selective Ins. Co. of Am. v. Arrowood Indemn. Co. , Montgomery App. No. 23400, 2010-Ohio-557, ¶ 9. {¶ 28} Carpenter asserts that the trial court failed to apply “the appropriate standard” herein

and that State ex rel. Davis v. Public Emps. Retirement Bd. , 120 Ohio St.3d 386, 2008-Ohio-6254,

and not Hoover , 2004-Ohio-72, applies. We first examine Hoover , upon which the tria l court relied. Hoover was injured while riding in a vehicle driv en by his son. He sought underinsured-motorist

benefits under commercial automobile and general- liability policies issued to his closely held corporation, as compensation for cognitive amnestic disorder allegedly caused by the accident. We affirmed the trial court’s grant of summary judgment against Hoover. It had been determined, in a workers’ compensation proceeding, that Hoover did not suffer from cognitive amnestic disorder as a proximate result of the injuries he sustained in the accident, a nd we concluded that Hoover was collaterally estopped from seeking insuran ce benefits based on the same disorder. {¶ 29} Hoover argued on appeal that the trial court erred in applying collateral estoppel to him because his son, who drove the vehicle in the accide nt, and the insurance companies, from whom he sought benefits, were not parties in the prior workers’ co mpensation action. We reasoned, “This argument implicates the concept of mutuality. As Mr. Hoover properly notes, ‘[i]n Ohio, the general rule is that mutuality of parties is a requisite to collateral estoppel, or issu e preclusion. As a general11 principle, collateral estoppel opera tes only where all of the parties to the present proceedings were bound by the prior judgment. A judgment, in order to preclude either party fro m relitigating an issue, must be preclusive on both.’ Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, * * * at paragraph one of the syllabus.” Hoover , 2004-Ohio-72, ¶ 7. {¶ 30} We agreed that under the “foregoing genera l rule, Mr. Hoover’s workers’ compensation action undoubtedly would have no co llateral estoppel effect on the present litigation because the

defendants in this case were not parties to the workers’ compen sation action and were not bound by the judgment in that case. The crucial issue is whether an exception to the general rule allowed the trial court to apply colla teral estoppel absent mutu ality of parties. In Goodson [, 2 Ohio St.3d 193], the Ohio Supreme Court acknowledged that there ma y be exceptions to the general requirement of mutuality. In particular, the Goodson court cited Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, * * * as an example of its willingness to ‘relax’ the mutuality requirement ‘where justice would reasonably require it.’ Goodson , supra, at 199, * * *.” Hoover , 2004-Ohio-72, ¶ 8. {¶ 31} “In Hicks , a negligence action, the city of Cinc innati sought to argue that it had immunity from liability because the Cincinnati Gene ral Hospital was a stat e-owned facility. On review, the Ohio Supreme Court noted that the c ity had taken the opposition position in an earlier case * * *, wherein the city had argu ed, and a court had found, that it owned, operated, a nd controlled the hospital. In light of [the earlier case], the Hicks court concluded that collateral estoppel precluded the city from re-litigating its ownership of the hospital even wit hout mutuality of parties. In s upport of its decision, the Hicks court reasoned, in part: {¶ 32} “ ‘The modern view of res judicata embraces the doctrine of collateral estoppel, which basically states that if an issue of fact or law actually is litigated and determined by a valid and final12 judgment, such determination being essential to that judgment, the determination is conclusive in a subsequent action between th e parties, whether on the sa me or a different claim. A party precluded under this principle from relitigating an issue with an opposing party likewise is precluded from doing so with another person unless he lacked a full and fair opportunity to litigate that issue in the first action, or unless other circumstances justify according him an opportunity to relitigate that

issue .’ Hicks , supra, at 74 * * * (emphasis added). {¶ 33} “In Goodson , the Ohio Supreme Court rejected an argument that Hicks constituted an abandonment of the requirement of mutuality. Rather, the Goodson court read Hicks as creating a narrow exception to the mutuality rule, explaining: {¶ 34} “ ‘This court in effect was stating in Hicks that under those facts where it was shown that the party defendant clearly had his day in cour t on the specific issue brought into litigation within the later proceeding, the non-party plaintiff coul d rely upon the doctrine of collateral estoppel to preclude the re-litigation of that speci fic issue. We believe this excep tion to the principle of mutuality to be a proper one. {¶ 35} “ ‘* * * {¶ 36} “ ‘The main legal thread which runs thr oughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral est oppel, is the necessity of a fair opportunity to fully litigate and to be “heard” in the due process sense. Accordingly, an absolute due process prerequisite to the appli cation of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action. * * *.’ Goodson , supra, at 200-201, * * *. ” Hoover, 2004-Ohio-72, ¶ 9-14.13 {¶ 37} In Hoover we noted that after Goodson , courts have “expresse d some uncertainty and disagreement regarding the scope of the mutuality exception discussed above,” and we noted cases in which the mutuality exception was narrowly interpreted. Hoover at ¶ 15. We further noted that a “review of Ohio case law indicates, however, that no other appellate distri ct has interpreted the exception so narrowly. Among the other appellate dist ricts to have addressed the issue, the apparent

consensus is that Hicks and Goodson in essence eliminate the mutuality requirement if the party against whom collateral estoppel is asserted has had his day in cour t in a prior action and, in that forum, was permitted to fully and fa irly litigate the specific issue rais ed in a later proceeding. In McCrory v. Children’s Hospital (1986), 28 Ohio App.3d 49, 53, * * * a Tenth District case, thenjudge Thomas Moyer reached precisely this conclusion, relying on the language from Goodson quoted

above.” Id. 1 {¶ 38} We also noted that “in more recent cases the Ohio Supreme Court has indicated that collateral estoppel applies “ ‘when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and de termined by a court of co mpetent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party [or] in privity with a party to the prior

action. ’ “ New Winchester Gardens, Ltd. v. Franklin Cty. Bd. of Revision , 80 Ohio St.3d 36, 41 * * * (emphasis added), quoting Thompson v. Wing , 70 Ohio St.3d 176, 183.. * * * This court recently set forth a similar test for the appli cation of collate ral estoppel in Brady v. Brady , Montgomery App. No. 19006, [2002 WL 626963].. Insofar as mutuality is concerned , we stated only that the party against

1 McCrory involved a tort claim for medical malpractice filed initially in the Ohio Court of Claims against the state, the Ohio Youth Commission, and a doctor who was later voluntarily dismiss ed. The McCrorys prevailed against the state and the youth commission, and the case was refiled against the doctor in a co mmon pleas court, which partially granted the doctor’s summary judgment motion on the basis of collateral es toppel, to preclude relitigation of two iss ues relating to proximate cause, althou gh the malpractice claim itself was not barred. The Tenth District Court of Appeals found McCrory to be “an exception to a general rule requiring identity of parties and iss ues prior to the application of the defense of collateral estoppel.”14 whom collateral estoppel is sought mu st have been a party, or in privity with a party, to the prior

action. Id. at *3.” We de termined, cons istent with McCrory and other cases cited in our decision, that those authorities suggest that “mutuality is not required if the party against whom collateral estoppel is asserted fully litigated an issue in an earlier action.” Hoover , 2004-Ohio-72, ¶ 16. {¶ 39} We concluded, “albeit with some reluctance, that Ohio law allows the use of nonmutual defensive collateral estoppe l when a party against whom the doctrine is asserted previously had his day in court and was permitted to fully litigate the specific issue sought to be raised in a later

action.” Id. at ¶ 17. {¶ 40} Regarding Davis, Carpenter’s recitation of the colla teral-estoppel rule, as set forth therein, is identical to the three-part rule set forth in Hoover. Davis, 120 Ohio St.3d 386, 2008-Ohio6254, ¶ 28 , citing Goodson, Ohio St.3d at 210, 443 N.E. 2d 978 (‘an absolute due process prerequisite to the application of collateral es toppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action”). McCrory , 28 Ohio App.3d at 54. {¶ 41} Davis noted, “When an issue is not actually litigated and decided in the previous proceeding, collateral estoppel doe s not preclude the issue from being litigated in the subsequent proceeding. [Citation omitted.] Th is actual-litigation requi rement for the appli cation of collateral estoppel is explained in 1 Restatement of the Law 2d, Judgments (1982) 256-257, Section 27,

Comment e: {¶ 42} “ ‘A judgment is not conclusive in a subse quent action as to issues which might have been but were not litigated and determined in the prior action. There are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. * * * The interests15 of conserving judicial resour ces, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before. * * * {¶ 43} “ ‘It is true that it is sometimes difficult to determine whether an issue was actually litigated; even if it was not litigated, the party’s reasons for not litigating it in the prior action may be such that preclusion would be appropriate. But the policy considerations outlined above weigh strongly in favor of nonpreclusion, and it is in the in terest of predictability and simplicity for such a result to obtain uniformly.’ ” Davis, 120 Ohio St.3d 386, 2008-Ohio-6254, ¶ 30-32. {¶ 44} Carpenter also relies upon Rieger v. Montgomery Cty. , Montgomery App. No s. 23145 and 23162, 2009-Ohio-4125. In Rieger , we reversed the trial court’ s decision dismissing Rieger’s consolidated actions against Mont gomery County, in which he alle ged that he had been wrongly deprived of the ability to buy a firearm under th e federal Brady Handgun Violence Prevention Act, due to the existence of erroneous information on a “Brady Form 10 A” submitted to law-enforcement personnel, in case No. 07 CV 7374, and his action agains t the sheriff, seeking damages for a violation of his civil rights due to the erroneous “Brady Form 10 A,” in case No. 08 CV 8912. The erroneous information at issue was that [Rieger] was “subject to a CSPO [civil stalking protective order] precluding him from harassing, stalking, or threatening an ‘intimate partner.’ ” Id. at ¶ 8. {¶ 45} Regarding his case against Montgomery County, Section 925A, Title 18, U.S.Code provides that any person denied a firearm “ ‘due to the provision of erroneous information relating to the person by any State or political subdivision thereof * * * may brin g an action against the State or political subdivision responsible for providing the e rroneous information * * * for an order directing

that the erroneous inform ation be corrected[.]’16 {¶ 46} “Another federal statute, 18 U.S.C. §922(g)(8), prohibits the purchase of a firearm by any person subject to a court order that restrains the person ‘from harassing, stalking, or threatening an intimate partner of such person * * * .’ ” Id. at ¶ 6-7. The trial court noted that the magistrate had found Rieger to be Brady disqualified in an underlying civil-stalking case, which Rieger unsuccessfully appealed, failing to raise the Brady disqualification as an issue. Since any objection to the firearm disqualification could a nd should have been raised on app eal from the civil-stalking case, and since the complaints in the consolidated cases “were predicated on the allegedly erroneous Brady disqualification,” res judi cata required dismissal. Rieger, 2009-Ohio-4125, ¶ 4. {¶ 47} After reviewing the record in the civil-stalking case, we determined that “there is no finding anywhere in that case actually disqualif ying Rieger under the Brady Act from purchasing a firearm. * * * That being so, we have no basis for determining that he could have raised his alleged Brady disqualification as an issue on appeal in th e civil-stalking case. Because we are unable to conclude that Rieger could have raised a Brady argu ment as an issue in his civil-stalking appeal, we see no basis for applying the claim-pr eclusion branch of res judicata to his present complaints.” Id. at ¶ 13. {¶ 48} We further found the issue-preclusion branch of res judicata “equally inapplicable.” Rieger 2009-Ohio-4125, ¶ 14. We noted that proof of the existence of an intimate relationship between the parties was not required to obtain a CSPO in the civ il-stalking case. Id. We reasoned, “[T]he existence of an ‘intimate partnership’ or cohabitating relationship was not actually and directlyat issue in the civil-stalking case. It follows that the entry granting the victim a CSPO in the civilstalking case does not preclude Rieger from now seeking to establish that he and the victim were not intimate partners under the federal Brady Act. Therefore, res judicata does not bar him from seeking17 relief under 18 U.S.C. § 925A on the basis that mista ken information wrongly deprived him of the ability to purchase a firearm. For the same r eason, res judicata also does not preclude him from seeking money damages for the submission of the allegedly erroneous information to lawenforcement official s.” Id. at ¶ 16. {¶ 49} According to Carpenter, Rieger “is similar, but not exactly the same as this case. This court held that the prior litigation was based on a different substantive issue than the subsequent case.

The same can be said for this action. The 2006 CV 885 case was solely to determine who was going to receive the monthly cell tower payments and it had nothing to do with who was negligent and the damages therein. The present 2008 CV 317 case c oncerns Appellee’s misfeasance and the damages

therein which occurred as a result of the misfeasan ce and could not be comple tely determined until the other case was completed.” {¶ 50} Finally, we review our recent decision in Buckeye Retirement Co., L.L.C., Ltd. v. Busch, Greene App. No. 2010 CA 51, 2011-Ohio-1125. Buckeye Retirement Co., L.L.C., Ltd. (“Buckeye”) appealed from a summary judgment re ndered in favor of Busc h on the basis of res judicata. We determined that “the trial court erre d in rendering summary judg ment in Busch’s favor. Busch was not a party to the prior action, which wa s an adversary proceeding between Buckeye and a debtor in bankruptcy. Busch is also not in privity with the debtor. Even under relaxed standards of mutuality of interest, Busch is not entitled to the benefit of res judi cata, because he would not have been bound by a judgment rendered in the bankruptcy case.” Id. at ¶ 2. {¶ 51} The facts of Busch are as follows: in 2007, Buckey e sued Busch, Thomas Noland, and the law firm of Statman, Harris & Eyrich for money damages, claiming that Buckeye was the assignee

and owner of all claims of a ba nk formally known as Provident. Pr ovident made loans to Busch’s18 employer, U.S. Aeroteam, Inc. (“USAT”), betw een August and December 2003. Suhas Kakde was the president and majority sharehol der of USAT, and he signed a promissory note on behalf of USAT and also personally guaranteed USAT’s loans. Bu sch was the chief financia l officer for USAT, and he prepared, signed, and forwar ded financial information, statem ents, and certified documents to Provident in accordance with the financing agreement. {¶ 52} In July 2003, Busch and Ka kde met with Noland rega rding USAT’s potential bankruptcy. On Noland’s instructions, USAT opene d an account at another bank, the existence of which it concealed from Provident, and into whic h it deposited payments from accounts receivable.

Busch then sent Provident false financial information that did not include the accurate amount of accounts-receivable payments that USAT had received. {¶ 53} In late December, 2003, USAT filed for Chapter 11 bankruptcy. Thereafter, judgment was granted in Provident’s favor against Kakde on the promissory note that Kakde had guaranteed. The judgment was assigned to Buckeye. When Kakde filed a personal- bankruptcy action, Buckeye objected to the discharge of Kakde’s debt, and th e bankruptcy court concluded that Buckeye did not establish that the debt was nondischargeable. Bu sch testified as a witn ess during the hearing on whether Kakde’s debt to Buckeye was dischargeable. {¶ 54} In 2010, Busch filed a motion for summary judgment in Buckeye’s action against Busch, Noland, and the law firm, s upported by Kakde’s bankruptcy decision and Busch’s affidavit, in

which he averred that he was the “Busch” referred to in the Kakde decision. The trial court granted summary judgment for Busch. “T he court concluded th at although Busch was not a party to the

Kakde litigation, the relationship between Busch and Kakde was ‘close enough’ to include Busch within res judicata. The court also concluded that while the claims in the Kakde case were ‘ styled19 differently’ from the complaint against Busch, ‘they reach the same conclusion.’ * * * The court held, therefore, that Buckeye’s claims against Busch we re barred by res judicata. ” (Emphasis sic.) Id., ¶ 13. The claims against Busch were dismissed. {¶ 55} On appeal, we held, “[T]here is no evidence that Busch either actively participated in, or had control over, the prior lawsuit. More importantly, Busch is a complete stranger to the bankruptcy litigation, and would not ha ve been bound by a result in that case. Therefore, even under the most relaxed standard of mutuality of interests that has been employed, Busch was not in privity with Kakde, and is not entitled to the benefit of claim preclusion. For the same reason, Busch is not entitled to the benefit of issue pr eclusion, or collateral estoppel. {¶ 56} “* * * {¶ 57} “The correct standard is that in order for res judicata to apply, the parties must be the same or must be in pr ivity with the parties to the prior ac tion, as the term ‘privity’ has been interpreted by the Supreme Court of Ohio. Under the most recent interpretations of the meaning of privity, Busch - the party seeking to gain the benef it of res judicata - was not in privity with Kakde, the party to the prior action. Accordingly, the tria l court erred in concludi ng that Busch and Kakde are in privity.” Busch , 2011-Ohio-1125, ¶ 22, 25. {¶ 58} After thoroughly considering all of the fore going, we cannot conclude, as we did in

Hoover , and as the Tenth District did in McCrory , that this matter presents a narrow exception to the general rule requiring mutu ality of parties prior to the application of collatera l estoppel. Carpenter is not asserting a contrary position to one previously ta ken, as did Hoover and the city of Cincinnati, and the judgment in the interpleader action is accord ingly not preclusive upon her here. Carpenter seeks to litigate the damages she allegedly sustained due to Long’s and Big Hill’s alleged negligent20 misrepresentation, professi onal negligence, and negligence, and on the basis of respondeat superior liability. According to her complaint, these damages were sustained as a direct result of Long’s and Big Hill’s failure to properly protect her interest in the rental income by recording that right and including it in the purchase contract. We cannot c onclude that the issue of Long’s and Big Hill’s alleged negligence and any resulting damage is identical to what was actually litigated and directly determined by the interpleader action. To conclude otherwise w ould deny Carpenter the opportunity to be heard in a due process sense, and justi ce accordingly does not reasonably require that the mutuality rule be relaxed. {¶ 59} Regarding Davis , we conclude that the “actual litiga tion” requirement set forth therein is not satisfied, and since Long’s and Big Hill’s a lleged negligence has not b een litigated, the interests of conserving judicial resources, maintaining consistency, and avoiding harassment carry less force. {¶ 60} We agree that Rieger is similar to the matter herein in that in both instances, the prior litigation was based upon a different substantive issue. Rieger c ould not have raised a Brady argument as an issue in his civil-stalking appeal, because there was no finding in the record in that case disqualifying him from purchasing a firearm. Further, the existence of an intimate relationship was not at issue in the civil-stalking case. Herein, Carpenter could not have litigated Long’s and Big Hill’s alleged bad acts and the resu lting damages therefrom in the in terpleader action, because Long and Big Hill were not par ties to that action. That action was filed by Cincinnati Bell Wireless for a determination of the proper reci pient of the rental income, and Carpenter does not seek a redetermination of the issue adjudicated in the interpleader matter. Finally, in considering the requirement of priv ity discussed in Busch , we conclude that Long and Big Hill were not in privity with Cincinnati Bell Wireless but instead, like Busch, were complete strangers to the earlier21 interpleader action. {¶ 61} Accordingly, we agree with Carpenter that the trial court improperly applied the doctrine of res judicata. Having so found, howev er, we are nevertheless required to address the alternative grounds for summary judgment argued below. “The Supreme Court of Ohio has instructed that ‘a reviewing court is not authorized to re verse a correct judgment merely because erroneous reasons were assigned as the basis thereof.’ ” Snell v. Katafias (Mar. 19, 1999), Montgomery App. No. 17440, 1999 WL 148229, *4, quoting Joyce v. Gen. Motors Corp . (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172. Long and Big Hill having asserted th at alternative grounds exist justifying the grant of summary judgment in their favor, we will a ddress those before we proceed to Carpenter’s remaining assignments of error.

B. Alternative Grounds {¶ 62} In their motion for summary judgment, Long and Big Hill asserted that the duties “owed by a real estate agent to sellers, buyers, or as a dual agent, do not reach transactions concerning the transfer of personal property . Rental income is personal pr operty. * * * Without a duty, any negligence or ‘professional negligence’ claim against Long and Big Hill fails as a matter of law. Here, reasonable minds can only conc lude that Ohio law does not c ontemplate the ‘duty’ allegedly breached by Long and Big Hill. Thus, summary judg ment is warranted with respect to the negligence and ‘professional negligence’ claims asserted by Carpenter * * *.” {¶ 63} Long and Big Hill also asserted that Carpenter’s claim for negligent misrepresentation “fails because neither Long nor Bi g Hill had a pecuniary interest with respect to the rental income. Indeed, their ‘pecuniary interest’ would arguably only be for the sale of real property, not the personal property.” According to Long and Big Hill, the “j ustifiable reliance element fails because Carpenter22 retained an attorney before th e July 2006 sale to prepare three documents, which were intended to protect her right to receive the rental income. As such, if Carpenter claims Long never told her to secure a lawyer, there was no misrepresentation to rely upon because omissions do not give rise to a negligent misrepresentation claim.” Long and Big Hill claim that “Carpenter sought the advice of her current lawyer who prepared documents that were intended to protect Carpen ter’s interests. Thus, Carpenter did not justifiably rely on any alleged statement from Long that he would take care of everything because she sought a lawyer to help he r in spite of Long’s alle ged representation. Thus, reasonable minds can only conclude that Carpenter did not rely upon any alleged ‘misrepresentation’ from Long.” Long and Big Hill argued on the other hand, “if Carpenter received the advice from Long, as he testified that she did, the ‘false informa tion’ element fails because it is true that Carpenter needed to seek the advice of a lawyer, which she did. Thus, reasonable minds can only conclude that Carpenter cannot establish the ‘false information’ element.” Finally, Long and Big Hill asserted that Carpenter’s professional-negligence claim is barred by the statute of limitations. {¶ 64} Attached to Long and Big Hill’s motion for summary judgment are the affidavits of Long and of Cindy Jurcenko, an employee of Cinci nnati Bell Wireless. Long ’s affidavit provides: {¶ 65} “5. Ms. Carpenter wanted to retain her right to receive rental income from the telephone company. As a real estate agent, I l acked expertise in preparing and/or perfecting Ms. Carpenter’s continued right to r eceive the rental income, since my responsibilities concerned the sale of the real property, not personal property. {¶ 66} “6. I advised Ms. Carpenter to seek the advice of a lawyer in preparing and following through with the necessary requirements to protect he r continued right to receive the rental income. Prior to the July 2006 closing with respect to th e sale between Stoneridg e and Arthur/Clymer, I23 understood that Ms. Carpenter had retain ed the services of a lawyer in regard to protecting her right to

receive the rental income as I had advised her to do. * * * {¶ 67} “7. I was never asked by Ms. Carpenter or the lawyer she retained to hold up the sale to Arthur/Clymer for any reason. I had no reason to be lieve that the pertinent documents were not in place at the time of the July 2006 sale to Arthur/Clymer. I specifically told Mr. Arthur that neither he nor Clymer would have an interest in the rental income, even after the July 2006 sale was completed.” {¶ 68} In her affidavit, Jurcenko averred th at she corresponded with Joseph Moore, Carpenter’s attorney, concerning the preparation of the assumption agreement, assignment of rent payments, and assignment of lease. Attached to her affidavit are copies of her correspondence with Moore, which reveal that Moore sent her copies of the above documents on January 30, 2006, for her review, and on June 30, 2006, Jurcenko returned revised versions of the documents to Moore. Her June 30 correspondence provides: “I have also a ttached the Memorandum of Lease with the Exhibit B attached, which will be recorded.” Also attached is a July 14, 2006 e-mail from Jurcenko to Moore, which provides that the “[p]artially executed MOL and Assumption Agreement” are attached and states, “[K]indly record and return the original MOL for our files.” The email further states, “As I have mentioned to you in the past, a gentleman named Rick Arthur * * * has contacted me two times. Says he has a contract to purchase Anna’s old home and the adjacent five (5) acres. His closing date is scheduled for July 31, 2006. His contract does not mention anything about the tower. He wanted information regarding the rental income. * * * I directed him back to Stoneridge Development.” {¶ 69} We will address Long and Big Hill’s arguments in the order best suited for analysis. 1. Negligent Misrepresentation {¶ 70} Carpenter asserted in her claim for negligent misrepresentation that at the closing of the24 sale of the property to Stoneridge, the assumption agreement, assignment of lease, and assignment of rent payments were executed, but not recorded, a nd that she “stated that she had concerns about maintaining her rights to the rental payments. Defendant Long, in his capacity as her real estate agent, advised her that she had nothing to worry about.” The complaint further avers that in the course of the sale to Arthur and Clymer, “D efendant Long did not check to s ee if the lease payment documents * * * had been recorded or to get them recorded prior to the closing on the sale with Arthur and Clymer.” Finally, Carpenter’s complaint states that she “justifiably relied on the representations made by Defendant Long that her rights to the lease pa yments would be protected and the documents would be recorded. Defendant Long, in his employment as dual real es tate agent for all the various purchasers and sellers, placed himself in a position wh ere he had control as to how the sales could occur and ensuring that proper notice was given to everyone pertaining to all aspects of the sales

transactions.” {¶ 71} We note, “The elements of negligent misrepr esentation are as follows: ‘One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exer cise reasonable care or competence in obtaining or communicating the

information.’ ” Delman v. Cleveland Hts. (1989), 41 Ohio St.3d 1, 4. “A negligent misrepresentation

occurs when one ‘ supplies false information for the guidance of othe rs.’ (Emphasis sic.) [ Textron Fin. Corp. v. Nationwide Mut. Ins. Co. (1996), 115 Ohio App.3d 137, 149, 684 N.E.2d 1261.] In other words, a ‘[n]egligent misrepresentation does not lie for omissions; there must be some affirmative false statement. [123 Ohio App.3d 51, 702 N.E.2d 1246.]’ ” Id. Leal v. Holtvogt , (1998),25 123 Ohio App.3d 51, 62, 702 N.E.2d 1246. {¶ 72} According to Carpenter’s deposition testimony, when she decided to sell the property, she told Long that she wanted to retain the cell-tower income after the sale and that she and Long

“had the conversation about the ce ll tower every time [they] met.” {¶ 73} The following exchange occurred: {¶ 74} “Q. * * * Now, when you had that first c onversation about the cell phone tower in that thirty to forty-five minute meeting, what was said? {¶ 75} “A. * * * when we sat and ta lked and he talked about wh at we would get out of the property or what I wanted and he’d try to get. * * * {¶ 76} “* * * {¶ 77} “A. And I said the only thing that is going to be for certain, George, is the money for the cell tower stays with me. {¶ 78} “* * * {¶ 79} “Q. And what was his response to that? {¶ 80} “A. He said he understood that and he would take care of that for me.” {¶ 81} Carpenter testified, “George told me over and over every time we brought it up not to worry about a thing.” She identified the purchas e contract between her and Stoneridge, and the following exchange occurred as Carpenter reviewed the contract: {¶ 82} “Q. Now, you see up there in the top where it indicates paragraph four and five, it says described as follows, 1955 Old Nort h Fairfield Road containing el even point four eight acres, excepting out the two point eight one three one acres, the cell tower, and the two point zero five one

seven acres lots.26 {¶ 83} “* * * {¶ 84} “Q. Do you have any reason to dispute th at that language was not included on the contract to purchase before you signed it? {¶ 85} “A. No, I believe it was correct. {¶ 86} “Q. And that fairly and accurately represen ts the conditions you wanted to have in place with respect to the sale of the property, does it not? {¶ 87} “A. Yes.” {¶ 88} When asked if she believed that any additional steps were needed to complete the transaction, Carpenter stated, “No. [Long] just told me not to worry about a thing because he would take care of everything for me, and I believed him at the time.” The following exchange occurred: {¶ 89} “Q. * * * What was your understanding as to take care of everything? What was your understanding as to what that meant? {¶ 90} “A. That he was going to be true to his word with the cell tower rental, and when we went to the closing he told me not to worry about anything, so I didn’t worry about anything. {¶ 91} “* * * {¶ 92} “Q. Now, did George talk to you about n eeding to seek legal advice with respect to closing off any of the terms and conditions - - {¶ 93} “A. No, he didn’t.” {¶ 94} Counsel for Long presented Carpenter w ith a copy of the June 8, 2006 Assumption Agreement, and Carpenter testified that she did not remember the document. When asked if she had an understanding of the purpose of the docum ent, Carpenter responded, “No, I don’t know.” Carpenter identified her signature on the June 8, 2006 Assignment of Lease (Exhibit H) and on the27 June 8, 2006 Assignment of Re nt Payments (Exhibit I). {¶ 95} Regarding the Assignment of Rent Paym ents, the following exchange occurred. {¶ 96} When Carpenter was asked for her unders tanding of the document, she said: {¶ 97} “A. I thought it was taking care of the rental. {¶ 98} “Q. Right. And so I want to make su re I understand what you’re telling me. * * * [W]ould you agree with me that H and I are the docum ents that would have been put together to make sure that you had the rental income coming to you each month? {¶ 99} “* * * {¶ 100} “A. No. I don’t think that would take care of everything. It should have been taken care of to my - - the way I feel about it on th e contract Clymers (sic ) made with George.” {¶ 101} Long testified at deposition th at “quite a while before the closing,” he recommended to Carpenter that she have a legal document prepared to protect her interest in the rental income and that Carpenter indicated that “she would do it.” {¶ 102} Regarding Long and Big Hill’s assertion that Carpenter’s negligent-misrepresentation claim fails because they lacked a pecuniary interest in the transfer of the rental income, Carpenter identified the January 23, 2004 Exclusive Right to Sell contract between he r and Big Hill Realty, which provides that Carpenter w ill pay a 6.00 percent brokerage fee to Big Hill upon the sale of the property, and we cannot conc lude that Long and Big Hill lacked a pecuniary interest in the transaction

as a matter of law. {¶ 103} Regarding Long and Big Hill’s argument that “omissions do not give rise to a negligent misrepresentation claim,” we note that Carpenter’s complaint asserts that Long represented to her that he was taking care of everything and th at the documents protecting her rights to the rental28 income would be recorded, and Long ’s alleged failure to advise Carpenter to re tain legal counsel is not a basis of her negligen t-misrepresentation claim. {¶ 104} Regarding Long and Big Hill’ s assertion that Carpenter cannot satisfy the “false information” element of her negligent-misrepresentation claim, because Long allegedly told her to seek legal advice, and “it is true that Carpenter n eeded to seek the advice of a lawyer,” we again note that Long’s alleged failure to advise Carpenter to s eek legal advice does not form a basis of her claim. {¶ 105} Finally, Long and Big Hill assert that Carp enter cannot satisfy the justifiable-reliance element of her negligent-misrepresentation claim b ecause she retained an attorney to draft the assumption agreement, assignment of lease, and a ssignment-of-rent payments, thereby to protect her interests, allegedly belying her claim that she relie d upon Long to do so. Carpenter’s testimony is clear that Long repeatedly told her that he himself would protect her interests, and her complaint alleges that Long represented to her that “the documents w ould be recorded.” Long asserted that protecting her interest in the income was bey ond his expertise, that he advised he r to seek a lawyer, and that he “had no reason” to conclude that the documents pr otecting her interest were “not in place” at the Arthur/Clymer closing. We conclude that genuine issues of material fact exist regarding the representations made by Long to Carpenter and her reliance thereupon, and viewing the evidence most strongly in favor of Carpenter, we cannot conclude as a matter of law that her reliance upon Long’s alleged representations was not justified.

2. The Statute of Limitations {¶ 106} Long and Big Hill asserted that Carpenter’s claim for professional negligence is barred by the statute of limitations set forth in R.C. 2305.11. We disagree. R.C. 2305.11(A) provides that “an action for malpractice ot her than an action upon a medical, dental, optometric, or chiropractic29 claim * * * shall be commenced within one year after the cause of action accrued.” R.C. 2305.09(D) provides that an action for “an injury to the righ ts of the plaintiff not arising on contract nor enumerated in sections 1304.35, 2305.10 to 2305.12, a nd 2305.14 of the Revised Code” shall be brought within four years after the cause of action accrued. {¶ 107} In Thompson v. Community Mental Health Ctrs. of Warren Cty., Inc. (1994), 71 Ohio St.3d 194, the Supreme Court of Ohio noted that it “is well-established co mmon law of Ohio that malpractice is limited to the negligence of physicians and attorneys.” “In a long line of cases interpreting R.C. 2305.11, Ohio courts have consistently refused to extend the statute of limitations to include malpractice claims which are neither specifically enumerated in the terms of the statute nor included in the common-law definition of ‘malpractice.’ ” (Citations omitted.) Doe v. White (1994), 97 Ohio App.3d 585, 590. “Thus, other actions of prof essional negligence are treated as negligence and governed by the statute of limitations in e ither R.C. 2305.09 or 2305.10.” Id. Since Carpenter’s

second claim for relief does not alle ge malpractice but rather profe ssional negligence, Long and Big Hill’s reliance upon R.C. 2305.11(A) is misplaced, a nd R.C. 2305.09(D) instead applies. Because Carpenter’s professional-negligence claim is not untimely, Long and Big Hill are not entitled to summary judgment as a matter of law on the basis of the statute of limitations. 3. The Duty Element of Negligence {¶ 108} In her professional-negligence claim, Carpenter asserted that Long “had a duty as a real estate agent to conduct hims elf in a professional manner which includes protecting [her] interests * * * even after the closing which occurred on June 8, 2006, because her interest was not fully divested and required his expertis e and due care to protect her righ ts to the rental payments.” Carpenter further asserted that Long had “failed to exercise his professiona l duty and care to protect30 [her] interest by: failing to ensure that the documents pertaining to [her] rights to the rental payments had been recorded; failing to write anything in the sales contract with Arthur and Clymer and notifying them of [her] rights; and proceeding forward with the subsequent closing on the property in question without investigating wh ether the pertinent documents ha d been recorded prior to the sale/closing of July 14, 2006.” In her claim for negligence, Carpente r asserted that Long failed to exercise ordinary care. {¶ 109} In support of their assertion that Carpen ter cannot satisfy the duty element of her negligence claims, Long and Big Hill relied upon several s ections of R.C. Chapter 4735, as well as

case law addressed to the statute of frauds. R.C. 4735.52 provides: “Except to the extent the duties of a real estate agent are specifically set forth in this chapter, or are otherwise modified by agreement, the duties of a real estate agent are determined by the common law.” Long and Big Hill further

directed the court’s attention below to R.C. 4735.51(A), which provi des, “ ‘Agency’ and ‘Agency relationship’ mean a relationship in whic h a licensee represents another person in a real estate

transaction .” (Emphasis added.) R.C. 4735.01 similarly defines a real es tate broker in part as one who, for a “fee, commission, or other va luable consideration,” engages in a real estate transaction

. {¶ 110} Long and Big Hill also relied upon the following case law, which they argued

established the nature of the rent al income as personal property bey ond the scope of the real estate transaction(s): Nonamaker v. Amos (1905), 73 Ohio St. 163, 171, 76 N.E. 949 (an agreement to increase or decrease the royalty on an oil lease is not within the statute of frauds because “when the parties entered into the parol contr act, * * * they were not contracting for an interest in or concerning real estate, but for a division of personal property in proportions di fferent from those named in the written lease”); Negley v. Jeffers (1875), 28 Ohio St. 90, 100 (“Where a deed has been executed, or a31 title in any way passed, agreements between the parties as to pecuniary liabilities growing out of the transaction, but not going to take any interest in the land from the gr antee, are not affected by the statute of frauds”); Robnolte v. Kohart (1947), 81 Ohio App. 1, 76 N.E .2d 913, paragraph two of the syllabus (“When parties in interest agree to sever and remove buildings from the realty, such buildings are held and treated as personalty for the reason that title to the land is in no wise involved, nor is any

interest or estate therei n, and therefore does not involve a contr act within the statute of frauds”). Counsel for Long asked Carpenter about Long’s duty to her in deposition, and the following exchange

occurred: {¶ 111} “Q. * * * Now, you’ve made certain allegations against George, and I want to ask you what it is that you think he did to breach his duty to you? {¶ 112} “A. Well, he knows what he did. He didn’t put it in the contract. {¶ 113} “Q. He didn’t put what in the contract? {¶ 114} “A. That the rental was supposed to go to me, and he did not put it in their - - the Clymers’ [sic]contract. If they’d have signed the contract with that in th ere, we wouldn’t be here today. That’s my feelings. * * * He called my daughter afterwards, after we found out that it wasn’t in their contract and apologized to he r and told her he ma de a big mistake.” {¶ 115} We initially note, “It is well settled that the elements of an ordinary negligence suit are (1) the existence of a legal duty, (2) the defendant’s breach of that duty, and (3) injury that is the proximate cause of th e defendant’s breach. Wallace v. Ohio Dept. of Commerce , 96 Ohio St.3d 266, 2002-Ohio-4210, [¶ 22] citing Mussivand v. David (1989), 45 Ohio St.3d 314, 318. The duty element of negligence is a question of law for the court to determine. Id. {¶ 116} “The Ohio Supreme Court has explained the ‘duty’ element of a negligence claim as32 follows: {¶ 117} “ ‘Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the pa rt of the defendant to exercise due care toward the plaintiff. This court has often stated that the existence of a duty depends upon the foreseeability of harm: if a reasonably prudent person would have anticipated that an injury was likely to result from a particular act, the court could find that the duty el ement of negligence is satisfied. In addition, we have also stated that the duty element of negligence may be established by common law, by legislative enactment, or by the particular circumstances of a given case.’ ” State Farm Fire & Cas. Co. v. Century 21 Arrow Realty , Cuyahoga App. Nos. 87081, 87108, 2006-Ohio-3967, ¶ 29, quoting Wallace, 96 Ohio St.3d 266, ¶ 23 (reversing grant of summa ry judgment in favor of Century 21 and its agent on plaintiff sellers’ negligence claims and hol ding that plaintiffs es tablished the duty element of negligence as a matter of law). {¶ 118} “It is well settled that a real estate agent owes a fiduciary duty to his client. The statutory fiduciary duties owed by a real estate agent to his client * * *are set forth in R.C. 4735.62. [ 2 ] * * * This list is not exhaustive. {¶ 119} “In addition to the statutory duties that are imposed, a real estate agent must still abide by the common law fiduciary duties. Indeed, ‘ “r eal estate brokers have statutory and common law

2 R.C. 4735.62 provides: “In representing any client in an agency or subagency relationship, the licensee shall be a fiduciary o f the client and shall use the licensee’s best efforts to further the interest of the client including, but not limited to, doing all of the fol lowing: “(A) Exercising reasonable skill and care in representing the client and carrying out the responsibilities of the agency relati onship; “(B) Performing the terms of any written agency agreement; “(C) Following any lawful instructions of the client; “(D) Performing all duties specific in this chapter in a manner that is loyal to the interest of the client; “(E) Complying with all requirements of this chapter and other applicable statutes, rules, and regulations, * * * “(F) Disclosing to the client any material facts of the transaction of which the licen see is aware or should be aware in the ex ercise of reasonable skill and care and that are not confidentia l information pursuant to a current or prior agency or dual agency relationship; “(G) Advising the client to obtain expert advice relate d to material matters when necessary or appropriate; “(H) Accounting in a timely manner for all moneys and property received in which the client has or may have an interest; “(I) Keeping confidential all confidential information * * *.”33 fiduciary duties of disclosure , good faith, and loyalty.” ’ Hornung v. Fletcher , Mahoning App. No. 05MA07, 2005-Ohio-7078, ¶ 12 quoting Whaley v. Zyndorf/Serchuk, Inc. , 6th Dist. No. L01 1295, 2002-Ohio-2640, ¶ 8. ** * We also recognize that the common law duty of due care is ‘that degree of care which an ordinarily reasonable and prudent pe rson exercises, or is accustomed to exercising,

under the same or similar circumstances.’ Mussivand , 45 Ohio St.3d at 318. {¶ 120} “Furthermore, the Ohio Supreme Court has held: ‘One who acts as an agent for another becomes a fiduciary with respect to matters within the scope of the agency relation. An agent owes his principal a duty to disclose all material information which the agent learns concerning the subject matter of the agency relation and about whic h the principal is not a pprised. Furthermore, where a principal suffers loss through his agent’s failure to function in accordance with his duty, the agent becomes liable to the principal for the resulting damages.’ (Citations omitted.) Miles v. Perpetual Savings & Loan Co. (1979), 58 Ohio St.2d 93, 95.” State Farm , 2006-Ohio-3967, ¶ 32-34. {¶ 121} Finally, “a fiduciary can assume a duty that is ‘created by his undertaking, to act primarily for the benefit of another in matters connect ed with his undertaking.’ Nilavar v. Osborn (1998), 127 Ohio App.3d 1, 20, quoting Strock v. Pressnell (1988), 38 Ohio St.3d 207, 216.” State

Farm at ¶ 36. {¶ 122} Having considered the extensive fiduciary duties imposed upon real estate agents by R.C. 4735.62, as well as those imposed by common law, as set forth in State Farm , and having considered the facts herein, we ca nnot conclude as a matter of law th at Carpenter failed to establish a duty. Nonamaker , Negley and Robnolte address the application of the statute of frauds to agreements that do not involve the transfer of real property and have no application he rein. R.C. 4735.01(B) very broadly defines real estate as follows: “ ‘Real es tate’ includes leaseholds as well as any and every34 interest or estate in land situated in this state, whether corporeal or inco rporeal, whether freehold or nonfreehold, and the improvements on the land, but does not include cem etery internment rights.”

See St. Bernard Self-Storage v. Hamilton Cty. Bd. of Revision , 115 Ohio St.3d 365, 2007-Ohio-5249, ¶ 24. We cannot conclude that Carpenter’s lease hold was beyond the scope of Long’s duties as a

matter of law. {¶ 123} Further, while Jurcenko’s correspondence with Moore confirms that Carpenter engaged an attorney to address preserving her rights to the income, construing the evidence most strongly in favor of Carpenter, we find that Long specifically advise d her that he himself would take care of everything and that her interest in the rental income would be protected and recorded. Carpenter’s version of events, if accepted by the trie r of fact, would establish the assumption of a duty by Long regarding the protection of Carpenter’s interest, accompanied by the attendant duties of good faith, loyalty, and due care. If Long assumed the duty, which he disputes, his protection of Carpenter’s interest in the rental income was an inherent part of the real estate transaction(s) and within the scope of the agency relation. Accordingl y, we cannot conclude that Long and Big Hill are entitled to summary judgment on Carpenter’s negligence claims. {¶ 124} Because Long and Big Hill are not entitled to summary judgment on the alternative grounds that they asserted below, we will next a ddress Carpenter’s remainin g assignments of error, which we will consider together. They are as follows: {¶ 125} “The trial court erred as a matter of law by confirming the magistrate’s decision without conducting an independent review of the motion for summary judgment and memorandum in opposition therein and properly applying the requirements of Ohio Civil Rule 56.” {¶ 126} And35 {¶ 127} “The trial court erred as a matter of law in granting summary judgment by misapplying principles of an action of interpleader and Ohio Civil Rule 22 and thereby preventing this action from proceeding forward.” {¶ 128} And, {¶ 129} “The trial court erred as a matter of law by not applying the proper principles of mediation and thereby preventing this action from proceeding forward.” {¶ 130} Having found that Carpenter’s claims are not barred by res judicata, and having sustained Carpenter’s first assignment of error, analysis of Carpenter’s remaining assignments of error

is rendered moot. II. Arthur and Clymer’s Appeal

A. Res Judicata {¶ 131} Arthur and Clymer’s sole assign ment of error is as follows: {¶ 132} “The trial court erred in granting summary judgment to appellees on all claims and finding no dispute of fact raised in the summary judgment pleadings.” {¶ 133} As discussed above at length in the analysis of Carpenter’s appeal, since the issues of Long’s, Big Hill’s, and Stoneridge’s alleged misfeasance and Arthur’s and Clymer’s resulting damages have not been deci ded, and since, pursuant to Busch , Long, Big Hill, and Stoneridge are not in privity with Cincinnati Bell Wireless, the trial court erred in rendering summary judgment in favor of the appellees on the basis of res judicata. Ha ving so found, as in Carpenter’s appeal, we must address the alternative grounds for summary judgment. See Snell, Montgomery App. No. 17440

. Long, Big Hill, and Stoneridge asserted below th at alternative grounds exist justifying summary judgment in their favor against Arthur and Clym er. We will first addre ss the alternative grounds36 argued below by Long and Big Hill, and then we will address the altern ative grounds argued by Stoneridge. B. Long and Big Hill’s Alternative Grounds {¶ 134} Long and Big Hill asserted that they satis fied their obligations under Ohio law to Arthur and Clymer. Long and Big Hill maintain, “Arthur and Clymer’s claims fail as a matter of law because there was no obligation to ‘except’ rental income, [Arthur and Clymer] had actual notice of Carpenter’s right to the rental income and [Arthur and Clymer] did not sustain damages.” We discuss Long and Big Hill’s assertions in the order best suited for analysis. 1. Actual Knowledge {¶ 135} Long and Big Hill claimed that “Arthur is chargeable with notice and is precluded from avoiding the effect of Carpenter’s ow nership of the rental income,” relying upon Schloss v.

Brown (1920), 13 Ohio App. 294 (“It is th e settled rule in Ohio that a purchaser of land which is in the actual possession of a third party, known to him, is chargeable with notice of any equitable title of the party in possession whatever the same may prove to be”). According to Long and Big Hill, “even if a lease is unrecorded, knowledge of its existence makes such an instrument valid as against an alleged bona fide purchaser,” in reliance upon Four Howards, Ltd. v. J & F Wenz Rd. Invest., L.L.C. , 179 Ohio App.3d 399, 2008-Oh io-6174, ¶ 62, quoting Schwieterman v. Feltz (Dec. 22, 1986), 2d Dist. No. 9964, 1986 WL 15307, 3 (“ ‘even if a lease is unr ecorded, a grantee need not know its specific terms in order “to be bound thereby so long as he knows of its existence.” ’ ”) Long and Big Hill asserted that Arthur and Clymer never indicated that they would not close on the sale unless the rental income was included, and Arthur and Clymer “understood that th e phone company owned the tower and Carpenter was getting the rental income,” and the cell tower income was not an important part of37 the sale. {¶ 136} Arthur and Clymer counter that “[a]ctual know ledge of the existence of the instrument reassigning the future rentals to Anna Carp enter would be required before the unrecorded reassignment would lose its fraudulent character as to the buyers * * *.” They asserted that they were unaware of the existence of the assignment-of-rents instrument, and they maintained that the assignment of rents was executed after they signed the contract to purchase the property. They also asserted that Long told them that a release was being prepared for their signatures, which “only served to reinforce the idea that Arthur and Clymer indeed had those rights unless they followed through with the request that they release them.” {¶ 137} R.C. 5301.25 provides that unrecorded instruments “are fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of

that former deed or land contract or instrume nt.” “An unrecorded land use restriction is not enforceable against a bona fide purchaser for valu e unless the purchaser has actual knowledge of the

restriction.” Emrick v. Multicon Builders, Inc. (1991), 57 Ohio St.3d 107, at syllabus. {¶ 138} According to Arthur’s deposition testimony, in response to questions from counsel for Long, he and Clymer initially met Long at the property on May 30, 2006, and Clymer “used the word dump to characterize” the property, and she “was reluctant, and then she asked George Long about the

cell tower. And he said that he didn’t - - let’s see. I don’t know - - I don’t recall the exact - - if she asked how much it made or anything, but the - - I do know that Long said that Anna gets the rights or

the rents for now.” {¶ 139} Arthur testified that in the course of the initial visit, he did not ask Long a bout the cell tower, and that Long did not indicate that the cell tower or the rental income was included in the sale.38 Arthur testified that he did not ask Long about the legal rights to the income, and he stated that he would have closed on the propert y regardless of those rights. {¶ 140} The following exchange occurred: {¶ 141} “Q. * * * Now, is it fair to say that you being knowledgeable about real estate, I mean, you probably realized that the cell towe r is not part of the real property? {¶ 142} “A. I didn’t know that. {¶ 143} “Q. You didn’t think you were buying a cell tower, did you? {¶ 144} “A. I didn’t know that. I never bought a property with a cell tower on it. * * * {¶ 145} “* * * {¶ 146} “Q. When you told George Long that you wanted to make an offer on the property, you didn’t say: I want you to include the cell tower or its proceeds in the offer to purchase? {¶ 147} “A. Correct.” {¶ 148} The purchase contract provides, “The prope rty shall include th e land, all pertinent rights, privileges and easements, all buildings, improvements and fixtures, including but not limited to such of the following as are now on the property: All electrical, heating, plumbing and bathroom fixtures, all window and door shades, blinds, aw nings and screenings, storm windows and doors, television antenna, curtain rods, ga rage door opener and control, all landscaping,” followed by a blank line, and Arthur testified that he did not ask Long to insert anythi ng that was not already included on

the contract. The contract furt her provides, “6. POSSESSION. Re ntals, interest on any assumed mortgages, water and other utility bills, and any current operating expenses shall be prorated as of the date of closing.” {¶ 149} Arthur testified that Long never told him that the cell-tower income was included in39 the purchase, and Arthur stated that he never told Long that it needed to be included as part of the sale. The following exchange occurred: {¶ 150} “Q. Between the first time you went to the property and the date of closing, did you ever discuss at all the cell tower with George Long? {¶ 151} “A. He contacted me twice that there were papers being drawn up that they wanted me to sign to release my rights to the cell tower income. {¶ 152} “* * * {¶ 153} “Q. And what was your response? {¶ 154} “* * * {¶ 155} “A. I felt that was odd, that I would have to sign a release to something that maybe I

felt that I deserved. * * * {¶ 156} “ * * * {¶ 157} “Q. You thought: Well, if I’m releasing someth ing, then I must have had a right to it to begin with? {¶ 158} “A. Yes.” {¶ 159} The following exchange occurred regarding the closing of the sale: {¶ 160} “Q. Did you discuss at all, with anyone at the closing, the cell tower or the cell tower proceeds? {¶ 161} “A. Some kind of conversati on about the release. I may have asked did they bring a release to sign or something, I don’t know. * * * It seems that it was that [title agent] Lynn Compton said that there was no release on file, * * * {¶ 162} “She had looked for that and there was no r ecord of that recorded. And there was no40 release ever brought to he r office for me to sign. {¶ 163} “Q. So you asked this question of Lynn at the closing? {¶ 164} “* * * {¶ 165} “A. Yes. {¶ 166} “Q. For you to sign? {¶ 167} “A. Or I stated that they never gave me that release to sign, they never came forward

with it. {¶ 168} “Q. Well, if they had given you a rel ease to sign, what would you have done? {¶ 169} “A. I don’t think Chanin would have wanted me to sign it. {¶ 170} “Q. You don’t think so? {¶ 171} “A. She told me that she didn’t like the property, you know, the work that it needed, and that if it didn’t - - don’t get any income from that cell tower, it wouldn’t be worth it. {¶ 172} “Q. So you weren’t going to do it, y ou weren’t going to buy the property? {¶ 173} “A. That was her desire. {¶ 174} “Q. What were you going to do? That’s my question. {¶ 175} “A. If they gave me the release? {¶ 176} “Q. Yes. {¶ 177} “A. Take it to a lawyer. {¶ 178} “Q. Would you have gone through with the sale or you would have just gone through with the sale and then argued - - {¶ 179} “A. I would have reevaluated it. I had no decision on that at that time. {¶ 180} “ * * *41 {¶ 181} “Q. One thing we do know is that you never to ld anybody that: If I have to sign that release, I’m not going through with the sale? {¶ 182} “A. Correct.” {¶ 183} Arthur testified that he “tried asking Ci ndy Jurcenco, at Cincinnati Bell, anything about the contract, and she wouldn’t divulge anything , other than that Anna Carpenter has an income

and wouldn’t tell me the amount or an ything.” Arthur stated that at the time of the closing he knew that Cincinnati Bell Wireless owned the cell tower and that Carpenter was receiving the rental

income. {¶ 184} Long and Big Hill directed the trial court’s attention to the following exchange: {¶ 185} “Q. And once you found that out and you had concerns about whether you were entitled to those rental payments instead, did you ever ask to postpone the closing on the property? {¶ 186} “A. No, I didn’t.” {¶ 187} Arthur’s affidavit, attached to Arthur and Clymer’s memorandum in opposition to Long and Big Hill’s motion for summary judgment, provides, “Mr. Long * * * pro ceeded to prepare a purchase agreement offer for Chanin and I to sign, which made no exclusion of our right as purchasers to receive the rentals after we owned the property, but instead expressly provided for a pro-ration of rentals to the date of closing.” Arthur averred that Long did not tell him and Clymer that Carpenter

would continue to receive the rental income after she sold the property to Stoneridge, and he did not advise them of “the existence of any instruments reserving the rentals or assigning the rentals to Anna Carpenter.” Arthur avers that after the countero ffer was accepted, Long advised Arthur that a release regarding the cell-tower income was being prepared for his signature. According to Arthur’s affidavit, when “no release was presented at the clos ing, I believed that Stoneridge had realized that it42 was obligated to honor the terms of the purchase ag reement and because the d eed did not exclude the cell tower land rentals or otherwise reserve those to Anna Carpenter, I accepted the deed from Stoneridge.” Arthur averred that his mortgage broker, “Deborah Eick, and our title agent, Lynn Thompson, both advised us that they knew of no right that Stoneridge had which would entitle Stoneridge to change the essential terms of our purchase agreement after it had been offered and accepted. They further advised that the Greene C ounty Recorder’s Office had no recorded documents reserving or assigning the cell-to wer land rentals to Anna Carpente r, and cautioned us about signing any such release document.” Finally, Arthur avers that at “the time of our closing on July 14, 2006, I had actual knowledge that Stoneridge had for a time attempted to change the terms of our purchase agreement, but I had no actual knowledge of the ex istence of an Assignment instrument, whereby Stoneridge had previously assigned th e rentals back to Anna Carpenter.” {¶ 188} In her deposition, Clymer’s testimony was consis tent with Arthur’s that Long told her, when she inquired about the cell tower, that “he ju st said Anna had those rights for now.” When

asked what she would have done if she learned that she and Arthur were not entitled to the cell-tower income, Clymer replied, “Probably wouldn’t have ha d my name on the deed because I wouldn’t have gone through with it probably.” Clymer stated that she believed the rights to the cell-tower income passed from Carpenter to Stoneridge to her and Arthur, and “it was more like it ran with the land from what I was investigating, the landowne r would be in rights of that.” Clymer further averred, in “the counter offer by Stoneridge signed June 6 th , 2006, there was no proposed change to the purchase agreement regarding the cell tower land rentals, but our purchase of the property was made contingent on Stoneridge’s purchase of the property from Anna Ca rpenter as Stoneridge had not yet closed on its purchase from Anna Carpenter.”43 {¶ 189} In his deposition, Long testified that Arthur and Clymer “were made aware that there was a document being prepared that would divide the proceeds from the cell tower, that Mrs. Carpenter would retain the income from the cell tower and that the cell tower would remain standing. And he would receive no proceeds from that.” {¶ 190} The following exchange then occurred: {¶ 191} “Q. And who made them aware? {¶ 192} “A. I made that statement on four occasions. {¶ 193} “Q. That there would be a writing; is that what you’re saying? {¶ 194} “A. That - - yes, something would be fo rthcoming that would clearly define the relationship to the cell tower. {¶ 195} “Q. Was that ever presented to Arthur and Clymer? {¶ 196} “A. Not to my knowledge.” {¶ 197} Long testified that he did not attend the closing of the sale between Stoneridge and Arthur and Clymer, nor did a repr esentative of his office. According to Long, “the closing was rushed” at Arthur’s request to preserve an inte rest rate on his loan, a nd it “happened after hours.” {¶ 198} Having reviewed the above evidence, we c onclude that a genuine issue of material fact exists regarding whether Art hur and Clymer had actual knowledge that the rights to the rental income were to remain with Carpenter. The cont ract provided for the prora tion of rentals, and the cell-tower income was the only rental income from the property. While Long avers that he specifically told Arthur that he and Clymer were not entitled to the rental income, Arthur’s testimony is consistent with Clymer’s that Long stated that Carpenter was receiving the income “for now,” at a time when she still owned the property. While Arthur and Clymer were advised that a release was44 being prepared for their signature, suggesting to them that such a document was required to sever the interest in the income from the property, one was not executed prior to or at closing. Arthur and Clymer proceeded to closing, and they argue that in the absence of a release, they believed that the right to the income was theirs. Long did not aver that he made Arthur and Clymer aware of the assignment of future rents between Stoneridge and Carpenter. Clym er testified that she would not have gone through with th e sale in the absence of the income, and Long’s testimony is inconsistent, in

that he stated that he would ha ve closed regardless of the income , and later that he would have reevaluated the transaction if presented with a release. Because a genuine issue of material fact exists regarding Arthur’s and Clymer’s actual knowledge, Long and Big Hill are not entitled to summary judgment on that basis. {¶ 199} Lastly, Long and Big Hill’s reliance below upon Schloss v. Brown , 13 Ohio App. 294, is misplaced. Schloss had been a te nant on property that was later sol d. After the sa le, Schloss filed an action for specific performance to enforce his rights as a tenant. Schloss involved the rights of the tenant in possession, and not, as here, the ri ghts of the purported successor lessor. 2. Duty {¶ 200} In their complaint, Arthur and Clymer asserted that Long and Big Hill had “br eached their agency duties to [them] as dual agent, failing to except the cell tower rentals from the written purchase agreement and failing to except the cell tower rentals from the warranty deed delivered by said defendants to the closing agent on or about Ju ly 14, 2006.” Additionally, they asserted that Long and Big Hill breached their duties to exercise ordinary care to protect their interests. {¶ 201} In their motion for summary judgment, Long and Big Hill asserted, again, that the contract to purchase real estate “concerned the tr ansfer of real property, not personal property.”45 According to Long and Big Hill, “Arthur/Clymer has no evidence as to how Long br eached his duty to Arthur/Clymer regarding ‘excepting’ the cell tower proceeds or that Long failed to protect Arthur/Clymer’s interests.” Long and Big Hill relied upon the followi ng language in the contract between Stoneridge and Arthur and Clymer: “Seller shall furnish a transferable and recordable general warranty deed conveying to purchaser * * * a marketable title to the Property * * * free and clear of all liens, rights to and encumbrances whatsoever, except * * * (d) rights of tenants in possession which would not prevent Purchaser from usin g the Property for the following purpose: residential.” (Emphasis added.) Finally, Long and Big Hill ar gued, “[I]t is undisputed that the contract to purchase did not contemplate the transfer of monthly rental income to Arthur/Clymer. Therefore, reasonable minds can only conclude that neither Long nor Big Hill had an obligation to specifically ‘except’ the rental income from the July 2006 sale.” {¶ 202} Long and Big Hill directed the trial court’s attention to the following exchange: {¶ 203} “Q. The allegations you made against George Long is that he breached his duty to you to except the cell tower proceeds from the purchas e contract. How did he breach his duty to you, his agency duty to you? {¶ 204} “A. Gosh, I wouldn’t know how to answer that question. {¶ 205} “Q. You saw the purchase contract before he submitted it to the seller, right? {¶ 206} “A. Yes. {¶ 207} “* * * {¶ 208} “Q. All right. Are you saying that he should have included on there that the cell tower proceeds were not included in your purchase? {¶ 209} “A. Everyone’s opinion to me was that if it was on that contract, then the rights of46 that income from the cell tower goes with the real es tate purchase. And so if that’s the law, and, in view of that, then I would have to answer that, yes, he shoul d have written that.” {¶ 210} In their memorandum in opposition to L ong and Big Hill’s motion for summary judgment, Arthur and Clymer relie d upon section 6 of the contract to purchase real estate between them and Stoneridge, which provides in part for th e proration of “rentals.” Arthur and Clymer asserted that Long and Big Hill “may have in error believed that their status as dual agents nullified any affirmative duty to speak to the buyers. Even was [sic]) that the case, the retention of the rental prorations clause as part of the purchase agreement prepared by George Long went well beyond mere silence for which the realtors are clearly answerab le.” Attached to their memorandum in opposition is the affidavit of Lynne Compton, the owner of Su mmit Land Title, confirming Ar thur’s testimony that she “cautioned” Arthur against releasing his rights to the income, because there was no interest in the

income of record. {¶ 211} We initially conclude, for the reasons discussed in Carpenter’s appeal, that the rental income is not outside the scope of the real estate transaction. The r ecord reflects that Arthur, Clymer, and Stoneridge signed an agency disclosure statement, thereby consenting to Long’s dual representation of the interests of the buyers and seller in the trans action. As noted in Carpenter’s appeal, as a real estate agent, Long owed extensiv e fiduciary duties to Arthur and Clymer. Construing the evidence most strongly in favor of Arthur a nd Clymer, we note that Long advised them that Carpenter was receiving the rental income “for now,” at a time when Carpenter still owned the property; the closing of the sale between Stoneri dge and Arthur and Clymer was contingent upon the closing of the sale between Carpen ter and Stoneridge. Long advised Arthur that a release of their rights to the rental income was being prepared for his and Clymer’s signatures, thereby implying to47 them that the rights to the rental income, in the absence of such a release, would belong to them as successor lessors. The contract provided that Cincinnati Bell Wireless had a right to maintain its cell tower on the property, as a tenant in possession, but the contract also ex pressly provided for the proration of rentals at closing. Because the contr act expressly provided for the proration of rentals, and because Arthur and Clymer were unaware of the assignment of rents, we cannot say as a matter of law that Long did not breach his duties to Arthur and Clymer when he failed to affirmatively exclude

the rental income from the transaction. Accordin gly, Long and Big Hill are not entitled to summary judgment on this alternative basis. 3. Estoppel {¶ 212} Long and Big Hill argued, without elaborati on, that the “cell tower income was not an important part of the sale ,” and that “before Arthur signed th e contract, he had no problems with how it was written up. Accordingly, estoppel principles preclude Arthur/Clymer’s objections to how the sale occurred.” Long and Big Hill seem to argue th at Arthur and Clymer, in accepting the contract as written, without a provision specifically granting them an interest in the cell-tower income, waived the right to challenge the contract. Since the purch ase contract provided for the proration of rental income, we find that this argument lacks merit. 4. Damages {¶ 213} In their complaint, Arthur and Clymer asserted that they “were damaged to the extent of the cell tower rentals assigned to Arthur and Clymer under the term s of the Interpleader settlement and to the extent of the attorney fees and costs incurred by Arthur and Clymer in defending that

action.” {¶ 214} In their motion for summary judgment, Long and Big Hill asserted below that it “is48 undisputed that had Long and Big Hill done what Arthur/Clymer allege th ey were required to do, Arthur/Clymer would be entitled to nothing, i.e., Arthur/Clymer is in a better position because of the alleged breach than had it not occurred.” This argu ment is flawed. Clyme r’s testimony establishes that she would have refused to sign a release had one been presented to her: “I don’t feel it would have been a good investment. We wouldn’t have gotten anything in return, and I have the noise of the cell tower, the traffic in and out on the cell tower.” {¶ 215} Having determined that Long and Big Hill are not entitled to summary judgment on Arthur and Clymer’s claims, we ca nnot conclude that Arthur and Clymer did not sustain damages as a result of Long’s conduct. There is a genuine issue as to whether Arthur and Clymer were damaged to the full extent of the rental income. Accordingly, Long and Big Hill are not entitled to summary judgment on this basis. {¶ 216} Having found that Arthur and Clymer’s cl aims are not barred by res judicata, and having concluded that Long and Big Hill are not entitled to summary judgment on any alternative grounds, we hold that it was error for the court to grant summary judgment against Arthur and Clymer. C. Stoneridge’s Alternative Grounds {¶ 217} Against Stoneridge, Arthur and Clymer asse rted in their complaint that Stoneridge contracted with Carpenter to allow her to retain the cell-tower rental income but Stoneridge failed to except that right to receive the income from the purchase agreement or from the warranty deed given to Arthur and Clymer. {¶ 218} In their motion for summary judgment, Stoneri dge asserted that it had no right to sell or transfer the cell-tower rental income, which belonged to Carpenter. According to Stoneridge,49 allegations that Stoneridge promised the cell-tower income to Arthur and Clymer, or misrepresented terms relating to the income, or fraudulently induced Arthur and Clymer to agree to the contract are absent from their complaint. Stoneridge asserted that it “complied with all terms negotiated in the Contract and did not breach its agreement” with Arthur and Clymer, and that because Arthur and Clymer agreed to the terms of the contract, and were silent after its execution, they are “equitably estopped from now taking a contrary position to the prejudice of Stoneridg e.” Stoneridge also asserted that it is entitled to judg ment as a matter of law because Ar thur and Clymer had actual notice of the cell-tower lease, such that the omission of the cell-tower lease from the deed is irrelevant. Stoneridge relied in part upon Schloss v. Brown, 13 Ohio App. 294. Stoneridge asserted that Arthur and Clymer suffered no damages. Fi nally, Stoneridge asserted that Ca rpenter owned the rights to the rental income, and Stoneridge “cannot contract for, give away, or ‘except’ anything it does not own.” {¶ 219} In their memorandum opposing Stoneridge’s motion for summary judgment, Arthur and Clymer asserted that the contract expressly provi ded for the proration of re ntals, and they asserted that they, and not Stoneridge, were entitled to the protection of equitable estoppel.

1. Breach of Contract {¶ 220} “Generally, a plaintiff must present evidence on several elements to successfully prosecute a breach of contract claim. Those elemen ts include the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.” Doner v. Snapp (1994), 98 Ohio App.3d 597, 600, 649 N.E.2d 42. {¶ 221} “ ‘When the language of a written agreement is clear, a court may l ook no further than the writing itself to find the intent of the parties.’ ” Outback/Buckeye-II Ltd. Partnership v. Lofino

Grandchildren’s Trust , Greene App. Nos. 06-CA-2 and 06-CA-44, 2007-Ohio-577, ¶ 53.50 {¶ 222} Stoneridge’s position is that it did not transfer the rental income to Arthur and Clymer by means of the contract. The contract to purch ase expressly provides for the proration of rental income, and it does not expressly ex clude the cell tower rental income. Construing the evidence most strongly in favor of Arthur and Clymer, we cannot conclude as a ma tter of law that Stoneridge is not in breach of its contract with Arthur and Clymer such that Arthur and Clymer suffered no damage. 2. Breach of Warranty {¶ 223} According to Stoneridge, Arthur and Clyme r’s breach of warranty claim is barred by Arthur and Clymer’s actual knowledg e that Carpenter retained the ri ghts to the rental income, in reliance upon Schloss v. Brown, 13 Ohio App.294, and Stoneridge further a sserts that constructive notice can bind a purchaser to an unr ecorded encumbrance, in reliance upon Four Howards, Ltd. v. J & F Wenz Road Invest., L.L.C ., 179 Ohio App.3d 399, 2008-Ohio-6174. {¶ 224} The survivorship deed attached to Arthur and Clymer’s complaint covenants the property at issue “subject to taxes and assessments which are now or may he reafter become liens on said premises and except conditions and restrictions and easements, if any, contained in former deeds of record for said premises, subject to all of which this c onveyance is made.” {¶ 225} As determined in Carpenter’s appeal, the contract to purchase did not except the rental income but rather expressly provide d for the proration of rental inco me. When Long did not provide the release at closing, according to Arthur’s affida vit, Arthur “believed that Stoneridge had realized that it was obligated to honor the terms of the purchase agreement and b ecause the deed did not exclude the cell tower land rentals or otherwise reserve those to [Carpenter], I accepted the deed from Stoneridge.” Arthur and Clymer were told by the title agent that there were no interests of record encumbering the property. Arthur and Clymer were unaware of the existence of the unrecorded51 assignment instruments. Stoneri dge had no contact with Arthur a nd Clymer in the course of the transaction. Accordingly, we cannot conclude that Arthur and Clymer had actual knowledge of Carpenter’s purported interest in the rental income, and Stoneridge is not entitled to summary judgment on this basis. 3. Estoppel {¶ 226} According to Stoneridge, by signing the contract, Arthur and Clymer represented that they approved of and accepted its terms, despite the lack of terms related specifically to cell-tower income; they misled Stoneridge by rushing to complete the sale with the intent to later initiate litigation to attempt to wrongly gain the rental income; and Stoneridge relied upon Arthur and Clymer’s acceptance of the contract terms by completing the transaction and transferring the property to Arthur and Clymer to their detriment. {¶ 227} “Equitable estoppel precludes a party from asse rting certain facts where the party, by his conduct, has induced another to change his pos ition in good-faith reliance upon that conduct. * * * The purpose of equitable estoppel is to prevent actua l or constructive fraud and to promote the ends of justice. * * * {¶ 228} “ ‘A prima facie case for equitable estoppel requires a plaintiff to prove four elements: (1) that the defendant made a factual misrepresentation; (2) that it is misleading; (3) [that it induced]

actual reliance which is reasonable and in good faith; and (4) [that th e reliance caused] detriment to the relying party.’ ” Hutchinson v. Wenzke (1999), 131 Ohio App.3d 613, 178, 723 N.E.2d 176, quoting Doe v. Blue Cross/Blue Shield of Ohio (1992), 79 Ohio App.3d 369, 379, 607 N.E.2d 492. {¶ 229} To establish that Arthur and Clymer “mis led all defendants,” Stoneridge directed the trial court’s attention to the following testimony by Arthur:52 {¶ 230} “Q. * * * Have you ever had any communi cations with Bob Abernathy about this property? {¶ 231} “A. No. {¶ 232} “Q. Do you know if Chanin has? {¶ 233} “A. Yes, I know she has not. He stat ed that he did to Cindy Jurcenco. {¶ 234} “* * * {¶ 235} “Q. Have you ever had any conversations with anybody associated with Stoneridge Development? {¶ 236} “A. Correct. {¶ 237} “Q. The answer is that you have not had any communications? {¶ 238} “A. That I recall. {¶ 239} “ * * * {¶ 240} “Q. All right. You mentioned that you had some conversations with a woman with Cincinnati Bell. Do you recall that testimony? {¶ 241} “A. Yes. {¶ 242} “Q. When did that conversation take place? {¶ 243} “A. I can only - - it’s vague recollections of the days following the purchase contract and trying to find out someth ing about cell tower leases. {¶ 244} “Q. So this conversation with - - what was the name of this woman? {¶ 245} “A. Cindy Jurcenco. {¶ 246} “Q. So this conversation with Cindy Jurcenco would have been prior to the closing of the property?53 {¶ 247} “A. Yes, it was. {¶ 248} “Q. And at that time, you knew that those cell phone towers were owned by Cincinnati Bell, correct? {¶ 249} “A. Yes. {¶ 250} “Q. So you had no understandi ng or belief that Anna Carpenter actually owned those

towers? {¶ 251} “A. Oh, correct. I didn’t know that. I knew she owned the property that it was on. {¶ 252} “* * * {¶ 253} “Q. Well, when you called and talked to the representative from Cincinnati Bell, it was your understanding at that time that Cincinnati Bell owned those towers - - {¶ 254} “A. Yes. {¶ 255} “Q. - - and that Anna Carpenter was getting the rental payments? {¶ 256} “A. Yes, yes. {¶ 257} “Q. So you were aware at that time that Anna Carpenter was getting the rental payments from Cincinnati Bell? {¶ 258} “A. Yes. {¶ 259} “Q. And once you found that out and you had concerns about whether you were entitled to those rental payments instead, did you ever ask to postpone the closing on the property? {¶ 260} “A. No, I didn’t. {¶ 261} “Q. And that was a decision that you made? {¶ 262} “A. Yes.” {¶ 263} Even if we were to concl ude that Stoneridge, who had no contact with Arthur and54 Clymer at any time, established that Arthur and Clymer had made a factual misrepresentation that was misleading when it accepted Stoneridge’s counteroffer, Stoneridge is not entitled to the protection of equitable estoppel because it cannot establish that it reasonably relied, in good faith, on Arthur and Clymer’s alleged representation that the rental income was not a mate rial part of the transaction. The following exchange occurred in the deposition of Robert Abernathy, agent for Stoneridge: {¶ 264} “Q. * * * Now, in your transaction with Anna Carpenter, you have committed with

her that she could retain cell towe r rentals upon your purchase from her of her land including this five acres; is that correct? {¶ 265} “A. Yes, sir. {¶ 266} “Q. And do I take it it was your intention that the sale agreement with Mr. Arthur and Mrs. Clymer would exempt out, except from the transaction, those rentals? {¶ 267} “A. Yes, sir. {¶ 268} “Q. Could you explain why * * * the cont ract to purchase fails to make that exemption, that exception fo r the cell tower rentals? {¶ 269} “A. No, sir.” {¶ 270} Abernathy then testified that Long assure d him that he had informed Arthur and Clymer that Carpenter retained the right to the income. The following exchange occurred: {¶ 271} “Q. Did [Long] provide you any documen tation, any writings that verified - -

documented that fact? {¶ 272} “A. No, sir. {¶ 273} “ * * * {¶ 274} “Q. If that was a concern prior to and at the time of signing the contract to purchase,55 why is it then that you didn’t look specifically to see in the contract with Arthur and Clymer that the

rentals had been carved out? {¶ 275} “* * * {¶ 276} “A. In hindsight that probably should ha ve been done, but I find it impossible to believe that somebody can’t see a ce ll tower and know they didn’t sign anything or have anything and they were notified that they were n’t going to get the cell tower income, that anybody would even try to do something so despicable.” {¶ 277} The contract to purchase provides for the pr oration of rental in come, and Abernathy, in his employment with Stoneridge, undoubtedly has extensive experience with real estate contracts and the provisions they contain. Ab ernathy intended that the purchase contract exclude the rental

income from the transaction. He included in the contract an addendum that conditioned the Arthur and Clymer closing on the closing of the Carpente r and Stoneridge transaction, but he did not except the rental income. Abernathy executed the assignment-of-rent payments with Carpenter but did not provide the document to Arthur and Clymer prior to or at closing, and the document was not recorded. Abernathy had no documentation that Long adequately protected Carpenter’s interest, such as a release of their rights to the inco me. Abernathy admits that he shoul d have verified that the rentals were excepted from the contract. Accordingly, St oneridge cannot establish that it reasonably and in good faith proceeded to closing in reliance upon an y alleged representation by Arthur and Clymer that, by accepting the contract terms, they were not entitled to the rental income. Even if we believed that Arthur and Clymer knew that they were not entitled to the rental income, the existence of the rental provision in the contract renders Stoneridge’s reliance upon the alleged misrepresentation

unreasonable.56 {¶ 278} Having determined that Arthur and Clyme r’s claims against St oneridge are not barred by the doctrine of res judicata, and having found th at Stoneridge is not entitled to summary judgment on the alternative bases asserted by it, we hold that it was error for the trial court to grant summary judgment in favor of Stoneridge. In so holding , we note that the trial court’s decision granting summary judgment in favor of Long and Big Hill on Stoneridge’s cross-claim for indemnity against Long and Big Hill is also error. {¶ 279} Having found error in the trial court’s gran t of summary judgment to all defendants, the trial court’s judgment is reversed, and the cause is remanded for further proceedings. Judgment reversed

and cause remanded.

. . . . . . . . . . H ALL , J., concurs.

F AIN , J., concurs separately.

F AIN , J., concurring: {¶ 280} I concur fully in both the judgment and in Judge Donovan’s opinion for this court. I write separately mere ly to clarify my reason for concluding that collateral estoppe l does not apply to bar the claims of the plainti ffs in these causes of action. {¶ 283} The application of collate ral estoppel requires that the issue litigated in a prior cause of action be the same as the issue litigated in th e later cause of action. In this case, those issues

are not the same. {¶ 284} Arthur and Clymer thought that they we re obtaining the rental income from the Cincinnati Bell Wireless tower as part of the transaction negotiated between them and Carpenter.57 Conversely, Carpenter thought that she was retaining that rental inco me. In each case, the issue of whether Carpenter, or Arthur and Clymer, would emerge from the transaction with the rental income is different from the issue of whether Carpenter, or Arthur and Clymer, failed to emerge from the

transaction with the rental income as a result of th e negligence of some or a ll of the defendants. In other words, the essence of the cause of action of each plaintiff against each defendant is: “I did not come away from the transaction with the rental income, and the reason I didn’t is due to your negligence.” {¶ 285} The issue in each plaintiff’s cause of acti on is not the same as the issue between the two plaintiffs: which plaintiff – Carpenter or Arthur and Clymer – is entitled to the rental income. In fact, as to each plaintiff, that plaintiff’s failure to have obtained all the rental income in the transaction between them, far from precluding their cause of action against their respective defendants, is an

essential element of that cause of action. Carpenter, for exampl e, would have no cause of action against the defendants in her lawsuit if she had, in fact, retained the rights to the rental income in her transaction with Arthur and Clym er. Conversely, Arthur and Clym er would have no cause of action against the defendants in their lawsuit if they had, in fact, obtained the rights to the rental income in their transaction with Carpenter. {¶ 286} The issue in each plaintiff’s cause of action is different from the issue that was settled between the two plaintiffs. Therefore, co llateral estoppel does not ba r their claims against their respective defendants.

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