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March 20, 2026 Get Citation Alerts Download PDF Add Note

Town v. Sidoti

Ohio Court of Appeals

• Citations: 2026 Ohio 963
• Docket Number: E-25-041

• Judges: Mayle

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.9K)

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Syllabus

Per Mayle, J., appellant cannot show that negligent misrepresentation applies to his claim because he was not involved in a business transaction. Assuming that real estate sale was a business transaction, trial court did not abuse its discretion by adopting magistrate's finding that appellant failed to prove justifiable reliance on statement appellee made in real estate listing document.

Combined Opinion

[Cite as Town v. Sidoti, 2026-Ohio-963.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY

David H. Town Court of Appeals No. E-25-041

Appellant
Trial Court No. CVI 2400430
v.

Tarina Sidoti DECISION AND JUDGMENT

Appellee Decided: March 20, 2026

---

Tarina Sidoti, for appellee.

Daniel L. McGookey, for appellant

---

MAYLE, J.

{¶ 1} In this negligent misrepresentation action, appellant, David Town, appeals

the August 6, 2025 judgment of the Sandusky Municipal Court overruling his objections

to the April 24, 2025 magistrate’s decision that granted judgment in favor of appellee,

Tarina Sidoti. For the following reasons, we affirm.
I. Background and Facts

{¶ 2} This case arose from Town’s purchase of a condominium on Westwind

Drive in Sandusky, Ohio. According to his complaint, when Town purchased his home,

one of the “primary features” of the home in the “MLS listing” was the home having

“heated floors in the Master Suite.” Based on that representation, Town expected heated

floors throughout the master suite, i.e., in the entire master bedroom and master bathroom

area. However, upon moving in, he discovered that the floors were heated only in the

bathroom, not in the whole suite, as advertised in the listing. A flooring contractor told

him that it would cost $4,130 to install heated floors in the master bedroom. His real

estate agent contacted the listing agent—Sidoti—who “said that she made a mistake, but

that she wouldn’t pay for [his] contractor to install the heated floors.”

{¶ 3} Sidoti, who has appeared pro se throughout these proceedings, filed a

response to Town’s complaint in which she “den[ied] all allegations of wrongdoing,”

requested that the trial court dismiss the case, and provided several reasons why she

believed that she was not liable to Town. Specifically, she claimed that the comment in

the MLS listing that “‘[t]he master suite will WOW you with its top-of-the-line finishes

including heated floors’” was a marketing statement meant to describe the floors of the

master bathroom, which was part of the master suite. Additionally, both the MLS listing

and the Zillow listing for the home included language indicating that the information was

not warranted. Next, because Town bought the home as-is and waived inspections, he

bought it without guarantee of any specific features or finishes, and there was no mention

of heated floors in the parties’ purchase contract. Third, Town did not ask about the

2.
extent or location of the heated floors during the purchase process or tell anyone that this

was a deciding factor in his purchase decision. Town was also represented by his own

agent, who had a fiduciary duty to him and had access to the property to verify the

features. Fourth, Sidoti denied any intent to deceive or misrepresent the features of the

property. Finally, Sidoti pointed out that she was not a party to the purchase contract,

which was only between Town and the seller, and any dispute should be settled between

the parties to the contract.

{¶ 4} Town’s complaint was heard by a magistrate. At the trial, Town called real

estate agent, Sally Routh, his niece, Jennifer Jackway, and Sidoti, and testified in his own

behalf. Sidoti testified in her own behalf.

{¶ 5} Town first called Sidoti on cross-examination. Sidoti testified that she listed

a property on Westwind Drive for sale as the real estate agent. Before listing the

property, she met with the seller, toured the property, took notes, came up with a price,

entered the information into the MLS system, “double-checked everything,” and sent the

listing to the seller to proof. From her examination of the property, she “100 percent

knew the heated floors were in the en suite, which is bathroom to [her]. [She] knew the

floors were not heated in the bedroom or around the bed.”

{¶ 6} The marketing paragraph that Sidoti wrote for the property included the

sentence, “[t]he master suite will WOW you with its top-of-the-line finishes including

heated floors.” This statement was included in the MLS listing for the property. Sidoti

agreed with Town’s counsel that “boil[ing] that sentence down, you’re making

representation in the MLS listing that there are heated floors in the master suite[.]” The

3.
bottom of the MLS listing included the statement, “[a]ll data subject to errors, omissions

or revisions and is NOT warranted.”

{¶ 7} Following the sale, Sidoti had a text conversation with Routh, Town’s real

estate agent, in which they had the following exchange:

[Routh:] Good Moring Tarina. I’m afraid there is an issue [with the
condo]. The marketing remarks said there are heated floors in the master
bedroom. The floor is not heated. Buyer is upset. He is getting an
estimate on replacing the flooring. He is asking for reimbursement. . . .

[Sidoti:] I’ll have to look back at my notes, but I am almost positive
they were heated floors. However, what’s on the MLS is not
warranted…you know that.

...

[Sidoti:] Oh you mean bedroom? No the floors are only heated in
bathroom.

...

[Sidoti:] Certainly was not intended to mislead.

Says “en-suite”….

A home inspector would have pointed that out.

Ugg sorry for any confusion

(Second and final ellipses in original.)

{¶ 8} Sidoti denied ever admitting that she had made a mistake in the listing and

said, “I don’t think I did anything wrong.” She claimed that she would “never mislead or

fraudulently misrepresent a property.”

{¶ 9} Counsel had Sidoti read R.C. 4735.18(A)(21), which provides that a real

estate agent can be disciplined for “‘[h]aving published advertising whether printed,

radio, display or any other nature, which was misleading or inaccurate in any material
4.
particulars or in any way having misrepresented any properties turned, policies or

services of the business conducted.’” She agreed that it was against the rule for a realtor

to negligently misrepresent facts in an MLS listing. However, Sidoti said that “[n]ot one

part of [her]” thought that the MLS listing for the condo was misleading.

Routh testified that she had been a real estate agent since 1985 and a real estate

broker since 2000. She also taught pre-licensure classes for years.

{¶ 10} Regarding the MLS listing for the condo, Routh explained that “when it

says suite, we refer to the bathroom and the bedroom that it’s connected to.” “Suite” did

not mean just one room.

{¶ 11} Routh was Town’s real estate agent when he purchased the condo and she

showed him the condo. Town went through the condo twice. Routh did not realize that

heated floors in the bedroom were important to Town until after closing, when Jackway

told her that Town had learned that the bedroom floors were not heated. The issue had

not come up before that.

{¶ 12} After learning about the problem, Routh called Sidoti. According to Routh,

“I said, ‘Tarina, we have an issue.’ I said, ‘The buyer thought the master bedroom floors

were heated.’ And it says that in the—and she said, ‘Well, let me look at my records.’

And then you pulled up your records. And then you then you waited, paused and then

you said, ‘Well, haven’t you ever made a mistake?’”

{¶ 13} Routh did not remember their conversation happening in text messages, but

she did not see why they would have had the same conversation twice. Regardless, she

5.
recalled Sidoti commenting, “‘Well, haven’t you ever made a mistake?’” during a phone

conversation.

{¶ 14} Routh discussed a portion of a white paper produced by the Ohio

Association of Realtors regarding misleading statements in real estate advertising, which

explained that “[t]he licensing laws require that all real estate advertisements be truthful

and free from any misleading statements . . . . Even if the misrepresentations are made

inadvertently, they may trigger liability . . . . R.C. § 4735.18(A) (21) states that any

broker or agent who publishes a false or misleading advertisement is subject to discipline

by the Ohio Real Estate Commission.”

{¶ 15} Routh believed that the prohibition in R.C. 4735.18(A)(21) applied to this

situation because, “I just think it was misrepresented, but I don’t think it was on purpose.

I think it was just a mistake. . . . But in this situation, it was something in the remarks

that were very important to the buyer.” The mistake she was referring to was the

bedroom of the master suite not having heated floors.

{¶ 16} Based on her education and experience as a realtor, Routh “believe[d] that

[Sidoti] made a mistake that was important to the buyer” and that she unknowingly put

out an MLS listing that was false or misleading.

{¶ 17} On cross-examination, Routh testified that she was not aware before

closing of a problem with Town’s feet that required heated floors.

{¶ 18} Routh gave Town an MLS listing sheet when she showed him the property

that would have had the warranty disclaimer language on it. She did not tell Town that

the information in the MLS listing was not warranted and that he needed to do his own

6.
due diligence. Although Town wanted an inspection, Sidoti told them that the seller had

an inspection that was only a year old, and Town agreed to accept that. The inspection

did not mention any heated floors.

{¶ 19} Town was in the house with Routh twice before signing the purchase

contract and the heated floors did not come up.

{¶ 20} Jackway testified that she is Town’s niece. He moved to the area because

she lives here. When he was preparing to move here, they called Routh, who found three

real estate listings to show him. Jackway was aware of the importance of heated floors

because Town has neuropathy in his feet.

{¶ 21} They looked at the condo he purchased once before he made an offer.

Routh advised Town to make a full-price offer even though the condo had been on the

market for a while “because it had everything he needed and wanted.” The heated

bedroom floors were very important to Town; in fact, “[a]ll he talked about were those

floors.”

{¶ 22} When Jackway heard that the “master suite” had heated floors, she thought

that “it’s the bedroom and the en suite bathroom that would have the heat in the floors.

And if you will look at the MLS listing, it says heated floors with an ‘S’ at the end of it

which indicates, you know, more than one. And it just—by virtue of the word ‘suite,’ it’s

clearly a bathroom and a bedroom combination. That’s the definition of suite.” She

thought that heated floors in the master suite meant that Town would not have to worry

about the laminate floors in the bedroom being cold, despite not having carpet.

7.
{¶ 23} She and Town discovered that the bedroom did not have heated floors after

Town purchased the property. Town allowed the seller to stay in the condo for a couple

of weeks, and after she moved out, he and Jackway went to the condo. When Jackway

turned on the thermostat that should have controlled the heated floors in both the

bedroom and the bathroom, the bedroom floors did not heat up. There was no way to tell

from looking at the thermostat which areas it controlled.

{¶ 24} Immediately after discovering the issue with the floors, Jackway called

Routh, who said that she would call Sidoti. Shortly after, Routh called back to relay her

conversation with Sidoti.

{¶ 25} On cross, Jackway testified that she did not tell Routh about Town’s health

condition or that he needed heated floors. In fact, heated floors were not mentioned

before closing at all. They brought the issue with the floors to someone’s attention as

soon as they noticed it. Although Jackway spoke to both Sidoti and the owner, she never

asked either about the heated floors.

{¶ 26} Town testified that he moved to Sandusky to be close to Jackway, his niece

and legal guardian. He explained that he has neuropathy, which “is basically a

circulation problem with the legs and the feet and the flow of blood.” Because of that,

heated floors in his master bedroom were important to him. He explained that he has to

“get up multiple times during the night to go to the bathroom and be[ing] able to put [his]

feet down on warm surface, that also helps with the circulation of blood in the legs too,

feet.”

8.
{¶ 27} Before viewing the condo, he had read the MLS listing representing that

there were heated floors in the master suite. He explained that heated floors were “a

definite plus” and were “important.” However, “[i]t’s not like [he] wouldn’t have bought

the house maybe if it didn’t have heated floors, but [he] sure wouldn’t have paid full

price for the house.” He would have offered at least $5,000 less for the condo if he had

known about the floors.

{¶ 28} He first learned that the bedroom did not have heated floors “[w]hen [he]

talked to [the seller] and made mention to her how excited [he] was about the heated

floors, and she told [him] that there weren’t any heated floors.” This conversation

occurred when the seller was living in the condo after closing. Town immediately told

Jackway, who contacted Routh.

{¶ 29} On cross-examination, Town explained that the lack of heated floors was

not “deadly” but was a “total inconvenience.” He said, “[i]t’s something that I wish I

had, and something that I had purchased when I purchased the home.” He admitted that

he did not plan to buy only a house with heated floors. He also admitted that he did not

check to see where the thermostat was or how it worked when he was touring the condo

because it was very warm in the house and he assumed that the thermostat operated both

floors because the MLS listing said “‘[w]ow, heated floors.’”

{¶ 30} Regarding an inspection, Town said that the seller could have put heated

floors in after the inspection was done and they would not have been included in the

inspection.

9.
{¶ 31} Town got an estimate for installing heated floors in the master bedroom,

which would cost $4,130. He described the lack of heated floors for the nine months he

had lived in the apartment as “an inconvenience in the sense of hitting cold floors . . . .”

{¶ 32} He chose to sue Sidoti personally because he was “going after what was

written on the MLS. And the representation that was made on the MLS is what [he]

bought the home with the representation.”

{¶ 33} The purchase agreement said that the home was being sold as-is. There

was no language about floors in the contract. Town signed a document before closing

removing the general inspection contingency from the purchase contract. He did not

recall seeing that document.

{¶ 34} In her direct testimony, Sidoti pointed out that a real estate purchase is

“buyer beware” and a purchaser is required to do their own due diligence regarding a

property. Additionally, Town had his own representation who had a fiduciary duty to

him.

{¶ 35} Sidoti explained that she meets with a client and views a property before

writing the description that goes on the MLS listing for that property. Once she has

written the marketing paragraph, she sends it to the seller for their review to make sure

she did not miss anything. After that, the listing “goes live” and is available to anyone on

the internet. Information on an MLS listing or third-party real estate sites, like Zillow or

Realtor.com, is not warranted. Although third-party sites pull their information from the

MLS listing, the information they show may not look the same as the MLS listing

10.
because “sometimes they pull part of the information, not all of it. [She has] no control

over what they decide to retrieve and what they don’t . . . .”

{¶ 36} No one asked Sidoti about heated floors and no one mentioned heated

floors before closing. If they had, Sidoti, the seller, or both could have addressed the

issue through negotiation. She also claimed that the statement in the MLS was true

because there are heated floors in the master en suite bathroom.

{¶ 37} On cross, Sidoti confirmed that she was claiming that there was no

misstatement in the MLS listing when it says that there are heated floors in the master

suite. She also claimed that she was protected by the disclaimer language on the MLS

listing for any misstatement that might have existed. She explained that “[s]ometimes we

are relying on our clients. So as realtors and brokers, we are protected from that line,

because we can’t be held liable for what our clients say.”

{¶ 38} Following the trial, the magistrate issued a decision finding in Sidoti’s

favor and dismissing Town’s complaint. In his findings of fact, the magistrate noted that

the parties had different interpretations of what it meant to have heated floors in the

master suite of the condo, but he did not determine which interpretation was correct.

{¶ 39} In his conclusions of law, the magistrate found that Town failed to prove

negligent misrepresentation because he could not prove justifiable reliance. Town

admitted that he did not investigate whether the bedroom floors were heated before

closing, he did not inquire about the bedroom floors being heated before closing, and he

never advised anyone (including his own realtor) about his need for heated flooring.

Further, the magistrate found that the tort of negligent misrepresentation does not apply

11.
to a consumer transaction like a real estate sale, nor does it apply in the absence of a

fiduciary relationship. Because there was no fiduciary relationship between Town and

Sidoti and the transaction involved was a consumer transaction, negligent

misrepresentation was wholly inapplicable.

{¶ 40} Town filed objections to the magistrate’s decision. First, he argued that the

magistrate erred by finding that he failed to prove justifiable reliance because it ignored

Town’s testimony that “due to a health condition, the listing’s statement that the

condominium came with heated floors in the Master Suite, is what attracted him to the

unit in the first place[.]” Town also testified that he would have offered less for the

condo if he had known that the bedroom floors were unheated, and the MLS listing noted

that the “Master Suite” had heated floors, but only the master bathroom floors were

heated. Second, he argued that the magistrate erred as a matter of law by finding that

Sidoti, as the seller’s realtor, had no duty to him, as the buyer. He claimed that this

finding added an element not required for a finding of negligent representation. Finally,

he argued that the magistrate erred as a matter of law by finding that negligent

misrepresentation does not apply in consumer transactions because that conclusion was

“contrary to mountains of case law” and misconstrued the cases the magistrate relied on.

{¶ 41} The trial court summarily overruled Town’s objections and adopted the

magistrate’s decision. The court dismissed Town’s complaint.

Town now appeals, raising one assignment of error:

THE TRIAL COURT ERRED IN ADOPTING THE DECISION OF
THE MAGISTRATE FINDING THAT THE APPELLANT’S
COMPLAINT SHOULOD [sic] BE DISMISSED

12.
II. Law and Analysis

{¶ 42} In his assignment of error, Town raises three arguments. First, he argues

that the trial court erred by adopting the magistrate’s finding that he failed to prove the

reasonable reliance element of negligent misrepresentation because the magistrate’s

finding was against the manifest weight of the evidence. He contends that the

magistrate’s finding improperly imposed upon him a duty to make further inquiry,

despite the representation not appearing unreasonable on its face and there being no

apparent reason to doubt its veracity. Next, he argues that the trial court erred as a matter

of law by adopting the magistrate’s finding that Sidoti, as the seller’s agent, had no duty

to him, as the buyer of the condo. He claims that privity between the parties is not an

issue in a negligent representation case. Instead, the issue the magistrate should have

considered is whether a third party’s reliance on the information was foreseeable.

Finally, he argues that the trial court erred by adopting the magistrate’s finding that the

tort of negligent misrepresentation does not apply to a real estate purchase transaction.

He contends that the magistrate reached his conclusion by misinterpreting case law, and

numerous cases support a finding that negligent misrepresentation can apply to a real

estate transaction.

{¶ 43} In response, Sidoti argues that (1) Town failed to prove that the remark in

the MLS was materially false or that he suffered any damages as a result of the statement;

(2) the disclaimer on the MLS clearly demonstrates that statements in the MLS are for

marketing purposes only and are not warranted; (3) the parties’ obligations were solely

governed by the sale contract and the comments in the MLS were not incorporated into

13.
that contract; (4) Town waived an inspection of the condo and accepted the property “as

is”; and (5) Town was represented by his own real estate agent who had a duty to

investigate any uncertain features of the property. Sidoti also argues that we should

reject Town’s claims because he “is repeating the same argument already rejected twice.

The small claims court considered the evidence and rejected the claim. The appellate

court upheld that ruling. This further appeal raises no new facts and no legal basis for

reversal.”

A. Town has properly appealed his case.

{¶ 44} As a preliminary matter, we address Sidoti’s argument that we should

reject Town’s claims simply because they have already been rejected by the magistrate

and trial court. Under Civ.R. 53(D)(3)(b), a litigant may file objections to a magistrate’s

decisions. If he does so, the court that referred the matter to the magistrate is required to

independently review the matter and rule on the objections. Civ.R. 53(D)(4)(d). Once

the trial court has issued its decision in a case, a litigant can appeal the outcome to the

court of appeals because “every litigant in Ohio is entitled to an appeal as of right by

filing a notice of appeal within the time allowed” by App.R. 4. (Cleaned up.) Moldovan

v. Cuyahoga Cty. Welfare Dept., 25 Ohio St.3d 293, 294 (1986), citing App.R. 3(A).

When a party files a timely notice of appeal, we are constitutionally bound to “review and

affirm, modify, or reverse judgments or final orders of the courts of record inferior to the

court of appeals within the district . . . .” Ohio Constitution, art. IV, § 3(B)(2).

{¶ 45} Here, Town followed the appropriate process for having the outcome of his

case reviewed. When he did not get the result he wanted, he first objected to the

14.
magistrate’s decision, as provided for in Civ.R. 53(D)(4)(b), then he filed a timely notice

of appeal, as provided for in App.R. 3 and 4. This is all that he was required to do.

Because Town has properly pursued this appeal that he is entitled to, we are required to

review it. Thus, we reject Sidoti’s claim that we must disregard Town’s arguments

because they have already been rejected by the magistrate and the trial court.

B. Town did not prove the elements of negligent misrepresentation.

{¶ 46} After reviewing the record, we find that Town failed to prove all of the

element of negligent misrepresentation, and the trial court did not abuse its discretion by

adopting the magistrate’s decision.

{¶ 47} Generally, we review a trial court’s decision on objections to a magistrate’s

decision for an abuse of discretion. Baker v. R/A Cab Co., 2019-Ohio-4375, ¶ 10 (6th

Dist.). Abuse of discretion means that the trial court’s decision is unreasonable, arbitrary,

or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996).

However, when an appeal from a trial court’s action on a magistrate’s decision presents a

question of law, we review the issue de novo. Slayton v. Peterson, 2024-Ohio-863, ¶ 19

(6th Dist.).

Negligent misrepresentation occurs when

“[o]ne 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 exercise reasonable care or
competence in obtaining or communicating the information.”

(Emphasis added and deleted.) Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4 (1989),

15.
quoting 3 Restatement of the Law 2d, Torts, § 552(1), at 126-127 (1965). Negligent

misrepresentation is a business tort and, “[t]herefore, the elements for negligent

misrepresentation ‘require (1) a defendant who is in the business of supplying

information; and (2) a plaintiff who sought guidance with respect to his business

transactions from the defendant.’” Hamilton v. Sysco Food Servs. of Cleveland, Inc.,

2006-Ohio-6419, ¶ 20 (8th Dist.), quoting Nichols v. Ryder Truck Rental, Inc., 1994 WL

285000 (8th Dist. June 23, 1994).

{¶ 48} Here, Town was not involved in a “business transaction” as a matter of law.

He, as an individual, purchased the condo from another individual for use as his personal

residence. Nothing about this transaction indicates that Town entered into it for business

purposes. Because he was not involved in a business transaction, the information that

Sidoti supplied in the MLS listing could not have been “for the guidance of [Town] in

[his] business transactions,” as required to prove negligent misrepresentation. Delman at

4. Therefore, Town failed to prove this element of negligent misrepresentation.

{¶ 49} Town cites cases to support his position that negligent misrepresentation is

applicable to real estate transactions like the purchase of his condo, but these cases do not

address the business transaction element of negligent misrepresentation. See Jochum v.

Howard Hanna Co., 2020-Ohio-6676 (11th Dist.); Davis v. Montenery, 2007-Ohio-6221

(7th Dist.). In Jochum, the Eleventh District summarily affirmed summary judgment on

the plaintiff’s negligent misrepresentation claim because he presented no evidence that

the defendants supplied him with false information, without ever addressing whether the

parties were engaged in a business transaction. Jochum at ¶ 40. And in Davis, the

16.
Seventh District found that the negligent misrepresentation claim failed and summary

judgment was appropriate because the plaintiff failed to show justifiable reliance, without

ever addressing whether the parties were engaged in a business transaction. Davis at ¶

74-75. Because these cases did not address a critical element of the negligent

misrepresentation test, we find that they are distinguishable.

{¶ 50} Further, even if we assume that the real estate sale was a “business

transaction,” Town failed to show justifiable reliance on Sidoti’s statement in the MLS

listing. “Reliance is justifiable if the representation does not appear unreasonable on its

face and if there is no apparent reason to doubt the veracity of the representation under

the circumstances.” Amerifirst Savs. Bank of Xenia v. Krug, 136 Ohio App.3d 468, 495

(2d Dist. 1999). Justifiable reliance, as compared to reasonable reliance, “‘is a matter of

the qualities and characteristics of the particular plaintiff, and the circumstances of the

particular case, rather than of the application of a community standard of conduct to all

cases.’” Id. at 496, quoting Field v. Mans, 516 U.S. 59, 70-71 (1995). In determining

whether one party justifiably relied on the other’s statements, “the court must inquire into

the relationship between the parties. . . [and] must consider the nature of the transaction,

the form and materiality of the representation, the relationship of the parties and their

respective means and knowledge, as well as other circumstances.” Mishler v. Hale,

2014-Ohio-5805, ¶ 33 (2d Dist.).

{¶ 51} In this case, as the magistrate found and the trial court adopted, the facts do

not support a finding that Town’s reliance on the representation in the MLS listing was

justified. Town toured the condo twice but admitted that he did not investigate whether

17.
the floors in the master bedroom were heated or whether the thermostat in the master

bathroom controlled the floors in the master bedroom. He also chose not to have the

condo inspected before purchasing it. Instead, he chose to rely on a year-old inspection

that did not mention any heated flooring (including in the master bathroom), which still

did not prompt him to investigate the existence or extent of the heated floors in the master

suite. Beyond that, the MLS listing itself clearly states that “[a]ll data is subject to error,

omissions or revisions and is NOT warranted.” And Town and Routh testified that Town

did not mention the importance of heated floors to anyone before closing.

{¶ 52} In Abbott v. Loss Realty Group, 2005-Ohio-5876, a case similar to this one,

we likewise found that the plaintiffs failed to prove justifiable reliance. There, the

sellers’ real estate agent listed the home as 1,991 square feet, but shortly after closing, the

Abbotts learned that it was actually 1,445 square feet. Id. at ¶ 5-6. The Abbotts had

inspected the home three times before closing; the fact sheet with the square footage also

included the wrong number of bedrooms; the only comment one of them made about the

size of the house was that “‘he was not comfortable that the living room was big enough

for some of his furniture’”; the tax records for the home showed that it had 1,991 square

feet, which included a 480 square foot garage; the purchase contract stated that the

Abbotts were purchasing the home subject to inspection rights and in as-is condition; and

the information sheet on which the sellers’ agent included the square footage of the house

included the statement, “‘[a]ll information herein is from sources deemed reliable. No

representation is made as to its accuracy. It is provided subject to error and omissions

and to change of price or terms, prior sale or lease, or withdrawal, all without notice.’”

18.
Id. at ¶ 11-14. Based on those facts, and the fact that the Abbotts neither directly inquired

about the size of the house before closing nor told anyone that the price-per-square-foot

of the house was a material factor in their decision to purchase that house, we found that

the Abbotts did not justifiably rely on the information in the listing sheet, so their

negligent misrepresentation claim failed. Id. at ¶ 24. We specifically found that the

language on the fact sheet disclaimed liability. Id. at ¶ 25.

{¶ 53} Like the Abbotts, Town had ample opportunity to inspect the floors in the

master suite, he was warned that the information on the MLS listing sheet might not be

accurate and was not guaranteed, and he did not tell either of the real estate agents that

heated bedroom floors were important to his purchase decision. Under these

circumstances, we cannot say that the trial court abused its discretion by adopting the

magistrate’s determination that Town did not justifiably rely on Sidoti’s statement about

heated floors in the master suite. Therefore, Town’s assignment of error is not well-

taken.

III. Conclusion

{¶ 54} For the foregoing reasons, the August 6, 2025 judgment of the Sandusky

Municipal Court is affirmed. Town is ordered to pay the costs of this appeal under

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

19.
Thomas J. Osowik, P.J.
JUDGE

Christine E. Mayle, J.
JUDGE

Myron C. Duhart, J.
CONCUR. JUDGE

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DUHART, J., Concurring,

{¶ 55} I write separately from the majority because I believe the analysis applied

in this case reflects an unduly restrictive interpretation of negligent misrepresentation and

does not adequately address several critical issues raised by the facts before us.

In my view, courts construing the elements of negligent misrepresentation often

read those requirements too narrowly, thereby improperly denying recovery to

foreseeable plaintiffs—such as purchasers of residential real estate—who suffer harm as

a result of false information disseminated through an MLS listing.

{¶ 56} Relatedly, this case presented a meaningful opportunity regarding the

extent to which a buyer of real property may reasonably rely on professional

representations made by a seller’s agent. It also warranted examination of whether Sidoti,

as the seller’s agent in this matter, failed to exercise reasonable care or competence in

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obtaining or communicating the information concerning the heated floors in the master

suite.

{¶ 57} I believe the court’s analysis was incomplete in assessing justifiable

reliance. In my view, the trial court in its analysis should have placed a higher level of

scrutiny on whether the information at issue was false and whether Sidoti exercised

reasonable care in obtaining or communicating that information. Instead, it seems the

court focused almost exclusively on Town’s alleged failure to investigate, while giving

no consideration to the MLS statement itself or to the role that statement may have

played in shaping Town’s actions.

{¶ 58} However, despite these concerns, I recognize that the trial court retained

discretion to determine whether Town’s reliance on Sidoti’s statement regarding heated

floors in the master suite was justified. For that reason, I concur in the majority’s opinion

regarding justifiable reliance.

{¶ 59} With respect to the requirements for establishing negligent

misrepresentation, I accept that the majority accurately recites the formal elements of this

claim. However, I believe the majority opinion neglects to acknowledge that this court

has also previously made clear—that the “essential elements” of negligent

misrepresentation are simply “false information and justifiable reliance.” Abbott v. Loss

Realty Group, 2005-Ohio-5876, ¶ 23 (6th Dist.). Notably absent from the list of

“essential” elements is any strict requirement that a plaintiff must be guided in his

“business transactions” by the defendant in order to succeed on a negligent

misrepresentation claim.

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{¶ 60} Likewise, in Moffitt, 2006-Ohio-3064 (6th Dist.), this court has previously

interpreted the “business transactions” component of negligent misrepresentation with

considerable breadth when we held that a negligence claim based on allegedly false

representations by a doctor’s office—specifically, that it would notify the plaintiff’s

employer that the plaintiff was medically unable to attend work—was sufficient on its

face to support a negligent misrepresentation claim.

{¶ 61} Consistent with this court’s approach in Moffitt, I believe the tort of

negligent misrepresentation should be broadened to include circumstances such as those

presented here, even though Town was not engaged in a “business transaction” in the

narrow sense typically contemplated.

{¶ 62} Nevertheless, because Town was not involved in a narrowly contemplated

business transaction, the information Sidoti supplied in the MLS listing cannot be said to

have been provided “for the guidance of [Town] in [his] business transactions.” For this

reason and those stated above, I ultimately concur with the majority’s conclusion that

Town failed to establish a claim for negligent misrepresentation.

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