Garofalo v. Chicago Title Ins. Co.

• Decision Date: 23 May 1995
• Docket Number: No. 68060,68060
• Parties: GAROFALO, Appellant, v. CHICAGO TITLE INSURANCE COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

Page 95

104 Ohio App.3d 95

661 N.E.2d 218

GAROFALO, Appellant, v. CHICAGO TITLE INSURANCE COMPANY et al., Appellees.

No. 68060.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided May 23, 1995.

Luigi Garofalo, pro se.

Steven E. Elder, for appellee Chicago Title Insurance Company.

Kohrman, Jackson & Krantz and Sarah Gabinet, for appellee Applied Mfg. Realty, Inc.

Victor Wertheimer, for appellee Alan R. Daus & Associates, Inc.

Russo, Ross & Company and Daniel M. Roth, for appellee Dario Fonovic.

HARPER, Judge.

Plaintiff-appellant, Luigi Garofalo, filed a complaint in the Court of Common Pleas of Cuyahoga County on May 12, 1994 against defendants-appellees, Chicago Title Insurance Company, Alan R. Daus & Associates, Inc., Dario Fonovic and Applied Mfg. Realty, Inc. Appellant advanced claims against the defendants in connection with an aborted sale of real estate. All of the defendants filed dispositive motions, i.e., either a motion to dismiss or for summary judgment, which were granted by the trial court in July 1994.

I

Applied Mfg. Realty, Inc. ("Applied") owned real estate located at 21500 St. Clair Avenue, Euclid, Ohio ("the property") which was put up for sale. Alan R. Daus & Associates, Inc. acted as the real estate broker for the sale of the property.

Appellant and Fonovic made a written Offer, Receipt and Acceptance for the purchase of the property on May 26, 1993 for a total purchase price of $210,000 ("the agreement"). Applied accepted the offer on or about the same date. Pursuant to the terms of the parties' agreement, appellant and Fonovic deposited $5,000 as earnest money.

The agreement included an Addendum to Offer which contained the following provision at paragraph ten:

"This Agreement is contingent upon the following: (a) Seller obtaining a lot split whereby the Property is split from Parcel A as shown on the attached survey. Seller shall proceed promptly to obtain such lot split. (b) Seller's obtaining a partial release from Seller's mortgagee releasing the Property from the lien of its mortgage."

Paragraph eight of the agreement provided that upon acceptance, the offer became the agreement for the purchase and sale of the property. Moreover, the agreement comprised all the terms and conditions agreed upon by the parties.

Chicago Title Insurance Company ("Chicago") thereafter forwarded a letter to Fonovic relating to Applied's agreement to furnish a Title Guaranty along with the sale of the property. Chicago advised that the Title Guaranty would be furnished after the title transfer unless the buyers instructed it to do otherwise. Moreover, Chicago informed Fonovic about an Owner's Title Insurance Policy which would provide broader protection than a Title Guaranty and would be modestly priced at less than $400. The final paragraph of the letter notified Fonovic that if "you elect to obtain the additional protection of an owner's policy, you may advise us by signing the enclosed letter and returning it to us." The "enclosed letter" read as follows "Gentlemen:

"I/We acknowledge receipt of your letter and booklet regarding Owner's

Title Insurance which is available to me/us.

"After reviewing this material I/We elect the following:

____________________________ NOT TO RECEIVE THIS ADDITIONAL

COVERAGE AVAILABLE TO ME/US.

______________________________ YES, PLEASE ISSUE AN OWNER'S

TITLE INSURANCE POLICY AND

CHARGE ME/US WITH THE

ADDITIONAL COST.

Sign: ____________________

DARIO FONOVIC

Sign: ____________________

LUIGI GAROFALO"

Chicago sent two letters to appellant and Fonovic in June 1993. The first dealt with escrow and tax matters. The other regarded prerequisites for the obtaining of an Owner's Policy. Both letters were directed to Fonovic and "Luigi Garofalo."

Meanwhile, the city of Cleveland conducted a water status check for purposes of sale of the property. It listed "Applied Mfg. Realty, Inc. to Dario Fonovic" as the owner of the property in its report.

The Euclid Sun Journal reported in its June 24, 1993 edition that two new businesses were entering the community. The newspaper identified Ohio Machinery Repair, owned by Fonovic, as the business which was going to be located at 21500 St. Clair Avenue. Appellant was not listed in the article as purchasing the real estate at 21500 St. Clair Avenue, nor did the article mention his company, Hydraulic Valves, Inc.

Appellant requested in a June 30, 1993 letter that Chicago provide certain documents to him regarding the property. Specifically, he asked for copies of all of the documents provided to Fonovic thus far or in the future. Moreover, appellant sought the identities of parties who provided any information that was used or would be used in the preparation of the documents.

Chicago responded to this correspondence on July 6, 1993. One of the documents provided to appellant was an "INSTRUCTION REGARDING MANNER OF DEALING WITH THE WITHHOLDING OF TAX ON DISPOSITION OF UNITED STATES REAL PROPERTY INTERESTS." This document required the signature(s) of the buyers of the property as an acknowledgment. Appellant's name was typed next to Fonovic's in the document provided to appellant by Chicago; a different copy of the document in the case file does not list appellant as a buyer.

On July 13, 1993, Alan R. Daus & Associates, Inc. ("Daus") penned a letter to Chicago wherein it was disclosed that the conditions contained in paragraph ten of the agreement were fulfilled. All that was required thereafter was the designation of a closing date.

Appellant forwarded a letter to Chicago on July 20, 1993. He stated therein:

"This is to inform you that this Company in cooperation with Alan R. Daus and Associates has knowingly and intentionally engaged in the production of false documents concerning the above captioned escrow.

"This Co. [sic ] persistence not to correct said documents while insisting that I sign them even after my many attempts and warnings to do so has left me with no choice but to withdraw from this deal."

Appellant sent a similar letter to Daus on the same date.

Applied, through its counsel in a July 21, 1993 letter, notified appellant and Fonovic of the satisfaction of the conditions to closing which were set forth in the agreement. In accordance with the satisfaction and in anticipation of the closing, Applied deposited the original executed Deed and Easement documents with Chicago. Applied thus advised appellant that under paragraph five of the agreement, the closing shall be on a date mutually agreed to by the parties "not later than 15 days" following satisfaction. Applied, therefore, reminded appellant that the closing would either proceed in accordance with the terms of the agreement or Applied would pursue its legal remedies, including the retention of the $5,000 earnest money.

Daus also corresponded with appellant via the mail in a July 22, 1993 letter. Its letter stated in relevant part:

"In good faith you and your partner signed an offer on the property listed above which was accepted by the Seller [Applied] on May 26, 1993. On the same day we delivered it to Chicago Title and instructed them to copy both of you on all documents. * * * There has been no illegal behavior on our part nor have we engaged in the production of false documents.

"1. An error was made in the spelling of your name, which was corrected as soon as it was brought to our attention.

"2. For some reason you did not initially receive copies of Chicago Title's correspondence. Neither did we. This was corrected as soon as it was brought to our attention.

"3. We delivered copies of the warranty deed, the easement for the water line, and the easement for the access between the buildings to both you and Mr. Fonovic with both names shown as the buyers in a form that you have not objected to. The Seller has performed his [sic] part of the contract."

The agreement to purchase the property subsequently fell through. Applied eventually sold the property to Fonovic as the sole purchaser for $200,000.

II

Appellant filed his pro se complaint in the trial court on May 12, 1994. The complaint outlined two claims for relief, the latter consisting of over twenty-one paragraphs.

Appellant set forth in Count II that he received a telephone call from Fonovic in June 1993 and learned about Fonovic's receipt of certain documents from Chicago. Fonovic brought the documents to appellant for appellant's signature. Appellant noticed four "inconsistencies" upon review of the documents: (1) correspondence addressed only to Fonovic; (2) misspelling of appellant's surname; (3) listing of Fonovic only in the "Buyers column"; and (4) title insurance policy was a "typed letter," not a standard format, and was deceitful as written.

According to appellant's complaint, appellant immediately spoke with Fonovic and a representative of Daus, Jack Berger, about the "inconsistencies." Appellant advised them that he would not sign any document until it was written correctly. Fonovic's and Berger's remarks and answers were allegedly "evasive, nonresponsive and orchestrated."

Chicago thereafter forwarded additional documents to appellant without correcting the initial documents. Therefore, Fonovic was still listed as the only buyer of the property. Moreover, appellant charged that a proper insurance policy was never issued to him pursuant to his request.

Appellant then addressed the Euclid Sun Journal article which was printed in June 1993. He asserted that when he asked Fonovic and Berger about why he was not mentioned in the article, both men responded, " 'I don't know, I did not write the article, I have nothing to do with it.' " Appellant conducted his own investigation and discovered that Loren Weiss, Applied's president, was the party responsible for supplying the information contained in the article.

On July 15, 1993, Fonovic and Berger requested that appellant sign a document which would have set the closing date. Appellant...