Sosic v. Stephen Hovancsek & Associates, Inc.

• Decision Date: 29 July 2021
• Docket Number: 109993
• Court: Ohio Court of Appeals
• Parties: IVAN SOSIC, ET AL., Plaintiffs-Appellants, v. STEPHEN HOVANCSEK & ASSOCIATES, INC., ET AL., Defendants-Appellees.

2021-Ohio-2592

IVAN SOSIC, ET AL., Plaintiffs-Appellants, v. STEPHEN HOVANCSEK & ASSOCIATES, INC., ET AL., Defendants-Appellees.

No. 109993

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 29, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-19-917712, CV- 20-932021

JUDGMENT REVERSED AND REMANDED

Daniel Mark Katz Co., L.PA., and Murray Richelson, for appellants.

Reminger Co., L.P.A., Holly Marie Wilson, and Gregory G Guice, for appellees.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE

{¶ 1} Plaintiffs-appellants, Ivan (individually "Ivan") and Izidora Sosic (individually "Izidora") (together "the appellants") appeal from the trial court's judgment granting a motion for judgment on the pleadings in favor of defendants- appellees, Stephen Hovancsek & Associates ("SHA") and Ryan A. Snezek ("Snezek") (together the "appellees"). The appellants raise the following assignments of error for review:

1. The trial court erred by applying a heightened pleading standard claimed by defendant that has been rejected by the Eighth District.

2. The trial court erred by holding a professional may not be held liable by a third party for professional negligence whose reliance is justifiably forseen.

3. The trial court erred by holding the complaint does not state a claim for negligent supervision.

{¶ 2} After careful review of the record and relevant case law, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

I. Procedural and Factual History

{¶ 3} In October 2014, the appellants sold real property to their neighbors, John (individually "John") and Christina Susnik (individually "Christina") (together "the Susniks"). Upon the purchase of the property, John retained SHA to perform a topographic survey to determine if there was an existing easement on the property. The survey was performed by SHA employees, Snezek and John Doe ("John Doe"), who assessed the property and marked the relevant property lines with survey sticks.

{¶ 4} At some point, Ivan reviewed the work performed by SHA and removed various survey sticks that he believed were improperly placed several feet onto his property. The Susniks took issue with Ivan's conduct and called the police.

{¶ 5} In July 2019, appellants filed a civil complaint in Cuyahoga C.P. No. CV-19-917712 against the appellees and defendants John Susnik and SHA employee, John Doe. The complaint set forth claims sounding in negligence and intentional misconduct, alleging that (1) Snezek was negligent in supervising the surveying work of John Doe, (2) John Doe negligently breached the standard of acceptable practices and professionalism in the surveying community by incorrectly placing a survey stick 2.34 feet onto appellants' property, (3) John Susnik negligently demanded that criminal charges be filed against Ivan, and (4) John Susnik's actions were intentionally and maliciously motivated by ethnic hate. The complaint further alleged that Ivan incurred unnecessary legal expenses due to his wrongful arrest, sustained damage to his reputation, and was unable to sell the disputed property as a proximate result of the defendants' joint negligence or intentional misconduct^[1]

{¶ 6} In May 2020, the appellees filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing the appellants could not present a prima facie case of professional negligence against them because SHA and Snezek "did not owe appellants any duty under Ohio law." The appellees further asserted that the complaint failed to present sufficient allegations to support a negligent supervision claim against Snezek.

{¶ 7} The appellants opposed the motion, arguing the complaint satisfied the notice-pleading requirements of Civ.R. 8 because the relevant duty owed to the appellants was "subsumed" in their allegations of negligence. The appellants further argued that the complaint set forth sufficient pleadings to permit the reasonable inference that (1) their reliance on the information provided by the professional surveyors was foreseen, and (2) "had [SHA] properly supervised/trained their employees that none of the harm would have resulted."

{¶ 8} In June 2020, the appellees filed a reply brief in support of their motion for judgment on the pleadings. Within the filing, the appellees' reiterated that the appellants' complaint "did not allege that they relied upon any information provided by the defendants." Noting that the appellants' claim for negligent supervision was pursued against Snezek, and not SHA, the appellees further argued that the complaint failed to establish an employment relationship between Snezek and John Doe and does not allege that Snezek had notice of John Doe's incompetence.

{¶ 9} In July 2020, the trial court granted the appellees' motion for judgment on the pleadings, stating, in relevant part:

It is undisputed there was no contract between plaintiff and Susnik's surveyors. The negligent surveyor does not owe a duty to plaintiff based on Susnik's contract in the absence of privity. [Ivan] did not employ the negligent surveyor.

Although there are exceptions to the requirement of privity, none apply. Those exceptions involve claims where the injured party reasonably relies on the erroneous survey. Plaintiff was not relying on the erroneous survey when removing the stake.

Since there can be no breach of contract, plaintiffs' action can proceed if founded on tort law. "[T]o establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom." Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The issue of whether a duty exists is a question of law for the courts. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989)[.] The duty does not extend to persons who do not rely on the transaction. It was unforeseeable to [SHA] that Sosic would rely on the survey. More important, [Ivan] did not rely on [SHA]'s survey.

{¶ 10} In September 2020, the trial court issued a nunc pro tunc journal entry to clarify that the complaint against the appellees was dismissed with prejudice, resulting in a final, appealable order. The matter remains pending against defendant John Susnik.

{¶ 11} The appellants now appeal from the trial court's judgment.

II. Law and Analysis

A. Sufficiency of Pleadings

{¶ 12} In their first assignment of error, the appellants argue the trial court erred by applying a heightened pleading standard that has been expressly rejected by this court. In their second assignment of error, the appellants argue the trial court erred in holding that a professional may not be held liable by a third-party for professional negligence whose reliance is justifiably foreseen. In their third assignment of error, the appellants argue the trial court erred by holding the complaint does not state a claim for negligent supervision.

{¶ 13} Collectively, the forgoing assignments of error assert that the trial court (1) failed to adequately apply the notice-pleading standard set forth under Civ.R. 8(A)(1), (2) erroneously implied that the absence of a contract between the appellants and SHA relieved the appellees of tort liability, and (3) improperly determined that the complaint did not set forth a claim for negligent supervision. We address these assignments of error together because they are related.

{¶ 14} We review a ruling on a motion for judgment on the pleadings de novo. Coleman v. Beachwood, 8th Dist. Cuyahoga No. 92399, 2009-Ohio-5560, ¶ 15. Motions for judgment on the pleadings are governed by Civ.R. 12(C), which states:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.

{¶ 15} Unlike a motion for summary judgment where the parties are permitted to submit certain evidentiary materials for the court's review, the determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the complaint. Peterson v. Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973). Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. Burnside v. Leimbach, 71 Ohio App.3d 399, 403, 594 N.E.2d 60 (10th Dist.1991).

{¶ 16} Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true; and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his or her claim that would entitle him or her to relief. State ex rel Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Thus, the granting of judgment on the pleadings is only appropriate where the plaintiff has failed to allege a set of facts that, if true, would establish the defendant's liability. Chromik v. Kaiser Permanente, 8th Dist. Cuyahoga No. 89088, 2007-Ohio-5856, ¶ 8, citing Walters v. First Natl Bank of Newark, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982).

{¶ 17} Regarding the factual allegations supporting the claims against the appellees, we note that "under the notice pleading requirements of Civ.R. 8(A)(1), the plaintiff is only required to plead sufficient, operative facts to support recovery under her claims." Moncrief v. Bohn, 2014-Ohio-837, 9 N.E.3d 508, ¶ 22 (8th Dist.). However a well-pled complaint must include factual allegations going to each element of the claim, and conclusory statements without any factual allegations in support are insufficient. Hendrickson v. Haven Place, Inc., 8th Dist....