## Facts

- William and Bonnie Oltmer moved to a new city and hired Ed Drobisch & Co., Realtors to help them find a home.
- Drobisch’s sales agent, Juanita Jones, worked with the Oltmers and showed them multiple houses.
- Jones showed them a home owned by Elaine and Joseph Zamora without telling the Oltmers that Jones was Elaine Zamora’s aunt.
- Jones told the Oltmers that the house was built by a “very reputable” builder who was “one of the best in the area.”
- In fact, Joseph Zamora had never built any structure before this house.
- The house had a severe slope—about 13 to 15 inches higher on one side than the other.
- During the showing, Mr. Oltmer said it felt like he was “walking uphill,” and Jones replied that it could not be so because the house was new.
- Jones allegedly disparaged other houses she showed the Oltmers, steering them toward the Zamora house.
- After purchase, measurements confirmed the extent of the slope.
- Jones allegedly suggested the Oltmers try to resell the house and implied they should do so without telling future buyers about the slope problem.
- The Oltmers sued the sellers, the broker, and Jones, alleging fraud and misrepresentation based on affirmative statements and nondisclosure, including nondisclosure of Jones’s family relationship to the sellers.
- A jury returned a verdict for plaintiffs on one fraud count, but could not reach a verdict on additional misrepresentation counts; the trial court then entered judgment for defendants on those misrepresentation counts, and the Oltmers appealed.

## Issues

1. Whether a real estate agent’s favorable statements about a builder and a home—framed as opinion—can be treated as actionable misrepresentation when they imply undisclosed facts and the agent has an undisclosed adverse interest.
2. Whether the evidence on the misrepresentation counts was sufficient to require submission to a jury, making it error for the trial court to enter judgment for the broker and agent after the jury could not agree.

## Decision

- The appellate court reversed the judgment entered in favor of Drobisch and Jones on the misrepresentation counts and remanded for further proceedings.
- The court concluded that, on this record, the agent’s statements were not insulated as mere “puffing” as a matter of law; a fact-finder could treat them as implying false supporting facts.
- The court held the plaintiffs presented enough evidence of misrepresentation and reliance to permit a jury to decide liability, rather than having the claims resolved by judgment for defendants.

## Legal Principles

- A statement cast as an opinion may be actionable if, under the circumstances, it reasonably implies that the speaker knows undisclosed facts that support the opinion and that those facts are not inconsistent with it (Restatement (Second) of Torts § 539).
- Whether an “opinion” may be understood as implying facts depends in part on whether the recipient reasonably believes the speaker has an adverse interest; a hidden adverse interest can change how the statement is understood.
- In real estate transactions, a broker or agent’s statements about quality, reputation, or condition may support misrepresentation claims when the speaker has special knowledge, supplies assurances in response to expressed concerns, or omits information that would bear on the truth of what was said.
- Evidence that an agent concealed a conflict (such as a family tie to the seller) may support a finding that the buyer’s reliance on the agent’s assurances was reasonable.
- When the evidence permits competing inferences on falsity, knowledge, intent to induce reliance, reliance, and damages, the misrepresentation claim should be decided by the jury, not by judgment for defendants.

## Conclusion

Because the Oltmers offered evidence that their agent hid a family relationship to the sellers, made assurances about the builder and the home despite contrary facts, and dismissed an obvious “walking uphill” concern tied to a serious slope defect, the appellate court held that the misrepresentation claims presented jury questions and reversed the judgment for the broker and agent, remanding for further proceedings.


Oltmer v. Zamora, 418 N.E.2d 506 (1981)