[Cite as McNabb v. Hoeppner, 2011-Ohio-3224.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
WILLIAM McNABB, et al., : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiffs-Appellants : Julie A. Edwards, J.
:
-vs- : Case No. 10CA124
:
:
FRANCES A. HOEPPNER, et al., : OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from Richland County
Court of Common Pleas Case No.
08-CV-2130
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 22, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
BRYON D. CORLEY DAVID D. CARTO
3 N. Main Street, Suite 714 Weldon, Huston & Keyser, LLP
Mansfield, Ohio 44902 76 North Mulberry Street
Mansfield, Ohio 44902-1241
[Cite as McNabb v. Hoeppner, 2011-Ohio-3224.]
Edwards, J.
{¶1} Appellants, William and Angela McNabb, appeal a summary judgment of
the Richland County Common Pleas Court dismissing their claims against appellee
Frances Hoeppner for fraud and negligent misrepresentation and against appellee
AccuSpec Inspection Service for breach of contract, negligence and breach of warranty.
STATEMENT OF FACTS AND CASE
{¶2} In 2008, Hoeppner listed her property at 1955 Banyan Drive, Mansfield,
for sale. In March of 2008, Hoeppner filled out a residential property disclosure form
which indicated that she had no knowledge of any current leaks or other material
problems with the roof or rain gutters, or of any other water intrusions on the property.
The disclosure form indicated that the owner’s statement was based on the owner’s
“actual knowledge” and the owner had not inspected generally inaccessible areas. The
form also included the following language:
{¶3} “THIS STATEMENT IS NOT A WARRANTY OF ANY KIND BY THE
OWNER OR BY ANY AGENT OR SUBAGENT REPRESENTING THE OWNER OF
THE PROPERTY. THIS STATEMENT IS NOT A SUBSTITUTE FOR ANY
INSPECTIONS. POTENTIAL PURCHASERS ARE ENCOURAGED TO OBTAIN
THEIR OWN PROFESSIONAL INSPECTION.”
{¶4} Appellants entered into a purchase agreement with Hoeppner in July,
2008. In the purchase agreement, appellants acknowledged that they were purchasing
the property “in its present physical condition after examination and inspection” by the
purchaser. The agreement further provided:
Richland County App. Case No. 10CA124 3
{¶5} “Purchaser further acknowledges that Purchaser(s) are relying solely upon
such examination and inspection with reference to condition, value, character, and
dimensions of property, improvements, component systems and fixtures. Purchaser
acknowledges that neither Seller, nor Seller’s Agents(s) have made any representations
or warranties upon which Purchaser has been induced to rely; rather Seller and Seller’s
Agent(s) have encouraged Purchaser to conduct a thorough and independent
inspection(s) of the premises.”
{¶6} On July 28, 2008, appellants entered into a contract with appellee
AccuSpec for inspection of the house. The agreement specifically provided that the
inspector was not required to move any items that impeded access or limited visibility,
and the inspection was limited to “readily accessible areas of the property.” The
agreement, and the later-issued inspection report, both provided that the inspection
report:
{¶7} “IS NOT INTENDED TO BE USED AS A GUARANTEE OR WARRANTY,
EXPRESS OR IMPLIED, REGARDING THE ADEQUACY, PERFORMANCE,
CONDITION, STRENGTH OF ANY INSPECTED STRUCTURE, ITEM OR SYSTEM.
THE INSPECTION AND REPORT ARE NOT INTENDED TO REFLECT THE VALUE
OF THE PREMISES, NOR TO MAKE ANY REPRESENTATION AS TO THE
ADVISABILITY OR INADVISABILITY OF THE PURCHASE, MARKET ABILITY OR
THE SUITABILITY FOR USE.”
{¶8} Bruce Baker, owner of AccuSpec, inspected the property on July 28,
2008. When he issued his report to appellants he noted several areas of concern
regarding the condition of the roof, including prior cured leaks, amateur workmanship,
Richland County App. Case No. 10CA124 4
erosion, exposed or lifted nails, moss and mildew, poorly patched flashing and tar on
flashing. Hoeppner agreed to pay appellants $1250.00 at closing to cover the estimated
cost of roof repairs.
{¶9} After taking possession of the house, appellants discovered an attic crawl
space and a basement crawl space that had not been inspected. Appellants found
plastic sheeting in the attic crawl space and a sump pump and operating dehumidifier in
the basement crawl space. After a second inspection of the home, AccuSpec noted
dampness in these areas but the inspector stated that his general findings in his first
inspection report were not materially affected by this second inspection.
{¶10} Appellants filed the instant action against Hoeppner and AccuSpec. The
court dismissed the complaint on summary judgment. Appellants assign a single error
on appeal:
{¶11} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT TO APPELLEES WHERE GENUINE ISSUES OF MATERIAL
FACT EXISTED AND THE APPELLEES WERE NOT ENTITLED TO SUMMARY
JUDGMENT AS A MATTER OF LAW.”
{¶12} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must
refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
Richland County App. Case No. 10CA124 5
that the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from the evidence or stipulation, and only from the
evidence or stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.”
{¶13} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the moving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the non-moving
party to set forth specific facts demonstrating that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶14} We first address whether the trial court erred in granting summary
judgment to appellee Hoeppner. Appellants argue in their brief that disputed facts exist
as to whether Hoeppner had knowledge of the problems in the two crawl spaces and a
duty to disclose such defects.
Richland County App. Case No. 10CA124 6
{¶15} An “as is” clause in a real estate contract places the risk upon the
purchaser as to the existence of defects and relieves the seller of any duty to disclose
latent defects. Rogers v. Hill (1998), 124 Ohio App.3d 468, 471; Funk v. Durant, 155
Ohio App.3d 99, 103, 2003-Ohio-5591. The “as is” contract provision cannot be relied
upon to relieve the sellers of liability on a claim for fraudulent misrepresentation. Id. at
103. While R. C. 5302.30 specifically states that the disclosure form required by the
statute is not a warranty, it can form the basis of a claim for false representation if the
seller makes false statements to the buyer therein, which are relied upon by a buyer.
Id.
{¶16} In summary, as long as the seller does not engage in fraud, an “as is”
clause bars any claims brought by a buyer. Scafe v. Property Restorations, Ltd.,
Cuyahoga App. No. 84447, 2004-Ohio-6296.
{¶17} To prove fraud, a plaintiff must show that there was: (a) a representation,
or where there is a duty to disclose, concealment of a fact, (b) which is material to the
transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter
disregard and recklessness as to whether it is true or false that knowledge may be
inferred, (d) with the intent of misleading another into relying on it, (e) justifiable reliance
upon the representation or concealment, and (f) resulting injury proximately caused by
the reliance. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, paragraph
two of the syllabus.
{¶18} In the instant case, the contract contained an “as is” clause. Appellee
Hoeppner therefore had no duty to disclose the existence of the moisture issues in the
crawl spaces, and is only liable if she fraudulently misrepresented the condition of the
Richland County App. Case No. 10CA124 7
home when she stated on her disclosure form that she was not aware of any current
leaks or water intrusions on the property.
{¶19} There is no evidence to demonstrate that Hoeppner had knowledge of any
current water problems on the property. Hoeppner’s affidavit states that she and her
late husband purchased the house in 1988. From that time until shortly before his death
in May of 2006, her husband took care of repairs and maintenance for the home,
including replacing the roof in 1991 after a leak was discovered. Thereafter she was not
aware of any problems until October, 2006, when she hired a contractor to repair a leak
above the bedroom. She averred that at no time had she been in or viewed the attic
crawl space above the pantry, nor had she seen her husband in that area. Appellant
William McNabb admitted at his deposition that he had no evidence that appellee knew
the statements in the disclosure form concerning current leaks was false at the time she
made it. Tr. 23. He testified that he had no evidence that appellee Hoeppner
deliberately concealed the door to the basement crawl space. Tr. 76.
{¶20} In addition to presenting no evidence that Hoeppner knew her statements
concerning the condition of the roof were false, appellants have not demonstrated
justifiable reliance. Appellants were alerted to a series of problems concerning the roof
and accepted $1,250.00 from Hoeppner to repair the roof. Appellant admitted that the
access panel to the attic crawl space was visible to him when he and his wife looked at
the home prior to entering into the purchase agreement, and he did not ask appellee
Hoeppner for permission to look in that area, nor did he point this out to the home
inspector. Tr. 56-57. The purchase agreement specifically states that appellants were
not relying on any representations made by the seller.
Richland County App. Case No. 10CA124 8
{¶21} Appellants also claimed negligent misrepresentation on the part of
Hoeppner. The doctrine of negligent misrepresentation provides recovery where: 1) a
party who, in the course of his business, profession or employment, or in any other
transaction in which he has a pecuniary interest, provides false information; 2) for the
guidance of another party in its business transaction, 3) causing the other party to suffer
pecuniary loss, 4) as a result of justifiable reliance on the information, 5) if the one
providing the information failed to exercise reasonable care or competence in obtaining
and communicating the information. Delman v. City of Cleveland Hts., (1989), 41 Ohio
St.3d 1, 4, 534 N.E.2d 835. The elements for negligent misrepresentation require a
plaintiff who sought guidance with respect to his business transactions from the
defendant. Nichols v. Ryder Truck Rental (June 23, 1994), Cuyahoga App. No. 65376,
unreported.
{¶22} As discussed with regard to the fraud claim, there is no evidence in the
record to demonstrate that Hoeppner’s statement that she was not aware of any current
leaks or water intrusions on the property was false. Further, appellants cannot show
that they sought her advice or guidance with respect to a business transaction.
Hoeppner and appellants were engaged in an arms-length business transaction, there
was no special relationship between them whereby appellants were specifically relying
on Hoeppner for advice. There is nothing in the record to suggest that Hoeppner failed
to exercise reasonable care in obtaining or communicating the information in the
disclosure form where the form specifically stated that it was based on her actual
knowledge and not on an inspection of generally inaccessible areas.
Richland County App. Case No. 10CA124 9
{¶23} We next address whether summary judgment was appropriate as to
AccuSpec. Appellants argue that AccuSpec did not take the proper amount of time to
complete the inspection because the inspector was accommodating Hoeppner’s
schedule, and also argues generally that the inspection did not reveal problems in the
home.
{¶24} There is no evidence to suggest that the time AccuSpec spent in the home
was in violation of the contract or standards in the industry. AccuSpec’s contract with
appellants specifically stated that the inspector was not required to move items of
personal property that impeded access or limited visibility, and the inspection was
limited to readily accessible areas of the property. Despite admitted knowledge of the
attic access panel in the pantry, appellants did not specifically request that the inspector
move items in the pantry to access and inspect that area. Further, after appellants
discovered the crawl spaces, AccuSpec returned to the property, inspected these areas,
and found nothing that materially altered the findings in the original inspection report.
The trial court did not err in finding that appellants did not present evidence that
AccuSpec breached its contract with them nor did appellants present evidence of a
standard of care breached by AccuSpec to support their claim for negligence. Further,
appellants failed to present any evidence of warranties made by AccuSpec concerning
the condition of the property and the contract between the parties stated that the
inspection report was not intended as a warranty regarding the condition of the property.
Richland County App. Case No. 10CA124 10
{¶25} The assignment of error is overruled.
{¶26} The judgment of the Richland County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0412
[Cite as McNabb v. Hoeppner, 2011-Ohio-3224.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM McNABB, et al., :
:
Plaintiffs-Appellants :
:
:
-vs- : JUDGMENT ENTRY
:
FRANCES A. HOEPPNER, et al., :
:
Defendants-Appellees : CASE NO. 10-CA-124
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to appellants.
_________________________________
_________________________________
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JUDGES