[Cite as Donahue v. Hall, 2016-Ohio-3237.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
JACK W. DONAHUE, : OPINION
Plaintiff-Appellant, :
CASE NO. 2015-T-0125
- vs - :
ORVAL D. HALL, et al., :
Defendants-Appellees. :
Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2014 CV 01993.
Judgment: Affirmed.
Daniel S. White, Daniel S. White, Esq., 34 Parmelee Drive, Hudson, OH 44067 (For
Plaintiff-Appellant).
John D. Falgiani, Jr., P.O. Box 8533, Warren, OH 44484 (For Defendants-Appellees).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Jack W. Donahue, appeals from the November 5, 2015
judgment entry of the Trumbull County Court of Common Pleas granting summary
judgment in favor of appellees, Orval D. Hall and Virginia M. Hall. For the following
reasons, we affirm the judgment of the trial court.
Facts & Procedural History
{¶2} In November 2013 appellant purchased a residential property from
appellees in Niles, Ohio. Appellant did not obtain a professional inspection of the
residence as a condition or contingency in the performance of the Real Estate Purchase
Contract. The Contract indicates appellant received and reviewed a copy of the
Residential Property Disclosure Form (“RPD”) before execution. In the body of the
RPD, appellees indicated they did not have actual knowledge of any water, moisture, or
foundation issues. The following language is also found on the front of the RPD:
THIS FORM IS NOT A WARRANTY OF ANY KIND BY THE
OWNER OR BY ANY AGENT OR SUBAGENT REPRESENTING
THE OWNER. THIS FORM IS NOT A SUBSTITUTE FOR ANY
INSPECTIONS. POTENTIAL PURCHASERS ARE
ENCOURAGED TO OBTAIN THEIR OWN PROFESSIONAL
INSPECTION(S). [Emphasis sic.]
{¶3} Approximately one year subsequent to the purchase, appellant filed a
three-count complaint against appellees, alleging that shortly after moving into the
residence, he began to experience severe problems related to water infiltration in his
basement which required extensive repair work. In the first count, appellant accused
appellees of knowingly making false and fraudulent representations concerning the
property with the purpose of inducing appellant to purchase the property (fraudulent
inducement). Count two accused appellees of failing to disclose and/or concealing the
defects despite having knowledge of the defects and a duty to disclose (fraud). The
third count stated appellees mistakenly represented a lack of knowledge regarding any
defects and that appellant was induced to purchase the property in the belief those
representations were true (mutual mistake of fact).
{¶4} Appellees subsequently filed a motion for summary judgment, to which
they attached answers to interrogatories, a copy of the Contract and RPD, and a copy
of a written estimate purportedly obtained by appellant for foundation repair to the
2
property. Appellant filed a brief in opposition and his own notarized affidavit that
reiterated certain statements of belief found in his complaint.
{¶5} The trial court granted appellees’ motion for summary judgment in their
favor on all three counts. In its entry, the trial court stated that despite appellant’s
affidavit, “there is no evidence before the Court to suggest, let alone support,
[appellant’s] position that [appellees] fraudulently concealed or misrepresented the
condition of the real estate exchanged in the transaction. [Appellant] refused to procure
an inspection of the property prior to the closing of the sale and he has failed to produce
any expert support in advancement of his position here.”
{¶6} Appellant appealed the grant of summary judgment. While this appeal
was pending, counsel for appellees filed a suggestion of death, stating Mr. Hall passed
away on February 23, 2016. Pursuant to App.R. 29(A), this court issued a magistrate’s
order stating the appeal shall continue and be determined as if Mr. Hall was not
deceased.
{¶7} Appellant has assigned one error for our review:
{¶8} “The trial court’s decision to grant the appellees’ motion for summary
judgment constitutes reversible error.”
Standard of Review
{¶9} Summary judgment is appropriate under Civ.R. 56(C) when (1) there is no
genuine issue of material fact remaining to be litigated; (2) the moving party is entitled to
judgment as a matter of law; and (3) it appears from the evidence that reasonable
minds can come to but one conclusion and, viewing the evidence in favor of the
3
nonmoving party, that conclusion favors the moving party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327 (1977).
{¶10} The moving party bears the initial burden to inform the trial court of the
basis for the motion and to identify those portions of the record that demonstrate there
is no genuine issue of material fact to be resolved in the case. Dresher v. Burt, 75 Ohio
St.3d 280, 292 (1996). “If this initial burden is met, the nonmoving party then bears the
reciprocal burden to set forth specific facts which prove there remains a genuine issue
to be litigated, pursuant to Civ.R. 56(E).” Fed. Home Loan Mtge. Corp. v. Zuga, 11th
Dist. Trumbull No. 2012-T-0038, 2013-Ohio-2838, ¶12, citing Dresher, supra, at 293.
{¶11} We review a trial court’s decision on a motion for summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, this court
conducts an independent review of the evidence and arguments that were before the
trial court without deference to the trial court’s decision. Brown v. Cty. Commrs. of
Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993).
Fraudulent Misrepresentation & Fraudulent Concealment
{¶12} In his complaint, appellant labeled his first two causes of action as
“fraudulent inducement” and “fraud.” His arguments and the trial court’s judgment,
however, were based on theories of fraudulent misrepresentation and fraudulent
concealment. Appellant argues the pleadings clearly indicate a genuine issue of
material fact exists as to whether appellees lied, “particularly concerning the affirmative
written representations of material fact they made when selling their home.”
{¶13} The Contract at issue contained an “as is” clause, which provided that
appellant’s failure to cause inspection to be made to the property “shall be construed as
4
a waiver by the Buyer and of his acceptance of the property in its ‘AS IS’ condition
without further repair obligation to anyone.” Appellant then initialed the Contract
acknowledging an independent inspection was recommended, but that he declined to
cause an inspection before accepting the property.
{¶14} Although an “as is” contract does relieve the seller of any duty to disclose
latent defects, it does not preclude causes of action for fraudulent misrepresentation or
fraudulent concealment. Goddard v. Stabile, 185 Ohio App.3d 485, 2009-Ohio-6375,
¶28-29 (11th Dist.); see also Thaler v. Zovko, 11th Dist. Lake No. 2008-L-091, 2008-
Ohio-6881, ¶37-38. The doctrine of caveat emptor (i.e., “buyer beware”) also does not
preclude actions based on fraud. Goddard, supra, at ¶25.
{¶15} To prevail upon a claim of fraudulent misrepresentation, the injured party
must establish the following: (1) a representation (or concealment, where there is a duty
to disclose); (2) material to the transaction; (3) made falsely—with knowledge of its
falsity or with utter disregard and recklessness as to its truth or falsity; (4) with the intent
of misleading another into relying on it; (5) justifiable reliance; and (6) a resulting injury
proximately caused by the reliance. Id. at ¶30 (citations omitted).
{¶16} Likewise, a successful claim of fraudulent concealment requires “‘(1)
actual concealment of a material fact; (2) with knowledge of the fact concealed; (3) and
intent to mislead another into relying upon such conduct; (4) followed by actual reliance
thereon by such other person having the right to so rely; (5) and with injury resulting to
such person because of such reliance.’” Thaler, supra, at ¶39, quoting Chamar v.
Schivitz, 11th Dist. Lake No. 2002-L-181, 2004-Ohio-1957, ¶13.
5
{¶17} The only document attached to appellant’s complaint was a copy of the
RPD. In the body of the RPD, appellees indicated they did not have actual knowledge
of any of the following: (1) “previous or current water leakage, water accumulation,
excess moisture or other defects to the property, including but not limited to any area
below grade, basement or crawl space”; (2) “water or moisture related damage to floors,
walls or ceilings as a result of flooding; moisture seepage; moisture condensation; ice
damming; sewer overflow/backup; or leaking pipes, plumbing fixtures, or appliances”;
(3) “previous or current movement, shifting, deterioration, material cracks/settling (other
than visible minor cracks or blemishes) or other material problems with the foundation,
basement/crawl space, floors, or interior/exterior walls”; (4) “previous or current flooding,
drainage, settling or grading or erosion problems affecting the property.”
{¶18} In his complaint, appellant made the following allegations:
5. Each of these representations was wholly and in every respect
false. In truth, the Plaintiff experienced severe problems related to
the undisclosed defects referenced above. Due to the
aforementioned defects, the home required extensive repair work.
6. The Plaintiff was wholly unfamiliar with matters pertaining to the
above-described problems, which could only be determined and/or
ascertained by persons familiar with the conditions at the property
based on their ownership and/or occupation of it. Due to these
facts, the Plaintiff placed full confidence in the representations
made by the Defendants and relied wholly and completely on them.
***
9. By reason of the falsity of the representations the property has
many defects and is not suitable for the Plaintiff’s use of it as a
residence [and] is also not worth the price the Plaintiff agreed to
pay for it.
***
6
16. Shortly after moving into the property, the Plaintiff began to
experience severe problems related to water infiltration [in] his
basement.
17. Due to the aforementioned defects, the home required
extensive repair work.
18. The Defendants failed to disclose and/or concealed the
aforementioned defects despite having knowledge of the same.
***
20. The Defendants intentionally failed to disclose the defects as
mentioned above.
21. The Defendants intentionally concealed said defects from the
Plaintiff.
22. The Plaintiff has been damaged by the Defendants’ failure to
disclose the defects, the Defendants’ concealment of the defects,
and the Defendants’ misrepresentations, and the Plaintiff will
continue to suffer damages.
{¶19} In their motion for summary judgment, appellees stated that appellant’s
claims must fail because he failed to show any evidence that appellees (1)
misrepresented or concealed a material fact, (2) had knowledge of any concealment or
false representation, or (3) intended to mislead appellant. Appellees further stated that
appellant had produced a purported estimate for repairs, which they attached to their
motion, but he had not provided any evidence of actual damages proximately caused by
any fraud on the part of appellees. The purported estimate was not authenticated nor
did it include any information as to the extent, if any, of water damage to the basement
or foundation issues.
{¶20} Also attached to appellees’ motion for summary judgment were answers
to interrogatories, which showed the absence of any genuine issue of material fact to
support appellant’s fraud claims. Specifically, appellees acknowledged that they had
7
the basement foundation excavated and waterproofed when they purchased the house
in 1981 as a precaution to avoid water problems. Although they heard from their
neighbors that the previous owners had water problems, they did not observe any water
problems at the time of purchase nor did they have any issues during the entire 20
years they lived in the house. In fact, they stated, “[t]he lower level of our home was
used daily by everyone in the family. Most of our time was spent in the lower level. * * *
We entertained there and had our Christmas tree set up in this room also. Our
children’s bedrooms and bathroom were off of the family room also. We considered this
the main room in our house.”
{¶21} We find appellees met their initial burden of informing the trial court of the
basis for their motion and identifying the portions of the record that demonstrate the
absence of any genuine issue of material fact regarding fraudulent intent, concealment,
misrepresentation, or proximately caused damages.
{¶22} Appellant attached a self-serving affidavit to his brief in opposition to the
motion for summary judgment, in which he restated the allegations and beliefs
contained in his complaint. No other documents were attached, and he did not point to
any evidence already in the record to support his claim that appellees fraudulently
misrepresented or concealed facts material to the real estate purchase. Although his
brief is replete with legal arguments that would provide him relief if his claim was
established, a nonmoving party cannot survive a motion for summary judgment simply
by making unsupported assertions in a self-serving affidavit. See Citibank, NA v.
Eckmeyer, 11th Dist. Portage No. 2008-P-0069, 2009-Ohio-2435, ¶60. We therefore
8
agree with the trial court that appellant failed to set forth any evidence that proved a
genuine issue of material fact remained to be litigated with regard to these claims.
Mutual Mistake of Fact
{¶23} Appellant’s third cause of action was for “mutual mistake of fact,” wherein
he alternatively alleged that appellees mistakenly represented a lack of knowledge as to
water or foundation issues in the basement. As a result of this alleged mistake, he
argues he was induced to purchase the property in the belief that the representations
were true.
{¶24} “[A] buyer is entitled to rescission of a real estate purchase contract where
there is a mutual mistake as to a material part of the contract and where the
complaining party is not negligent in failing to discover the mistake.” Reilley v.
Richards, 69 Ohio St.3d 352, 352-353 (1994). “A mistake is material to a contract when
it is ‘a mistake * * * as to a basic assumption on which the contract was made [that] has
a material effect on the agreed exchange of performances.’” Id. at 353, quoting 1
Restatement of the Law 2d, Contracts, Mistake, Section 152(1), at 385 (1981). This
rule only applies to situations where the parties are mistaken as to a material fact in
existence at the time of contracting. Doctor v. Marucci, 11th Dist. Lake No. 2013-L-056,
2013-Ohio-5831, ¶21, citing Mollenkopf v. Weller, 10th Dist. Franklin No. 03AP-1267,
2004-Ohio-5539, ¶15.
{¶25} We find this court’s decision in Doctor v. Marucci applicable to the case
sub judice. In addressing the appellant’s mutual mistake argument in that case, we
held:
[A]ppellants failed to establish the home had previously been
damaged by water, particularly during the time appellees owned the
9
property. * * * Appellants’ mutual-mistake argument presumes the
home had an existing water problem at the time of the sale about
which neither party was aware and, as a result, they each
mistakenly assumed no problem existed. Appellants’ argument
consequently assumes what the evidence failed to establish;
namely, that there was an existing water problem at the time of the
sale. Without evidence of a water problem at or before the time of
purchase, appellants’ argument is structurally flawed.
Id. Likewise here, appellant provided no evidence establishing an existing water
problem at the time of sale. We therefore agree with the trial court that summary
judgment was appropriate on appellant’s allegation of mutual mistake, in favor of
appellees, as he failed to establish the existence of a genuine issue of material fact.
{¶26} Appellant’s sole assignment of error is without merit.
{¶27} The judgment of the Trumbull County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
10