[Cite as Carrico v. Bower Home Inspection, L.L.C., 2017-Ohio-4057.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
TIM CARRICO, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiffs-Appellants : Hon. Earle E. Wise, J.,
:
-vs- :
: Case No. 16CA21
BOWER HOME INSPECTION, LLC, :
ET AL :
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Mount Vernon
Municipal Court, Case No. 16CVH00063
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 30, 2017
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
PHILLIP LEHMKUHL NOEL ALDEN
101 North Mulberry Street 121 East High Street
Mount Vernon, OH 43050 Mount Vernon, OH 43050
Knox County, Case No. 16 CA 21 2
Gwin, P.J.
{¶1} Appellants appeal the September 26, 2016 judgment entry of the Mount
Vernon Municipal Court granting summary judgment.
Facts & Procedural History
{¶2} In September of 2015, appellants Tim and Whitney Carrico purchased the
house, garage, and land located at 1 Grandview Drive in Mount Vernon, Ohio. Prior to
the purchase of the property, appellants hired appellees Chris Bower and Bower Home
Inspection, LLC to perform a home inspection, specifically to inspect whether there was
any visible evidence of wood-destroying insects. The obligation of appellants to purchase
the property was contingent upon receipt of the report by appellees.
{¶3} Appellees issued a written report stating that, at the time of the inspection,
there was no visible evidence of wood-destroying insects. Subsequent to the purchase
of the property, appellants found evidence of damage in the crawl-space caused by wood-
destroying insects.
{¶4} Appellants filed a complaint against appellees on January 27, 2016 for:
breach of fiduciary duty, negligence, breach of contract, and violations of the Ohio
Consumer Sales Practices Act. Appellees filed an answer on February 26, 2016.
{¶5} On August 1, 2016, appellees filed a motion for summary judgment.
Appellees alleged in their motion for summary judgment that appellants entered into a
valid and enforceable contract titled “Wood Destroying Insect Inspection Report” which
governs the obligations of the parties. Further, that, pursuant to the contract, appellees
had no duty to remove any portion of the home and inspect underneath it and thus
appellants cannot now argue appellees are liable because they did not remove the
Knox County, Case No. 16 CA 21 3
insulation and siding to discover termites in areas inaccessible at the time of the
inspection.
{¶6} Attached to appellees’ motion for summary judgment was Exhibit A, the
“Wood Destroying Inspection Report.” Exhibit A was not signed by appellants. The report
stated, “this report is indicative of the condition of the above identified structure(s) on the
date of inspection and is not to be construed as a guarantee or warranty against latent,
concealed, or future infestations or defects.” Further, that “based on a careful visual
inspection of the readily accessible areas of the structure(s) inspected * * *(A) No visible
evidence of wood-destroying insects was observed.” The report concluded no treatment
was recommended as there was no visible evidence of wood-destroying insects at the
time of inspection and stated that a part of the crawlspace was obstructed or inaccessible
due to the insulation and duct work/plumbing/wiring.
{¶7} The second page of Exhibit A contains the “scope and limitations of the
inspection” and states there is no warranty related to the report and the report is not a
guarantee or warranty as to the absence of wood-destroying insects or a structural
integrity report. Further, that “no inspection was made in areas which required the
breaking apart or into, dismantling, removal of any object, included but not limited to
moldings, floor coverings, wall coverings, sidings, fixed ceilings, insulation, furniture,
appliances, and/or personal possessions, nor were the areas inspected which were
obstructed or inaccessible for physical access on the date of inspection.”
{¶8} On August 19, 2016, the trial court granted appellees’ motion for summary
judgment because appellants failed to file a response. Appellants filed a Civil Rule 60(B)
motion on August 24, 2016. On August 31, 2016, the trial court granted appellants’ Civil
Knox County, Case No. 16 CA 21 4
Rule 60(B) motion and granted appellants leave to file a memorandum in opposition to
the motion for summary judgment.
{¶9} In their memorandum in opposition, appellants argued appellees’ Exhibit A
was not properly before the court because it was not signed and was not accompanied
by an affidavit. Appellants further argued appellees provided no proof that the damages
were latent or concealed, or that the damages occurred subsequent to September 3,
2015.
{¶10} Appellants attached to their memorandum in opposition to motion for
summary judgment the affidavit of Tim Carrico (“Carrico”). Carrico stated he hired
appellees to perform an inspection for evidence of infestation damages from wood-
destroying insects and, in reliance upon the report issued by appellees, he purchased the
property. Carrico averred that, subsequent to the purchase of the property, but within a
few months, he “personally saw evidence of damage from wood-destroying insects in
clearly visible areas of the crawlspace of the house.” Carrico stated the areas where he
initially saw evidence of damage from wood-destroying insects were not concealed,
hidden, or obstructed from view and were not latent or concealed. Further, that he did
not need to remove any moldings, floor coverings, wall coverings, fixed ceilings,
insulation, furniture, appliances, or personal possessions to initially find many areas
damaged by wood-destroying insects. Carrico averred that after finding many areas of
clearly visible and accessible damage from wood-destroying insects, further investigation
revealed damages in concealed areas also. Carrico stated his complaint is “premised
upon the failure to report blatant, obvious, massive, and readily observable damages to
the house and garage from wood-destroying insects over a period of years, not months.”
Knox County, Case No. 16 CA 21 5
{¶11} On September 12, 2016, appellees filed a motion for leave to plead to file a
reply brief to appellants’ memorandum in opposition. The trial court granted appellees’
motion on September 13, 2016 and set a non-oral hearing on September 23, 2016.
{¶12} Appellees filed a reply in support of the motion for summary judgment on
September 16, 2016. Appellees again attached Exhibit A, which was the same “Wood
Destroying Inspection Report” as they submitted with their motion for summary judgment,
but this copy was signed by appellants. Appellees also attached the affidavit of Chris
Bower (“Bower”), stating, “attached as Exhibit A is the signed contract entered into
between the parties I just procured from the closing company on Monday, September 12,
2016.” Bowers further averred there was no visible infestation or defects with the property
at the time of his review and there was no infestation or defects in areas that did not
require the breaking apart or into, dismantling, or removal of any object.
{¶13} The trial court issued a judgment entry granting appellees’ motion for
summary judgment on September 26, 2016. The trial court found no genuine issue of
material fact existed because: (1) the contract between the parties did not require
appellees to remove insulation and siding to discover termites in areas that were
inaccessible at the time of the inspection; (2) the contract was not a guarantee or warranty
against concealed or future infestations or defects; and (3) the defendants cannot be
negligent for failing to perform a duty they did not have according to the terms of the
contract.
{¶14} Appellants appeal the September 26, 2016 judgment entry of the Mount
Vernon Municipal Court and assign the following as error:
Knox County, Case No. 16 CA 21 6
{¶15} “I. THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR
SUMMARY JUDGMENT OF DEFENDANTS.”
{¶16} In their brief, appellants make two arguments. First, appellants contend the
trial court erred when, in granting appellees’ motion for summary judgment, it accepted
and considered the signed Exhibit A and Bower’s affidavit, which were presented for the
first time in appellees’ reply brief to the motion for summary judgment.
{¶17} “Typically reply briefs are restricted to matters in rebuttal, not new
arguments. The problem with allowing a new argument to be asserted in a reply in
support of the original motion is that it does not give the party opposing the motion the
opportunity to respond.” Buren v. Karrington Health, Inc., 10th Dist. Franklin No. 00AP-
1414, 2002-Ohio-206; Lawson v. Mahoning County Mental Health Board, 7th Dist.
Mahoning No. 10 MA 23, 2010-Ohio-6389. Allowing a new argument to be asserted in a
reply brief has been characterized as “summary judgment by ambush.” Intl. Fid. Ins. Co.
v. TC Architects, Inc., 9th Dist. Summit No. 23112, 2006-Ohio-4869. “When a new
argument is raised in a reply or supplemental motion for summary judgment, the proper
procedure is to strike the reply or supplemental motion or, alternatively, to allow the
opposing party to file a surreply.” Baker v. Coast to Coast Manpower, LLC, 3rd Dist.
Hancock No. 5-11-36, 2012-Ohio-2840.
{¶18} In this case, appellants did not attempt to strike the affidavit or exhibit, nor
did they seek leave to file a surreply. This Court has previously held that when an
appellant does not attempt to strike or seek leave to file a surreply, appellant waives any
error. Edwards v. Perry Twp. Board of Trustees, 5th Dist. Stark No. 2015CA00107, 2016-
Ohio-5125; Bank of New York Mellon v. Crates, 5th Dist. Licking No. 15-CA-70, 2016-
Knox County, Case No. 16 CA 21 7
Ohio-2700. Accordingly, we find appellants waived any error by failing to move to strike
Bower’s affidavit/Exhibit A or seeking leave to file a surreply.
{¶19} Appellants next contend the trial court erred in granting summary judgment
even if Bower’s affidavit and the signed Exhibit A are considered. We agree.
{¶20} Civ.R. 56 states, 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 of material fact and 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 mostly strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶21} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
Knox County, Case No. 16 CA 21 8
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d
271 (1984). A fact is material if it affects the outcome of the case under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d
1186 (6th Dist. 1999).
{¶22} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶23} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrates absence of a genuine issue of fact on a material element of the non-
moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once
the moving party meets its initial burden, the burden shifts to the non-moving party to set
forth specific facts demonstrating a genuine issue of material fact does exist. Id. The
non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
{¶24} In this case, the affidavits submitted are contradictory. Bower’s affidavit
states there was no infestation at the time of the inspection. Carrico’s affidavit avers that,
within a few months, he personally saw evidence of damage from wood-destroying
insects in clearly visible areas that was not concealed, hidden, or obstructed from view.
Further, that his complaint is premised upon the failure to report blatant, obvious,
Knox County, Case No. 16 CA 21 9
massive, and readily observable damages to the house and garage from wood-destroying
insects over a period of years, not months. Thus, we find there are genuine issues of
material fact as to when the damage occurred (either before or after the inspection report)
and whether the damages were latent or concealed.
{¶25} Accordingly, we find the trial court erred in granting summary judgment to
appellees. The September 26, 2016 judgment entry of the Mount Vernon Municipal Court
is reversed and the cause is remanded for further proceedings in accordance with this
opinion.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur