Bockelman v. Griffin

[Cite as Bockelman v. Griffin, 2022-Ohio-439.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY

MARK L. BOCKELMAN, et al., CASE NO. 2021-T-0032

Plaintiffs-Appellees,
Civil Appeal from the
-v- Court of Common Pleas

DELORES GRIFFIN,
Trial Court No. 2019 CV 00529
Defendant/Third Party
Plaintiff-Appellant,

-v-

NORTHWOOD REALTY
SERVICES, et al.,

Third Party Defendants-
Appellees.

OPINION

Decided: February 14, 2022
Judgment: Affirmed in part, reversed in part, and remanded

Robert M. Platt, Jr. and Michael P. Walton, Gessner & Platt Co., LPA, 212 West Main
Street, Cortland, OH 44410 (For Plaintiffs-Appellees).

William A. Carlin and Mark W. Biggerman, Carlin & Carlin, 29325 Chagrin Boulevard,
Suite 305, Pepper Pike, OH 44122 (For Defendant/Third Party Plaintiff-Appellant).

Mark L. Rodio, Frantz Ward LLP, 200 Public Square, Suite 3000, Cleveland, OH 44114
(For Third Party Defendants-Appellees).

MATT LYNCH, J.

{¶1} Defendant/third party plaintiff-appellant, Dolores Griffin, appeals the

Judgments of the Trumbull County Court of Common Pleas, granting summary judgment
in favor of plaintiffs-appellees, Mark and Sheri Bockelman (collectively “the Bockelmans”),

and in favor of third party defendants-appellees, Northwood Realty Services and David

Carpenter (collectively “Northwood Realty”). For the following reasons, the judgment of

the court below is affirmed in part, reversed in part and remanded.

{¶2} On March 25, 2019, the Bockelmans filed a Complaint for fraudulent

inducement against Griffin, alleging that she had made false and fraudulent

representations to them in the course of negotiating the sale of her residence located at

478 Youngstown Kingsville Road in 2017.

{¶3} On May 17, 2019, Griffin answered and filed a Third Party Complaint

against Northwood Realty for indemnity.

{¶4} All parties moved for summary judgment.

{¶5} On June 2, 2021, the trial court granted summary judgment in favor of the

Bockelmans and Northwood Realty. The court’s statement of the evidence is not

disputed:

[O]n October 17, 2013, the Trumbull County Sanitary Engineer’s
Department sent a letter to Griffin informing her that her residence
was subject to an assessment in the amount of $27,259.61 for the
Little Squaw Creek Interceptor Phase 4 Sanitary Sewer Project
Trumbull County Project 19-S-02D. Griffin admitted to living in the
residence at that time and continued to have exclusive use of the
residence until September 2014. On November 4, 2017[,] Griffin
signed a Real Estate Purchase Contract and the State of Ohio
Residential Property Disclosure Form. On the Real Estate Purchase
Contract, at Line 70, the form contains a provision that states: “Seller
has not received notice of future assessable improvements unless
noted ________.” Griffin left the space blank. Griffin initialed and
dated the bottom of that page and signed at the end. Griffin’s
Realtor[,] David Carpenter, an agent for Northwood Realty Services,
also signed the agreement. On the Real Property Disclosure Form,
on Section (L) entitled “Zoning/Code/Violations/Assessments/
Homeowner’s Association” the form asks “Do you know of any
violations of building or housing codes, zoning ordinances affecting
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 the property or any nonconforming uses of the property?” Griffin
checked the box “Yes” and wrote in the blank “Buyer has to tie into
sewer line at road.” * * * On November 7, 2018, Plaintiffs Mark and
Sheri Bock[el]man received the final notice of assessment from the
Trumbull County Commissioners confirming the assessment amount
of $27,259.61 and advising that the entire amount must be paid by
December 7, 2018[,] or the assessment would be certified by the
County Auditor for collection on the real estate tax bill over a period
of twenty years with a fixed annual percentage rate of 2.467%.

{¶6} Based upon the foregoing record, the trial court granted the Bockelmans’

and Northwood Realty’s motions for summary judgment and denied Griffin’s motion for

summary judgment.

{¶7} On July 1, 2021, Griffin filed a Notice of Appeal. On appeal she raises the

following assignments of error:

[1.] The trial court committed prejudicial error in granting Appellees’,
Mark and Sheri Bockelman’s, Motion for Summary Judgment and
finding that the Appellant committed fraud regarding the sale of
Appellant’s residential property for failing to disclose a sewer
assessment.

[2.] The trial court committed prejudicial error in granting
Northwood’s, the Third Party Defendant’s Motion for Summary
Judgment.

{¶8} “Summary judgment is a procedural device to terminate litigation and to

avoid formal trial where there is nothing to try.” (Citation omitted.) Norris v. Ohio Standard

Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982). Summary judgment is appropriate

when “there is no genuine issue as to any material fact and * * * the moving party is

entitled to judgment as a matter of law,” i.e., when “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.” Civ.R. 56(C). “A decision granting or

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denying a motion for summary judgment is reviewed de novo.” A.J.R. v. Lute, 163 Ohio

St.3d 172, 2020-Ohio-5168, 168 N.E.3d 1157, ¶ 15.

{¶9} “The elements of an action in actual fraud are: (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 upon it, (e) justifiable reliance upon the

representation or concealment, and (f) a resulting injury proximately caused by the

reliance.” (Citation omitted.) Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55,

514 N.E.2d 709 (1987); Pedone v. Demarchi, 8th Dist. Cuyahoga No. 88667, 2007-Ohio-

6809, ¶ 29 (“[t]he elements of fraudulent inducement are essentially the same as those

for fraudulent misrepresentation, fraudulent concealment, and fraudulent nondisclosure”).

{¶10} In Ohio, “every person who intends to transfer any residential real property

* * * shall complete all applicable items in a property disclosure form” as prescribed by

statute. R.C. 5302.30(C). “Each disclosure of an item of information that is required to

be made in the property disclosure form * * * shall be made * * * in good faith,” meaning

“honesty in fact in a transaction involving the transfer of residential real property.” R.C.

5302.30(E)(1) and (A)(1). “A transferor of residential real property is not liable in damages

in a civil action for injury, death, or loss to person or property that allegedly arises from

any error in, inaccuracy of, or omission of any item of information required to be disclosed

in the property disclosure form if the error, inaccuracy, or omission was not within the

transferor’s actual knowledge.” R.C. 5302.30(F)(1). “A seller’s failure to disclose the

information required by the disclosure form does not necessarily mean that the seller has

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committed fraud; however, when the seller intentionally fails to disclose a material fact on

the disclosure form with the intention of misleading the buyer, and the buyer relies upon

the disclosure form, the seller is liable for any resulting injury.” (Citation omitted.) Evon

v. Walters, 11th Dist. Geauga No. 2020-G-0266, 2021-Ohio-3475, ¶ 16.

{¶11} Upon review of the record, we conclude that genuine issues of material fact

exist as to Griffin’s knowledge of the assessments and intent in failing to disclose them

as well as the Bockelmans’ justifiable reliance on the nondisclosure. We note that the

record before the trial court (as well as this court) consisted of various documents

attached to the Complaint and Griffin’s Answers to Plaintiffs’ Requests for Admissions.

There was no affidavit or deposition testimony before the court.

{¶12} A letter from the Trumbull County Sanitary Engineer’s Department

addressed to Griffin at the Youngstown Kingsville Road residence advised her that, on

November 19, 2013, there would be “a public hearing * * * for the Little Squaw Creek

Interceptor Phase 4 Sanitary Sewer Project” and that “the tentative mainline construction

assessment for your parcel is $22,230.26” and that there would be “a service connection

assessment cost of $5,020.35.” Griffin denied receiving this letter.

{¶13} The Residential Property Disclosure Form, signed by Griffin on March 24,

2017, and by the Bockelmans on November 4, 2017, indicates that there were no “recent

or proposed rules or regulations of, or the payment of any fees or charges associated

with this property,” but also that “Buyer has [to] tie into new sewer line at road.” The Form

states that the property is serviced by “Private Well” and “Septic Tank” and that “City

water is available at Road.” The Real Estate Purchase Contract, dated November 4,

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2017, did not indicate that Griffin as seller “received notice of future assessable

improvements.”

{¶14} With respect to Griffin’s knowledge of the assessments, there is a letter from

2013 advising her of tentative assessments which she denied receiving although she is

aware of the need to connect to the new sewer line. Construing this evidence most

strongly in Griffin’s favor, an issue exists as to exactly what she knew about the Sewer

Project. We cannot accept the Bockelmans’ suggestion that awareness of the necessity

of tieing in establishes her knowledge of the assessments as a matter of law. It is certainly

possible to infer knowledge of the assessments from her awareness of the need to

connect to the new lines but, in summary judgment, the Bockelmans are not entitled to

the benefit of that inference. Nor is her denial of the receipt of the letter inconsistent with

her responses in the Disclosure Form, so that it may be discounted as self-serving. See

Carter-Jones Lumber Co. v. Smartland, LLC, 11th Dist. Portage No. 2021-P-0042, 2021-

Ohio-3708, ¶ 27. The Bockelmans also cite to a second letter by the Sanitary Engineer’s

Department to Griffin in 2016 but this letter is not in the record before this court. The

reference to this letter in the Bockelmans’ brief is “Pl. Disc. (May 17 2021),” which

indicates that the 2016 letter was not part of the record before the trial court. Rather, the

record before this court is simply inadequate to demonstrate, as a matter of law, what

Griffin knew or even what she claimed to know at the time of the sale. Harless v. Willis

Day Warehousing Co. Inc., 54 Ohio St.2d 64, 66 fn. 2, 375 N.E.2d 46 (1978) (“[t]he main

purpose of the summary judgment statute is to enable a party to go behind allegations in

the pleadings and assess the proof in order to see whether there is a genuine need for

trial”) (citation omitted).

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 {¶15} Likewise, it cannot be established that, by failing to disclose the

assessments, Griffin intended to deceive the Bockelmans. It follows, of course, that if

Griffin lacked knowledge of the assessments, she could not have had the intent of

deceiving the Bockelmans by failing to disclose them. With respect to intent, we further

note that Griffin advised the Bockelmans of the need to connect to the municipal sewer

line which was the reason for the assessments. Informing the Bockelmans of the need

to connect is inconsistent with an intent to conceal from them the costs of connecting.

{¶16} Conversely, if it is proper to infer from Griffin’s disclosure of the need to

connect that she knew of the assessments, then an issue exists as to whether the

Bockelmans’ reliance on the statement that there were no assessments was justifiable.

Arguably, their knowledge of the need to connect put them on notice of possible

assessments. The Bockelmans claim, however, that their reliance was justified because

they “engaged in due diligence during their title search and inspection of the property”

and “were unable to find anything regarding a sewer assessment.” Bockelmans’ Brief at

13. Such a claim is not supported by the limited record before this court (and is not even

alleged in the Complaint). As the movants, it was the Bockelmans’ burden to establish

that they were entitled to judgment as a matter of law with appropriate evidentiary

materials. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.

{¶17} In sum, Griffin’s disclosure of the need for the Bockelmans to tie into the

municipal sewer line coupled with her failure to disclose the assessments relating to the

tie in does not prove fraud as a matter of law. Rather, this partial disclosure of the

information required by R.C. 5302.30 precludes summary judgment by raising issues as

to her knowledge and intent as well as the reasonableness of the Bockelmans’ reliance.

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Shannon v. Fischer, 12th Dist. Clermont No. CA2020-05-022, 2020-Ohio-5567, ¶ 25

(“Ohio courts have determined that a seller’s failure to ‘fully disclose’ latent and patent

defects creates a genuine issue of material fact rendering summary judgment

inappropriate”); Goddard v. Stabile, 185 Ohio App.3d 485, 2009-Ohio-6375, 924 N.E.2d

868, ¶ 31 (vendors’ representation that there was “‘small dampness’” in the basement but

that it “‘does not flood’ * * * demonstrates that the * * * disclosure was not made with the

intent of misleading [the buyer]”).

{¶18} The first assignment of error is with merit.

{¶19} In the second assignment of error, Griffin argues that the trial court erred in

granting summary judgment in favor of Northwood Realty on her indemnification claim.

{¶20} The trial court ruled that Griffin “failed to show how she is entitled to

indemnity against [the] Third Party Defendants.” We agree.

{¶21} “The rule of indemnity provides that ‘where a person is chargeable with

another’s wrongful act and pays damages to the injured party as a result thereof, he has

a right of indemnity from the person committing the wrongful act, the party paying the

damages being only secondarily liable; whereas, the person committing the wrongful act

is primarily liable.’” (Citation omitted.) Reynolds v. Physicians Ins. Co. of Ohio, 68 Ohio

St.3d 14, 16, 623 N.E.2d 30 (1993). “When a person is secondarily liable due to his

relationship to the other party, and is compelled to pay damages to an injured party, he

may recoup his loss for the entire amount of damages paid from the one who is actually

at fault, and who, in fact, caused the injuries.” Id.

{¶22} On appeal, Griffin argues that Northwood was her realtor and a signer “with

regard to the Purchase Agreement,” “on notice of the assessment,” and “in a superior

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position with regard to understanding the intricacies of the transaction.” Therefore, a

genuine issue of material fact exists as to whether there should be “contribution among

joint tortfeasors.” Appellant’s brief at 14. Contribution among joint tortfeasors is distinct

from a claim for indemnity and has not been pled by Griffin. Even if it had, the doctrine

of contribution has no application in the present case and Griffin and Northwood are not

joint tortfeasors. See R.C. 2307.25(A) (“[t]here is no right of contribution in favor of any

tortfeasor against whom an intentional tort claim has been alleged and established”).

{¶23} Griffin has failed to demonstrate that Northwood is in any sense chargeable

with her purported fraud. The Disclosure Form prepared by Griffin provides: “The

statements in this form are made by the owner and are not the statements of the owner’s

agent or subagent.” See R.C. 5302.30(D)(1) (“the representations [in the disclosure form]

are made by the transferor and are not the representations of the transferor’s agent or

subagent”). Similarly, the Purchase Agreement advises the buyer that “neither

Northwood Realty Services not its Agents have made any representations, warranties, or

agreements, express or implied, * * * about assessments.” In any case, Griffin cites no

authority (and this court is aware of none) for the proposition that the party primarily liable

for a wrongful act may seek indemnity from a party secondarily liable. For the contrary,

see, Maryland Cas. Co. v. Frederick Co., 142 Ohio St. 605, 612-613, 53 N.E.2d 795

(1944).

{¶24} The second assignment of error is without merit.

{¶25} For the foregoing reasons, the grant of summary judgment is affirmed with

respect to Northwood Realty and reversed with respect to the Bockelmans, and this

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matter is remanded for further proceedings consistent with this opinion. Costs shall be

taxed equally between Griffin and the Bockelmans.

MARY JANE TRAPP, J.,

JOHN J. EKLUND, J.,

concur.

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