[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




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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.




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       {¶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.

              ***




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             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.




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