[Cite as Fowler v. Fimiani, 2017-Ohio-9333.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


PATRICIA L. FOWLER,                              :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2017-L-026
        - vs -                                   :

CAROLYN J. FIMIANI,                              :

                 Defendant-Appellee.             :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV
001782.

Judgment: Affirmed.


Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094
(For Plaintiff-Appellant).

Anthony J. Aveni, Cannon, Aveni & Malchesky Co., L.P.A., 41 East Erie Street,
Painesville, OH 44077 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Patricia L. Fowler (“Patricia”), appeals the summary judgment

of the Lake County Court of Common Pleas in favor of appellee, Carolyn J. Fimiani

(“Carolyn”). At issue is whether a genuine issue of material fact exists on Patricia’s

fraudulent misrepresentation and fraudulent concealment claims in connection with her

purchase of Carolyn’s home. For the reasons that follow, we affirm.
      {¶2}   On October 19, 2015, Patricia filed a complaint against Carolyn alleging

breach of contract (first cause of action) and fraudulent misrepresentation/concealment

(second cause of action). For her breach-of-contract claim, Patricia alleged that, in the

course of her purchase of Carolyn’s home in Mentor in 2014, Carolyn did not fully

disclose all incidents of flooding in the basement of her home. For her fraud claim,

Patricia alleged Carolyn made false representations concerning, or concealed, latent

defects regarding water damage in her home to induce Patricia to buy it. Carolyn filed

an answer denying the material allegations of the complaint.

      {¶3}   The statement of facts that follows is derived from the evidence submitted

by the parties on summary judgment. Carolyn, who is a 77-year old widow, testified in

deposition that she and her now deceased husband moved into their residence on

Chillicothe Road in 1973, and in the following years, raised their four children there.

She said that a 100-year flood occurred in Mentor in 2006. As a result of this flooding,

Carolyn’s basement – along with all the other basements in the area – had water

damage. Carolyn and her husband hired a contractor to extract the water, replace

drywall, and replace the tile flooring. In March 2007, Carolyn’s husband passed away.

In an effort to be proactive and prevent future problems, in the spring of 2007, Carolyn

hired a contractor to waterproof the front and sides of the home.

      {¶4}   In 2009, Carolyn discovered some dampness in the basement so she

hired another contractor who again waterproofed the front and sides of her home. Later

that year, Carolyn saw some seepage near the back wall and also had that wall

waterproofed.




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        {¶5}   Carolyn said the 2009 waterproofing appeared to resolve the leakage

problem because, for several years thereafter, there was no water in the basement.

        {¶6}   Then, in 2013, Mentor experienced a heavy rain that caused flooding

generally in the area. Carolyn said there was 4” to 6” of water at one side of the

basement. Thereafter, she hired a contractor, who removed the baseboards in that

area, drilled some holes in the drywall under the baseboards and ran fans to dry out the

area.    The contractor then re-installed the baseboards, painted the drywall, and

replaced some tile.

        {¶7}   In 2014, Carolyn decided to downsize and listed the property for sale with

Howard Hanna. On the Ohio Residential Disclosure Form, when asked if there was any

prior or current water intrusion in the basement, Carolyn answered, “yes.” When asked

to “describe and indicate any repairs completed,” she wrote: “Water Flooding 2006 due

to ‘100 year flooding.’ Not sewer issue. Had front and sides of house waterproofed in

2007 and had back of house waterproofed in 2009.” Patricia admitted in discovery that

the only representations Carolyn made about the condition of the basement were those

contained in the disclosure form.

        {¶8}   When asked in her deposition why she did not mention the 2013 flooding

incident, Carolyn testified she thought it was an “exception” because it was an “act of

God.” She also said she did not think of it when filling out the form because she thought

the water issue was resolved.

        {¶9}   Carolyn conceded that when she sold the house, there was no visible

evidence of flooding or water damage in the basement. However, contrary to Patricia’s

argument, Carolyn never testified this lack of evidence was due to steps she took to




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conceal the prior water intrusion and damage. Carolyn said she left the remaining repair

materials (caulk, paint, and tiles) in the basement in case they were ever needed again.

      {¶10} The parties signed a purchase agreement for the house in September

2014, which stated the house was being sold “as is,” and included a contingency based

on Patricia’s acceptance of the results of a professional general home inspection.

      {¶11} In the 15-page report prepared by Patricia’s inspector, Mark Bornhorst, he

stated, with respect to his findings and recommendations concerning the basement:

      {¶12} Horizontal, hairline crack noted across rear wall. * * * Horizontal
            cracks indicate possible frost action or soil expansion problems
            have occurred in the past. This is typically due to poor backfill and
            drainage along foundation wall. Excavation of foundation and
            backfill with free drainage gravel should have been done in
            waterproofing the foundation.      Verify that wall was properly
            backfilled with owner or waterproofing contractor. (Emphasis
            added.)

      {¶13} There is no evidence Patricia followed her inspector’s recommendation to

inquire into whether the foundation was properly waterproofed. Instead, following the

inspection, she signed an amendment to the purchase offer, which removed the

inspection contingency on the condition that Carolyn perform certain work to the house

and pay an additional $600 toward Patricia’s closing costs.

      {¶14} Patricia stated in affidavit that in June 2015, during a rainstorm, water

poured in through the basement walls and accumulated on the basement floor. She

said that if she had been aware of the water problems and damage in 2008 and 2013,

she would not have bought the home.

      {¶15} On October 31, 2016, Carolyn filed a motion for summary judgment

supported by evidentiary materials.    Patricia filed a brief in opposition along with a

motion to strike some of the documents attached to Carolyn’s summary-judgment



                                           4
motion as not having been properly authenticated. Thereafter, Carolyn filed a reply brief

along with a motion to supplement her summary-judgment motion by including an

affidavit authenticating the documents she submitted on summary judgment.

       {¶16} The trial court entered judgment granting Carolyn’s motion to supplement

her motion for summary judgment; denying Patricia’s motion to strike Carolyn’s

summary-judgment materials; and granting summary judgment in favor of Carolyn.

       {¶17} Patricia appeals the trial court’s judgment, asserting two assignments of

error. For her first, she alleges:

       {¶18} “The trial court erred in allowing the supplementation of the Appellee’s

Motion for Summary Judgment without affording the Appellant any opportunity to

respond to the supplementary evidence.”

       {¶19} Patricia argues the trial court erred in granting Carolyn’s motion to

supplement her summary-judgment motion with an authenticating affidavit and in

denying Patricia’s motion to strike the exhibits Carolyn submitted on summary

judgment, without giving Patricia an opportunity to respond to the affidavit.

       {¶20} This court applies an abuse of discretion standard of review in ruling on a

motion to strike evidence. Hicks v. Cadle Co., 11th Dist. Trumbull No. 2014-T-0103,

2016-Ohio-4728, ¶23. An abuse of discretion is the trial court’s “‘failure to exercise

sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶62, quoting Black's Law Dictionary 11 (8th Ed.2004).

       {¶21} In Carolyn’s motion for summary judgment, she attached eight documents

without an affidavit authenticating them. These documents were:

       {¶22} Exhibit A: Residential Property Disclosure Form




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       {¶23} Exhibit B: Purchase Agreement

       {¶24} Exhibit C: Mortgage

       {¶25} Exhibit D: Inspector’s report

       {¶26} Exhibit E: Amendment to Offer to Purchase and Removal of Contingency

       {¶27} Exhibit F: Deed

       {¶28} Exhibit G: Plaintiff’s Discovery Responses

       {¶29} Exhibit H: Defendant’s Discovery Responses

       {¶30} Patricia moved to strike six out of the eight documents (excluding Exhibits

G and H, the parties’ discovery responses) attached to Carolyn’s summary-judgment

motion. In her motion, Patricia argued these documents must be stricken from the

motion for summary judgment because they were either not specifically authorized by

Civ.R. 56(C) or authenticated by an affidavit per Civ.R. 56(E).

       {¶31} In Carolyn’s motion to supplement her summary-judgment motion, she

attached her affidavit authenticating or providing certified copies of the six documents

mentioned in Patricia’s motion to strike.

       {¶32} Civ.R. 56(C) 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

that the moving party is entitled to judgment as a matter of law.” Further, Civ.R. 56(E)

provides in part: “Sworn or certified copies of all papers * * * referred to in an affidavit

shall be attached to or served with the affidavit.”




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       {¶33}   While Exhibits A, B, and E (disclosure form, purchase agreement, and

amendment to offer) were not authenticated by an affidavit, they were attached to

Patricia’s complaint. Moreover, Patricia alleged in her complaint, and Carolyn admitted

in her answer, that these exhibits were true and accurate copies of the originals. Thus,

these documents were properly submitted as pleadings or admissions per Civ.R. 56(C)

and did not require authentication by affidavit.

       {¶34} It is undisputed that Exhibit D, the inspection report, was produced by

Patricia in response to Carolyn’s combined interrogatories and requests for production

of documents.     For the reasons that follow, the report did not also need to be

authenticated by affidavit.

       {¶35} The Ohio Supreme Court has stated “there is no requirement in Civ.R. 56

that any party submit affidavits to support a motion for summary judgment. See, e.g.,

Civ.R. 56(A) and (B).” Dresher v. Burt, 75 Ohio St.3d 280, 298 (1996). “There is a

requirement, however, that a moving party, in support of a summary judgment motion,

specifically point to something in the record that comports with the evidentiary materials

set forth in Civ.R. 56(C).” Dresher, supra. The materials listed in that rule are “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any * * *.” Thus, a motion for

summary judgment may be supported by affidavit or other material(s) listed in Civ.R.

56(C). Taylor v. Uhl, 9th Dist. Lorain No. 13CA010441, 2014-Ohio-3090, ¶17.

       {¶36} For example, in Johnson v. Sears Roebuck & Co., 12th Dist. Clermont No.

CA2000-03-017, 2000 WL 1145481 (Aug. 14, 2000), the court stated that documents

may be considered on summary judgment where they are authenticated by affidavit or




                                             7
identified as having been provided in response to interrogatories. Id. at *3. Here, since

Patricia’s expert report was part of her answers to Carolyn’s interrogatories, the report

was properly considered on summary judgment and did not need to be authenticated by

affidavit.

        {¶37} In any event, “[i]t has also been held that a court does not commit

reversible error by considering documents not in accordance with Civ.R. 56(C) or (E)

where there is no suggestion that the documents are not authentic or that the result

would be different if the documents were properly authenticated.” Johnson, supra, at

*2, citing Interntl. Bhd. of Elec. Workers v. Smith, 76 Ohio App.3d 652, 660 (6th

Dist.1992); Knowlton Co. v. Knowlton, 10 Ohio App.3d 82, 87 (10th Dist.1983), reversed

on other grounds at 63 Ohio St.3d 677 (1992). Here, Patricia never argued that the

copy of her expert report attached to Carolyn’s motion for summary judgment was not

authentic.

        {¶38} Next, while the copies of the mortgage (Exhibit C) and the deed (Exhibit F)

attached to Carolyn’s summary-judgment motion were not certified, they were irrelevant

to the issues on summary judgment, namely, fraudulent misrepresentation/concealment

and justifiable reliance. In addition, Patricia never argued that these exhibits were not

authentic.

        {¶39} Patricia’s reliance on Hicks, supra, is misplaced as the facts in that case

are distinguishable. Hicks (who had filed a summary-judgment motion) filed a reply

brief in which he raised new arguments not previously asserted and included new

evidentiary material that was not previously attached. The trial court did not give the

nonmovant an opportunity to respond to the new material. This court in Hicks stated




                                            8
that when a new argument or new evidence is raised in a reply brief on summary

judgment, the proper procedure is to strike the supplement or to allow the nonmovant

an opportunity to respond to it. Id. at ¶18. This court stated that the danger in allowing

a new argument or new evidence to be presented in a reply brief is that the nonmovant

does not have an opportunity to respond.

          {¶40} Here, Carolyn did not present any new argument or new evidence in her

supplement; only an affidavit that authenticated (or presented certified copies of) the

same documents presented by Carolyn in her initial summary-judgment motion. Unlike

Hicks, here, Patricia does not dispute she was well aware of each of the documents

submitted on summary judgment. Thus, none of these documents was new to Patricia

and she had a full opportunity to address these documents in her opposition to

summary judgment.

          {¶41} In view of the foregoing, even if the challenged exhibits were not filed in

compliance with Civ.R. 56 and Patricia did not have an opportunity to address Carolyn’s

authenticating affidavit, Patricia was not prejudiced. This is because she never argued

the exhibits attached to Carolyn’s summary-judgment motion were not authentic or that

the result would have been different if the exhibits were properly authenticated.      We

therefore hold the trial court did not abuse its discretion in denying Patricia’s motion to

strike.

          {¶42} For her second assignment of error, Patricia alleges:

          {¶43} “The trial court erred in granting summary judgment in favor of the

Appellee where genuine issues of material fact remained for trial as to the Appellant’s

claim for fraudulent concealment and fraudulent misrepresentation.”




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      {¶44} Appellate courts review a trial court’s grant of summary judgment de novo.

Alden v. Kovar, 11th Dist. Trumbull Nos. 2007-T-0114 and 2007-T-0115, 2008-Ohio-

4302, ¶34.

      {¶45} In order for summary judgment to be granted, the moving party must

prove that:

      {¶46} (1) no genuine issue as to any material fact remains to be litigated,

      {¶47} (2) the moving party is entitled to judgment as a matter of law, and

      {¶48} (3) it appears from the evidence that reasonable minds can come to
            but one conclusion, and viewing such evidence most strongly in
            favor of the nonmoving party, that conclusion is adverse to the
            party against whom the motion for summary judgment is made.
            Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996).

      {¶49} [T]he moving party bears the initial responsibility of informing the
            trial court of the basis for the motion, and identifying those portions
            of the record which demonstrate the absence of a genuine issue of
            fact on a material element of the nonmoving party’s claim. The
            “portions of the record” to which we refer are those evidentiary
            materials listed in Civ.R. 56(C), such as the * * * depositions, etc.,
            that have been filed in the case. (Emphasis omitted.) Dresher,
            supra, at 296.

      {¶50} If the moving party satisfies its burden, then the nonmoving party has the

burden to provide evidence demonstrating the existence of a genuine issue of material

fact. If the nonmoving party does not satisfy this burden, then summary judgment is

appropriate. Civ.R. 56(E).

      {¶51} “The elements which constitute the basis for a claim of fraudulent

misrepresentation are: ‘(1) a representation, or where there is a duty to disclose,

concealment of a fact, (2) which is material to the transaction at hand, (3) 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, (4) with the intent of misleading



                                           10
another into relying on it, (5) justifiable reliance upon the representation or concealment,

and (6) a resulting injury proximately cause by the reliance.’” Kimball v. Duy, 11th Dist.

Lake No. 2002-L-046, 2002-Ohio-7279, ¶23, quoting Cardi v. Gump, 121 Ohio App.3d

16, 22 (8th Dist.1997).

         {¶52} Thus, “[t]o prevail upon a claim for fraudulent misrepresentation, the

injured party must establish justifiable reliance upon representations made by the

defendants.” Massa v. Genco, 11th Dist. Lake No. 89-L-14-162, 1991 WL 26761, *7

(Mar. 1, 1991).

         {¶53} Further, to prevail on a claim of fraudulent concealment, the plaintiff has

the burden to prove: “(1) an actual concealment[;] (2) of a material fact[;] (3) with

knowledge of the fact concealed[;] (4) with intent to mislead another into relying upon

such conduct[;] (5) followed by actual reliance thereon by such other person having the

right to so rely[;] (6) and with injury resulting to such person because of such reliance[.]”

Bagdasarian v. Lewis, 11th Dist. Lake No. 92-L-171, 1993 WL 419081, *2 (June 4,

1993).

         {¶54} As noted above, the parties’ purchase agreement contained a clause

stating that Patricia was accepting the property “as is.” An as is clause in a real estate

purchase agreement relieves the seller from the duty to disclose latent defects. Kimball,

supra, at ¶19. As a result, with an as is clause, a buyer is barred from bringing an

action for fraudulent nondisclosure. Id. at ¶20.       This court has also held that the

presence of an as is clause in a purchase agreement bars a buyer’s claim for breach of

contract. Tutolo v. Young, 11th Dist. Lake No. 2010-L-118, 2012-Ohio-121, ¶52. The

presence of an as is clause limits the buyer’s claims against the seller to claims of




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fraudulent misrepresentation and fraudulent concealment. Id. at ¶51. In other words,

the seller must have actively misrepresented or concealed facts.

       {¶55} We therefore agree with the trial court’s finding, which Patricia does not

appeal, that her claims for breach of contract and fraudulent non-disclosure fail as a

matter of law because she purchased the home “as is.”

       {¶56} Patricia argues that her claims for fraudulent misrepresentation and

fraudulent concealment were not barred by the as is clause because Carolyn was

aware of existing problems in the home and failed to disclose them. In opposition,

Carolyn argues that Patricia was not justified in relying on any statements or omissions

in the disclosure form since Patricia’s own inspector pointed out various defects related

to the water-leakage problem.

       {¶57} In the instant case, the purchase agreement was contingent upon

completion of a professional, general home inspection that was acceptable to Patricia.

She attempts to minimize the significance of this contingency by repeatedly referring to

it as a simple “walk through inspection,” which refers to the perfunctory walk-through

Inspection to which buyers are typically entitled shortly before title transfer to verify the

property is in the same condition it was in when the purchase agreement was signed.

Patricia also incorrectly argues “the purpose of this contingency was of a limited nature

and solely to confirm and verify the representations expressly made by [Carolyn].”

There is no factual or legal support for this argument.

       {¶58} This court has previously held that “[a] buyer cannot be said to have

justifiably relied upon misrepresentations made by the seller where the agreement is

clearly contingent upon the inspection rather than any alleged representations.” Kimball




                                             12
supra, at ¶24, quoting Massa, supra, at *8.        Thus, even if Patricia could establish

Carolyn’s knowledge and misrepresentation of a material defect in the basement, her

claim for fraudulent misrepresentation would still fail, as a matter of law, due to her

inability to show justifiable reliance on the misrepresentation.

       {¶59} With respect to Patricia’s fraudulent-concealment claim, while it is true that

after the 2013 flooding incident, Carolyn hired a contractor who dried the affected area

with fans and then painted the drywall and replaced some tile, Carolyn testified she

believed the water problem in the basement had been corrected in 2009 and that the

2013 incident was an anomaly that she did not expect would recur. Thus, it made

sense that she would hire a contractor to perform this work to improve the cosmetic

appearance of the basement. In and of itself, this did not provide any evidence that

Carolyn had this work done to conceal water damage from prospective buyers in the

event she might try to sell the home sometime in the future. In short, there is no

evidence in this record that Carolyn did anything in an attempt to defraud Patricia.

       {¶60} Contrary to Patricia’s argument, Carolyn did not testify that she purposely

failed to disclose the 2008 or 2013 instances of water intrusion or that she made any

representations on the disclosure form that were untrue or fraudulent.

       {¶61} In any event, Patricia would not have had a right to rely on any attempt to

conceal by Carolyn because Patricia’s inspector had no difficulty inspecting the

foundation and basement. In fact, he discovered a horizontal crack across the rear

basement wall, which, he said, indicated possible frost action or soil expansion

problems had occurred in the past. He also said this is typically due to poor backfill and

drainage along the foundation wall. Further, he said that excavation of the foundation




                                             13
and backfill with free-draining gravel should have been done in waterproofing the

foundation.   And, he advised Patricia to verify with the owner or waterproofing

contractor that the wall was properly backfilled.

       {¶62} However, instead of following-up on her inspector’s advice or terminating

the contract, which she had the right to do per the inspection contingency, Patricia

proceeded with the purchase and used the report to negotiate a better deal wherein

Carolyn would perform certain repairs on the property and pay an additional $600

toward Patricia’s closing costs. We agree with the following finding of the trial court:

       {¶63} Plaintiff’s claims for fraudulent misrepresentation and concealment
             fail as a matter of law because Plaintiff’s purchase was contingent
             on the home inspection, and therefore Plaintiff could not have
             justifiably relied on any misrepresentations in the Disclosure Form
             or any attempts to conceal the damage from the 2013 water
             intrusion. Finally, Plaintiff has not raised an issue of material fact
             with respect to “actual concealment” of the 2013 water intrusion,
             because the home inspection put her on notice of possible “poor
             backfill and drainage.”

       {¶64} We therefore hold the trial court did not err in entering summary judgment

in favor of Carolyn on Patricia’s fraudulent misrepresentation/concealment claim.

       {¶65} For the reasons stated in this opinion, the assignments of error are

overruled. It is the order and judgment of this court that the judgment of the Lake

County Court of Common Pleas is affirmed.



COLLEEN MARY O’TOOLE, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.




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