[Cite as Rodgers v. Sipes, 2012-Ohio-3070.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




GRANT RODGERS, ET AL.

        PLAINTIFFS-APPELLANTS,                            CASE NO. 3-11-19

        v.

DAVID M. SIPES,                                           OPINION

        DEFENDANT-APPELLEE.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 10-CV-0041

                                      Judgment Affirmed

                               Date of Decision: July 2, 2012




APPEARANCES:

        Shane M. Leuthold for Appellants

        Clifford J. Murphy for Appellee
Case No. 3-11-19


SHAW, P.J.

       {¶1} Plaintiff-appellants     Grant     Rodgers   and   Deidre   M.   Rodgers

(collectively “the Rodgers”) appeal the October 18, 2011 judgment of the

Common Pleas Court of Crawford County, Ohio in favor of defendant-appellee

David M. Sipes (“Sipes”) following a bench trial on claims of fraudulent

misrepresentation, fraudulent concealment and breach of contract.

       {¶2} In 2001 Sipes and his wife signed a contract with Nigh Builders for

the construction of a residence at 5651 Lincoln Highway in Bucyrus, Ohio. In the

years after the home was completed, Sipes and his wife spent part of the year

living at the property in Ohio and the other part of the year living in Florida.

While they stayed in Florida, various friends, relatives and neighbors would check

on the residence in their absence.

       {¶3} When Sipes’ wife died in 2006, he decided to sell the property in

Bucyrus. In preparing to sell the house, Sipes retained the services of a realtor,

Jerry Holden of Haring Realty, Inc. As part of the process of selling a home,

pursuant to R.C. 5302.30, Sipes filled out a Residential Property Disclosure Form

(“disclosure form”). On the disclosure form, Sipes checked that he did not know

of any current problems with the basement.

       {¶4} The Rodgers, who were residing in California, heard that Sipes’

property was for sale through some friends that lived in the area. The Rodgers had


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planned to relocate to Ohio for Grant Rodgers’ work. While Deidre Rodgers was

in Ohio, she made an appointment to look at Sipes’ property.

           {¶5} On September 6, 2006, Deidre Rodgers toured Sipes’ property. At

that time, Deidre, the realtor and Sipes were the only people present. After touring

the property, Deidre called her husband Grant and the Rodgers decided to

purchase Sipes’ property. The same day that Deidre Rodgers toured the home, she

signed a real estate purchase agreement (hereinafter “purchase agreement”) which

included, inter alia, a contingency that the Rodgers be able to sell their home. The

purchase agreement also contained language that the property was “being

purchased in its present physical condition after examination and inspection by

[the Rodgers],” and that the Rodgers would take the property “as is” should the

Rodgers not notify Sipes within 5 days after the expiration of a repair period for

defects.1 (Pl.’s Ex. 1); (Def.’s Ex. D).




1
    The clause containing this information reads as follows:

           15. Right to Cancel: If Seller is unwilling or unable to repair any defect or to provide the
           assurances described above during the repair period, Purchaser shall have the right at the
           Purchaser’s sole option, to cancel this contract, in which event the earnest money shall be
           handled as provided in Section 3 of this contract, and the parties shall be released from all
           other obligations. This right of cancellation shall be exercised, if at all, by giving written
           notice to Seller within 5 days after the expiration of the repair period.
                     Failure by Purchaser to cancel this contract within such 5-day period shall
           constitute a waiver by Purchaser of any uncured defects, and Purchaser shall take the
           property “as is” with respect to such defects. (Emphasis added) (Pl.’s Ex. 1); (Def.’s Ex.
           D).



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      {¶6} Attached and incorporated into the purchase agreement was the

disclosure form that had been filled out by Sipes stating, among other things, that

Sipes knew of no problems with the basement. The disclosure form also stated in

capital letters that it was not a warranty or a substitute for an inspection, and

encouraged the Rodgers to obtain a home inspection.

      {¶7} Prior to closing, the Rodgers had the realtor, who was acting in a dual-

agency capacity, recommend a home inspector. The realtor recommended F.

Michael Demeter (“Demeter”), dba of National Property Inspections. On October

19, 2006 Demeter conducted a pre-purchase home inspection with Grant Rodgers

and Sipes both present. Although Demeter did not inspect the roof as it was

raining that day, neither Demeter nor Grant Rodgers was in any way restricted by

Sipes from examining any part of the home or property.

      {¶8} During Demeter’s inspection, Sipes informed Grant Rodgers that the

sump pump had failed in 2004 causing the basement to flood. Sipes told Grant

Rodgers that was the only time Sipes had experienced any water in the basement.

Both Grant and Deidre said the basement was important to them because Grant

intended to make it his home office.

      {¶9} Demeter spent approximately 2-2.5 hours on the property.          After

Demeter finished the inspection he produced a 22 page report and issued a limited




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home warranty to the Rodgers.2 In the report, under Grading/Drainage, Demeter

mentioned having observed various positive degrees of slope running toward the

home. (Def.’s Ex. B). He suggested “building up level of earth at any low spots”

and “monitor[ing] ground water runoff.”3 Id. Demeter also noted that there was a

battery backup for the sump pump, saying “[i]t is this inspector’s experience that,

when battery back-up (sic) is present, it is because of the owner’s past

experiencing a flooded basement due to a power outage.” Id. at 13. In Demeter’s

report, he further marked that the sump pump in the basement was in “acceptable”

condition.4 Id. at 12.

        {¶10} Ultimately the Rodgers purchased Sipes’ property for a total of

$305,000. On or around November 16, 2006, the Rodgers took possession of the

property, and on November 17, 2006 the deed was transferred by Sipes. After

purchasing the property, the Rodgers had a 40’ by 50’ pole barn built

approximately thirty feet away from the home.                       The Rodgers also added an

overhang to the porch of the home in which six inch by six inch support posts

were sunk into the ground to support the overlay. The construction of these

structures was completed in December of 2006.



2
  The warranty only covered an enumerated list of issues, only up to the amount of $2500, and only after a
deductible was paid. Issuing the limited home warranty appears to be standard practice for this company
for anyone that has an inspection done.
3
  In the report, Demeter checked the boxes for both “Monitor Condition” and “Recommend Repairs.”
4
  The report defines acceptable as “[t]he item/system was performing its intended function at the time of
inspection.” (Def.’s Ex. B at 5).

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        {¶11} On January 5, 2007, for the first time the Rodgers noticed water in

the basement, leaking through the walls, draining into a floor drain located in the

middle of the basement floor.        According to Grant Rodgers, this problem

continued whenever there was a heavy rain. Grant Rodgers said there was water

in the basement 10-12 times per year and that it remained in the basement for 3-4

days each time. (Tr. at 138). The Rodgers testified that the water created a “rotten

egg” smell throughout the house, presumably from sulfur in the water. (Tr. at

128).

        {¶12} On January 25, 2010, the Rodgers filed a complaint in the Court of

Common Pleas of Crawford County against Sipes alleging fraudulent

misrepresentation, fraudulent concealment, negligent misrepresentation, negligent

nondisclosure and breach of contract.

        {¶13} On July 29, 2011 Sipes filed a motion for summary judgment. On

August 29, 2011 Sipes’ motion for summary judgment was denied. The case

proceeded to a bench trial September 13-14, 2011.

        {¶14} At trial, the Rodgers called Daniel Marinucci (“Marinucci”), an

architectural engineer, to testify as an expert witness. Marinucci testified that he

inspected the house and “based upon [his] education, [his] training, [his]

experience in the field of architectural engineering, construction, [and] residential

inspection” it was his opinion to a reasonable degree of certainty that the water


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removal system in the basement had been incorrectly designed and installed

causing water to seep through the walls. (Tr. at 35). Marinucci further testified

that the sump pump should have had another drainage pipe and as a result, it was

overworked and running constantly. Marinucci testified that he believed Sipes

knew about the problem. He also testified that the construction of the pole barn

and the overhang would have no effect on the basement drainage. Marinucci gave

the Rodgers an estimated cost of $61,035.00 to fix the problem and install the

needed dewatering system. (Pl.’s Ex. 10).5

        {¶15} Both Grant and Deidre Rodgers testified at trial about the water

problem in the basement. Grant testified that the first time he noticed water

seeping in through the walls in the basement it followed a stain pattern on the

floor. Grant testified that Sipes had told him prior to closing that stains on the

floor were from the carpet being glued to the floor before it was removed. Deidre

Rodgers testified that the smell from the water permeated the house to such a

degree that she found it impossible to entertain company. The Rodgers both

testified that they noticed no water leaking into the basement before January 5,

2007.

        {¶16} After Marinucci and both of the Rodgers testified, the Rodgers rested

their case. At the close of their case, the Rodgers dismissed their claims for

5
 Marinucci conducted his inspection in November of 2009. Marinucci testified that his estimate could now
be low and that the price could be substantially more at the time of trial as the cost of the materials had
gone up.

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Case No. 3-11-19


negligent misrepresentation and negligent nondisclosure, leaving their claims of

fraudulent misrepresentation, fraudulent nondisclosure, and breach of contract to

be adjudicated.

       {¶17} In his case-in-chief, Sipes testified and called several witnesses who

had been in, or worked on, the basement.         The witnesses were consistent in

testifying that they only were aware of water being in the basement on the one

occasion that the sump pump failed and had never seen water in the basement

otherwise.   At the close of Sipes’ case, the parties submitted written closing

arguments.

       {¶18} On October 18, 2011, the trial court filed its judgment entry finding

that the Rodgers had “failed to prove any fraud or any other cause of action that

would negate the clear terms of [the] contract.” (Doc. No. 26). Accordingly, the

trial court entered judgment in favor of Sipes and against the Rodgers on all claims

and dismissed their complaint.

       {¶19} It is from this judgment that the Rodgers appeal, asserting the

following assignments of error for our review.

                         ASSIGNMENT OF ERROR I

       THE COURT ERRED WHEN IT HELD THAT
       APPELLANT’S CLAIM WAS BARRED BY THE DOCTRINE
       OF CAVEAT EMPTOR

                         ASSIGNMENT OF ERROR II


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       THE COURT ERRED WHEN IT HELD THAT
       APPELLANT’S (SIC) FAILED TO PROVE ANY FRAUD OR
       ANY OTHER CAUSE OF ACTION THAT WOULD NEGATE
       THE CLEAR TERMS OF THE CONTRACT WITH
       APPELLEE.

       {¶20} In the interest of clarity, we elect to address the assignments of error

out of order.

                        Second Assignment of Error

       {¶21} In the Rodgers’ second assignment of error they claim that the trial

court erred in failing to find that the Rodgers proved fraud. Specifically the

Rodgers argue fraudulent misrepresentation and fraudulent concealment were

shown by a floor stain that mirrored the drainage pattern of water that had leaked

into the basement, which Sipes claimed came from carpet glue, and that Sipes

misrepresented this by stating on the disclosure form that he knew of no problems

with the basement. The Rodgers also claim that fraud was evident through the fact

that shelves were built in the basement apparently to keep things up off the floor,

through the fact that Sipes had previously had the sump pump fixed, and through

the fact that the Rodgers’ expert opined that the drainage system in the house had

been defectively designed and improperly installed.

       {¶22} In order to prove fraudulent misrepresentation, the Rodgers had to

establish: (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


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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 another into relying on it, (5) justifiable reliance upon the

representation or concealment, and (6) a resulting injury proximately caused by

the reliance. Melenick v. Mcmanamon, 8th Dist., Nos. 92453, 92675, 2010-Ohio-

1051, ¶ 25, citing Cardi v. Gump, 8th Dist. No. 71278, 121 Ohio App.3d 16, 22

(1997)

         {¶23} In order to prevail upon a claim of fraudulent concealment, the

Rodgers had to establish: (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 v. Zorvko, 11th Dist. No. 2008-L-091, 2008-Ohio-6881, ¶

39, quoting Masso v. Genco, 11th Dist. No. 89-L-14-162 (1999).

         {¶24} “The elements of fraud must be established by clear and convincing

evidence. Clear and convincing evidence is that measure or degree of proof that

will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.”     Rapport v. Kochovski, 5th Dist. No.

2009CA00055, 2009-Ohio-6880, ¶ 15, citing Cross v. Ledford, 161 Ohio St. 469

(1954). “The burden to prove fraud rests upon the party alleging the fraud.” Id.


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citing First Discount Corp. v. Daken, 75 Ohio App. 33 (1st Dist.1944), paragraph

seven of the syllabus.

       {¶25} Where there is conflicting evidence, an appellate court will not

substitute its own judgment for the trier-of-fact. Seasons Coal Co. v. Cleveland,

10 Ohio St.3d 77 (1984). Moreover, if there is sufficient evidence in the record

upon which the trial court could properly conclude that the Rodgers were unable

to prove their case by clear and convincing evidence, the trial court’s judgment

will not be reversed as being against the manifest weight of the evidence. Cross v.

Ledford, 161 Ohio St. 469 (1954).

       {¶26} Although the Rodgers had some evidence which, if not contradicted,

could have potentially established a prima facie case against Sipes, the record

demonstrates that several of the elements of each fraud action are not proven by

clear and convincing evidence. First and foremost, testimony at trial casts doubt

as to whether the leakage problem even originated during Sipes’ ownership of the

home. Immediately upon moving onto the property in Bucyrus, the Rodgers had a

40’ by 50’ pole barn built approximately thirty feet from the house. The Rodgers

also had an overhang added to their porch which required six inch by six inch

posts to be placed into the ground for support. During the construction of these

improvements, a pipe was crushed causing drainage water to flow back into the

basement. (Tr. at 132). Though this problem was fixed, and the Rodgers’ expert


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witness testified that the new structures were not the cause of water leaking in the

basement, Bob Nigh, one of the builders of Sipes’ home, testified on behalf of

Sipes that the new structures could have increased runoff into the basement. (Tr.

at 214).

       {¶27} Second, even assuming the new structures were not the cause of the

leakage in the basement, the record neither clearly demonstrates that Sipes had

knowledge that there was a problem with water leaking into the basement nor

demonstrates that Sipes recklessly disregarded any such leak. Sipes disclosed to

the Rodgers that the sump pump had once failed and a few inches of water filled

the basement. After the sump pump failed Sipes had it fixed and had his basement

drainage inspected to make sure there were no other problems. John Miller of

Rick’s Sewer Service inspected the drainage system for Sipes after the pump

failed in 2004 and found, contrary to the Rogers’ expert’s opinion, that there was

an exterior drainage system that was properly installed and that it was properly

functioning. (Tr. at 247).

       {¶28} The Rodgers also failed to demonstrate that at any time between the

sump pump failing in 2004 and their discovery of water in the basement on

January 5, 2007 that there had even been water in the basement leaking through

the walls. To prove that there had been, they rely on floor stains and testimony by

their expert witness that there must have been a problem and that Sipes must have


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known. However, none of the other people that had been in or worked on the

basement who testified at trial had noticed any water problems in the basement.

Scott Stair and David Sipes, Jr. (Sipes son), both testified that they had been in the

basement many times and had never seen any water other than on the one occasion

when the sump pump failed.         (Tr. at 272, 290).     Stair, who water-proofed

basements for a living and occasionally checked on the property, never noticed

any problems with the basement and testified that the sump pump was adequate.

(Tr. at 272-74).

        {¶29} Although the Rodgers have evidence that there was a stain on the

floor on the date of January 5, 2007 that evidence hardly gives rise to an inference

proving clearly and convincingly that Sipes must have known about a leakage

problem in the basement. This is especially true when Sipes put on the testimony

of several people who had been in the basement and had only seen water on the

one occasion. Based upon all of this evidence, the trial court, acting as trier of

fact, could reasonably find that Sipes did not know of a problem, conceal a

problem, or intend to mislead the Rodgers regarding a problem in purchasing his

home.

        {¶30} Moreover, even assuming arguendo that Sipes did know of a

problem, conceal that problem, and even had the intent to mislead the Rodgers

regarding that problem in the purchase of his home, the Rodgers are still unable to


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demonstrate justifiable reliance on Sipes’ representations. As part of the purchase

agreement there was a statement saying

       7. Purchaser acknowledges that, except as otherwise herein
       noted, the real estate/property is being purchased in its present
       physical condition after examination and inspection by
       Purchaser. Purchaser further acknowledges that Purchaser(s)
       are relying solely upon such examination and inspection with
       reference to condition, value, character, and dimensions of
       property, improvements, component systems and fixtures.
       Purchaser acknowledges that neither Seller, nor Seller’s
       Agent(s) have made any representations or warranties upon
       which Purchaser has been induced to rely; rather Seller and
       Seller’s Agent(s) have encouraged Purchaser to conduct a
       thorough and independent inspection(s) of the premises.

(Pl.’s Ex. 1); (Def.’s Ex. D).

       {¶31} As noted earlier, the Rodgers did, in fact, obtain a professional

inspection. As the Rodgers did not know anyone in the area, they had the realtor,

who was acting in a dual-agency capacity, recommend an inspector. Sipes took no

part in deciding who the inspector would be. The Rodgers were free to select

anyone they wanted and they chose Demeter. Though the Rodgers put on some

testimony that they were dissatisfied with Demeter’s inspection and his

credentials, they did not join Demeter in the lawsuit or call him as a witness.

       {¶32} Demeter conducted his inspection while Grant Rodgers was present.

While Demeter was conducting his inspection of the property, he was in no way

restricted from any area.        The Rodgers were similarly not restricted from



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inspecting any area of the home or the property. Notably, neither Demeter nor

Grant Rodgers noticed any stains on the basement floor during the inspection.

         {¶33} Furthermore, in Demeter’s report from the inspection, he

recommended monitoring the runoff situation in the yard as there were some

positive slopes toward the house, and he further recommended that that the areas

be filled in. This should have put the Rodgers on notice that drainage could be an

issue.    There is nothing in the record establishing whether the Rodgers ever

followed Demeter’s advice. There is also nothing in the record to indicate that the

Rodgers asked Sipes to correct this problem or that he failed to comply with such

a request.

         {¶34} After Demeter’s inspection, the Rodgers decided to continue with the

purchase of the home. The fact that the Rodgers engaged Demeter to inspect the

home shows that they were not relying merely on any statement made in the

disclosure form. It is also far from clear in the record that any such reliance would

have been justifiable. The language in the purchase agreement itself discounts this

possibility.

         {¶35} In sum, when viewing the evidence as a whole, there are several

elements of both fraud actions that the court, acting as trier of fact during this

bench trial, could find were not proven by clear and convincing evidence.6


6
  In fact, the court found that the Rodgers “fail[ed] to establish any of these claims by a preponderance of
the evidence and that judgment in favor of the Defendant must be entered on all claims.” (Doc. No. 26).

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         {¶36} Accordingly, the Rodgers’ second assignment of error is overruled.

                                     First Assignment of Error

         {¶37} In the Rodgers’ first assignment of error, they allege that the trial

court erred in applying the doctrine of caveat emptor to their case. Specifically the

Rodgers claim that the defect in the basement was not readily discoverable and

that Sipes committed fraud. The Rodgers claim that these facts preclude the

application of caveat emptor to their case. However, having determined that there

was no error in the trial court’s decision that there was no fraud in this case, we

examine this assignment of error only as it pertains to the claim for breach of

contract.

         {¶38} In Ohio, the seller of real property must disclose substantial latent

defects to the purchaser. Melenick v. Mcmanamon, 8th Dist., Nos. 92453, 92675,

2010-Ohio-1051, ¶ 24, citing McClintock v. Fluellen, 8th Dist. No. 82795, 2004-

Ohio-58, ¶ 16. Ohio’s real property disclosure statute, R.C. 5302.30, requires

sellers of real estate to disclose patent or latent defects within their actual

knowledge on a residential property disclosure form. If the seller fails to disclose

a material fact on the form with the intention of misleading the buyer, and the

We note that while preponderance of the evidence is the correct standard for determining the breach of
contract claim, it is not the correct standard for the fraudulent misrepresentation and fraudulent
concealment claims. The party alleging fraud has to prove fraud by clear and convincing evidence. See
Rapport v. Kochovski, 5th Dist. No. 2009CA00055, 2009-Ohio-6880, ¶ 15, citing Cross v. Ledford, 161
Ohio St. 469. However, as the Rodgers were unable to meet the even lower threshold of proof of a
preponderance of the evidence, it is obvious they failed to establish any claim of fraud by the higher degree
of clear and convincing evidence. As a result, we find the error here harmless.


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buyer relies on the form, the seller is liable for any resulting injury. Pedone v.

Demarchi, 8th Dist. No. 88667, 2007-Ohio-6809, ¶ 31.

           {¶39} However, “[t]he doctrine of caveat emptor * * * relieves a vendor of

the obligation of revealing every imperfection that might exist in a residential

property.” Cardi, supra, at 21-22, citing Layman v. Binns, 35 Ohio St.3d 176

(1988). Caveat emptor precludes recovery in an action by a purchaser for a

structural defect in real estate when (1) the condition complained of is open to

observation or discoverable upon reasonable inspection, (2) the purchaser had the

unimpeded opportunity to examine the premises, and (3) there is no fraud on the

part of the vendor. Layman, at syllabus, citing Traverse v. Long, 165 Ohio St. 249

(1956).

           {¶40} As has been established, there was no fraud committed by Sipes and

the Rodgers had an unimpeded opportunity to examine the premises. It is well

within the trial court’s discretion to find that the condition complained of was

discoverable on reasonable inspection, making the doctrine of caveat emptor

applicable to this case.7                Therefore, caveat emptor would properly bar the

Rodgers’ breach of contract claim.

           {¶41} However, even if caveat emptor had been deemed inapplicable,

another doctrine cited by the trial court would also bar the Rodgers’ breach of



7
    Or in this case, it could be argued that the defect was not present at all during Sipes’ ownership.

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contract claim, specifically, the “as is” clause of their purchase agreement. “An

‘as is’ clause in a real estate contract places the risk upon the purchaser as to the

existence of defects and relieves the seller of any duty to disclose.” Rogers v. Hill,

124 Ohio App.3d 468, 471 (4th Dist. 1998). Similar to the doctrine of caveat

emptor, an “as is” clause does not bar a claim for fraudulent misrepresentation or

fraudulent concealment. Id.; E-Poch Properties, LLC. V. TRW Automotive U.S.,

LLC., 286 Fed.Appx. 276, 281 (6th Cir. 2008). But, an “as is” clause in a contract

can bar a breach of contract claim. Tutolo v. Young, 11th Dist. No. 2010-L-118

2012-Ohio-121, ¶ 52.

        {¶42} Pursuant to the purchase agreement in this case, the Rodgers did

ultimately take the property “as is.” The pertinent purchase agreement provisions

read,

        14. Repair Period: In the event Purchaser’s inspections disclose
        any defects in the property which are timely reported to the
        Seller, Seller shall have the right, for a period of 10 days after
        expiration of the inspection period (the repair period) to either
        (a) repair the defects in a manner acceptable to the Purchaser,
        or (b) provide other assurances reasonably acceptable to
        Purchaser by means of an escrow of funds at closing for the
        repairs or otherwise, that the defects will be repaired with due
        diligence and in a manner acceptable to the Purchaser.

        15. Right to Cancel: If Seller is unwilling or unable to repair
        any defect or to provide the assurances described above during
        the repair period, Purchaser shall have the right at the
        Purchaser’s sole option, to cancel this contract, in which event
        the earnest money shall be handled as provided in Section 3 of
        this contract, and the parties shall be released from all other

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       obligations. This right of cancellation shall be exercised, if at all,
       by giving written notice to Seller within 5 days after the
       expiration of the repair period.
            Failure by Purchaser to cancel this contract within such 5-
       day period shall constitute a waiver by Purchaser of any
       uncured defects, and Purchaser shall take the property “as is”
       with respect to such defects.

(Emphasis added) (Pl.’s Ex. 1); (Def.’s Ex. D).

       {¶43} In sum, since there is no fraud in this case, the law of caveat emptor

and the law interpreting “as is” clauses would bar any other claims, including

breach of contract. Therefore, we find no error with the trial court’s application of

caveat emptor to this case. Accordingly, the Rodgers first assignment of error is

overruled.

       {¶44} For the foregoing reasons, the Rodgers’ assignments of error are

overruled and the judgment of the trial court is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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