[Cite as Mobley v James, 2020-Ohio-380.]

                                COURT OF APPEALS OF OHIO

                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA

MICHAEL MOBLEY, ET AL.,                          :

                Plaintiffs-Appellants,          :
                                                             No. 108470
                v.                               :

RONALD JAMES,                                    :

                Defendant-Appellee.              :



                              JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: February 6, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-890671


                                           Appearances:

                Bradley Hull, IV, for appellants.

                Raymond J. Schmidlin, Jr., for appellee.

EILEEN A. GALLAGHER, P.J.:

                  This case involves a dispute arising out of a residential real estate

transaction between plaintiffs-appellants Michael Mobley (“Mobley”) and

AnnieRose Mobley (collectively, “buyers”) and defendant-appellee Ronald James

(“seller”). Buyers appeal from the trial court’s decision granting seller’s motion for

summary judgment on buyers’ claims for fraud, breach of contract and unjust
enrichment arising out of seller’s alleged failure to disclose a history of sewer

backups and “water intrusion” involving the property.

              For the reasons that follow, we affirm the trial court.

Factual Background and Procedural History

      The Purchase Agreement, Seller’s Disclosures and Buyers’
      Inspection

              On October 27, 2016, buyers executed a purchase agreement to

purchase a single-family home located at 17606 Schenely Avenue, Cleveland, Ohio

(the “property”) from seller. Seller purchased the property in 1996 and lived on the

property continuously for the 20 years prior to the sale.

              The purchase agreement incorporated an Ohio residential property

disclosure form that seller had completed on October 8, 2016 (the “RPDF”). In the

RPDF, seller denied knowledge of any of the following conditions with the property:

      ●     “any current leaks, backups or other material problems with the
      water supply system or quality of the water”;

      ●     “any previous or current leaks backups or other material
      problems with the sewer system servicing the property”;

      ●     “any 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”;

      ●      “any 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” and

      ●      “other known material defects in or on the property.”
              The purchase agreement stated that the property was “being

purchased in its ‘AS IS’ PRESENT PHYSICAL CONDITION” and was contingent

upon the results of a professional general home inspection by buyers. Buyers signed

the RPDF and acknowledged “that it is BUYER’S own duty to exercise reasonable

care to inspect and make diligent inquiry of the SELLER or BUYER’S inspectors

regarding the condition and systems of the Property.” Buyers further acknowledged

that “[o]wner makes no representations with respect to any offsite conditions.

Purchaser should exercise whatever due diligence purchaser deems necessary with

respect to offsite issues that may affect purchaser’s decision to purchase the

property.”

              Seller testified that at some point prior to the closing, buyers’ real

estate agent contacted his real estate agent requesting further information regarding

several items buyers had observed in the house, including why a sump pump had

been installed in the basement and an explanation of the “controls” in the upstairs

bathroom. Seller’s real estate agent, in turn, contacted seller about these issues.

Seller prepared a written response to buyers’ inquiries, which he emailed to his real

estate agent (the “supplemental disclosure”). With respect to the sump pump, seller

stated:

      Many years before I bought this house, the previous owner, who was a
      “tinkerer,” added the pump after there was a storm sewer backup in the
      neighborhood. It is NOT in use in order to keep the basement dry on a
      daily basis. It operated one or two times several years ago, when the
      storm sewers were overwhelmed again. The City has since cleaned
      them out and I have had no problems since.
      On occasion I run water into the sump and let the pump run for
      exercise. It was replaced about 5 years ago.

               Seller testified that, based on his communications with his real estate

agent, he believed his real estate agent had forwarded the supplemental disclosure

to buyers’ real estate agent and that buyers’ real estate agent, in turn, had forwarded

the supplemental disclosure to buyers because “we never had anymore [sic]

communication regarding it, saying where is this document.”

               Buyers hired Jagger Enterprises, Inc. d.b.a. Buckeye Home

Inspections to perform a general home inspection of the property. James Jagger

a.k.a. James Jiknialis, a certified home inspector, (the “home inspector”) performed

the home inspection on October 29, 2016. Mobley and buyers’ real estate agent

attended the home inspection. Seller was not present during the home inspection.

The home inspector made a digital audio recording of his inspection,

contemporaneously recording his observations and discussions with Mobley and

buyers’ real estate agent during the inspection.

               The home inspector testified that he had some questions about the

upstairs bath thermostat and why there was a sump pump in the basement, which

he raised with buyers’ real estate agent. He stated that, in response, buyers’ real

estate agent emailed him a copy of seller’s supplemental disclosure. The home

inspector testified that he assumed that buyers’ real estate agent had given buyers a

copy of the supplemental disclosure because “that’s what the agent told [him].”
               According to the home inspector, immediately following the

inspection, while everyone was still on-site at the property, he gave Mobley and

buyers’ real estate agent (1) a CD containing the audio recording of the home

inspection and (2) a carbon copy of a handwritten “material defects list” he had

prepared during the inspection.        He stated that later that day, he emailed a

typewritten, PDF version of the material defects list (with “a few more pieces of

information”) to Mobley and buyers’ real estate agent along with photos he had

taken during the inspection (collectively, the “inspection report”).1

               In the material defects lists, the home inspector identified a number

of potential issues with the property, including the following:

      The following were noted as material defects. These items affect either
      health, safety, or utility of the inspected property and/or may cost more
      than $500.00 to correct by repair or replacement. * * *

      4) Elevated moisture levels (100 points per Tramex Moisture
      Encounter electronic moisture meter) noted in red clay tiles at bottom
      of basement steps. No active water entry noted at time of inspection.
      Future leaks are possible.

      Please note — Basement appears to have been waterproofed.
      Recommend obtaining any warranties or other documents re:
      waterproofing.

      ***

      8) Seller has disclosed a history of backed up sewers.



      1  The home inspector testified that he considers the audio recording of the
inspection to be his “inspection report” because it is more detailed than the material
defects list. In their brief, however, appellants refer to the typewritten material defects
list and photos from the inspection as the “inspection report.” To avoid confusion, we
follow appellants’ lead and refer to the typewritten material defects list and photos from
the inspection as the “inspection report” here.
      ***

      *Please listen to the audio recording since that is your detailed
      inspection report.

              The home inspector indicated that he “noted” in his report that

“[s]eller has disclosed a history of backed up sewers” because (1) buyers’ real estate

agent had informed Mobley, during the home inspection, that seller had disclosed a

history of sewer backups and (2) the home inspector had “verified” this information

through the supplemental disclosure buyers’ real estate agent had forwarded to the

home inspector. The home inspector testified that he saw nothing during the

inspection to suggest that seller was attempting to conceal evidence of prior sewer

backups.

              On November 2, 2016, buyers agreed to remove the inspection

contingency in the purchase agreement provided seller had the boiler and water

heater serviced and made certain other repairs. On December 21, 2016, title on the

property transferred from seller to buyers.

      Post-Sale Sewer Backups

              Ten-and-one-half months later, on November 5, 2017, the city’s storm

sewers backed up and water infiltrated the basement of the property. Buyers

testified that five to six inches of sanitary sewage and water entered the basement

through the basement’s shower and sink drains after a “very heavy rain” that caused

a “severe flood in the neighborhood.” Buyers experienced a second “significant
water intrusion into the basement” in 20182 during a storm. Following these

incidents, buyers learned that other residences in the neighborhood had had prior,

ongoing problems with sewer backups. As a result of the incidents, buyers allegedly

sustained over $25,000 in property damage, decreased property value and other

expenses.

               Mobley acknowledged that the incidents occurred because the city’s

sewers were too small and lacked the capacity to handle large amounts of water

during excessive rains. After the second incident in 2018, buyers had a back flow

valve installed. After they installed the back flow valve, buyers had no further

problems with sewer water backups in the basement.

               Buyers claimed that they did not receive a copy of the handwritten

material defects list, the inspection report or any of the photographs from the home

inspection prior to closing. Although Mobley confirmed, during his deposition, that

the home inspector’s October 29, 2016 email forwarding a copy of the inspection

report to Mobley and buyers’ real estate agent had his correct email address, he

testified that he had never seen the email prior to his deposition and that he had

never had any conversations with his real estate agent regarding the email. Mobley

further testified that the “only thing” he had received from the home inspector prior

to closing was a “hard CD,” “delivered” to him after the inspection, “which didn’t

operate properly.” Mobley stated that “it wasn’t until after [buyers] went through


      2There is some confusion in the record as to when this second incident occurred.
In some of the materials, it is stated that the second incident occurred in April 2018; in
other materials, it is stated that the second incident occurred in August 2018.
* * * all the things with the house,” that the home inspector sent him a “drop box file

that had all the additional information regarding the inspection.”

               Mobley testified that when he first saw the inspection report

sometime after November 5, 2017, he was surprised to learn that the seller had

disclosed a history of sewer backups because he “never received a history of any

sewer backup” and was “never told that the house actually flooded.”

      Buyers’ Lawsuit against Seller

               On December 20, 2017, buyers filed a complaint, asserting claims of

fraud, breach of contract and unjust enrichment against seller. Buyers alleged that

seller had made false representations and/or concealed material facts from buyers

because “[i]ssues involving water intrusion,” “[i]ssues with plumbing,” “[i]ssues

with sewer backup,” “substantial damage to the basement” and the “substantial

vulnerability of the property to damage” were not disclosed on the RPDF. Buyers

claimed that seller had made the misrepresentations knowing that they were false,

or with reckless disregard for their truth or falsity, to induce buyers to purchase the

property.   Buyers further alleged that they had justifiably relied on seller’s

misrepresentations when purchasing the property.          Buyers sought to recover

compensatory and punitive damages, plus interest, costs and attorney fees, from

seller. Seller filed an answer in which he denied the material allegations of buyers’

complaint and asserted various affirmative defenses.3


      3 On August 20, 2018, buyers filed an amended complaint, naming Jagger
Enterprises, Inc. d.b.a. Buckeye Home Inspections and James A. Jiknialis as additional
defendants (the “home inspector defendants”). Buyers asserted claims of fraud and
                In discovery responses submitted in June 2019, seller stated:

      INTERROGATORY NO. 27: Identify all instances during which there
      was backup, water seepage, water intrusion, or other intrusion of
      liquids into any part of the interior of 17606 Schenely Avenue,
      Cleveland, Ohio 44119 during the time you owned the Schenely Avenue
      residence.

      RESPONSE: As previously disclosed, approx. 10-12 years ago, after an
      exceptionally hard rain, water backed up under the laundry tub and
      shower drain. It rose to only a small area (approx. 6 sq. ft), then sump
      pump kicked in and water receded.

                During his deposition, seller testified that this was the same incident

he had described in his supplemental disclosure, i.e., in which the sump pump

“operated one or two times several years ago, when the storm sewers were

overwhelmed.” Seller stated that he “couldn’t put a specific date on it,” but that he

believed the incident occurred “four to five years prior to his retirement” in 2012,

i.e., “maybe in ’08, sometime around in there.” He further testified that although he

had referenced the incident in his supplemental disclosure, he did not disclose it in

the RPDF because the RPDF had only a “five-year look back” for sewer backups and

the incident had occurred more than five years before he completed the RPDF. As

he explained:




breach of contract against the home inspector defendants, alleging that the home
inspector (1) had failed to disclose information to buyers that he had received as part of
the home inspection and (2) had failed to provide a “true and accurate copy” of the home
inspection report to buyers before buyers purchased the property. In March 2019, after
the trial court granted the home inspector defendants’ motion to stay litigation and
compel arbitration of the claims against them (based on an arbitration provision in the
home inspection agreement), buyers dismissed their claims against the home inspector
defendants without prejudice.
Q.     * * * What history of water intrusion into this house on Schenely
       was there during the time that you owned it?

 A.    I sent a document to them per the request of their realtor and
       explained one time I had a sewer backup, the sump pump was in
       place, the sump pump activated and drained it back down.

             Prior to that I had nothing, post that I had nothing. After
       the sewer backup that time the city came and cleaned all the
       sewers out. For like two weeks they were working all over the
       neighborhood and after that I had no problems.

 ***

 Q.    * * * At least one or two times that you’re aware of the sump
       pump was running?

 A.    It ran, correct and handled the backup.

 Q.    Okay. Now was there backup of water that literally came into the
       basement?

 A.    Yes, a small area, three, four feet.

 Q.    How many times?

 A.    I can recall one specific time, but I wrote in here one or two times
       I think just to be generous and say that it did happen, if that
       makes sense.

 ***

 Q.    * * * And when you used the term several years ago, you’re
       talking about several years prior to 2016, of course?

 A.    Yes.

 Q.    Okay. Can you identify approximately what year this backup
       occurred?

 A.    * * * I retired in 2012, I was writing this in ’16 and I know it was
       several, and I’m going to say four to five years previous to my
       retirement that this had occurred. So based on that, it’s over five
       years by several, but I couldn’t put a specific date on it.
              Seller stated that when this sewer backup occurred, water came up

through the basement drain and went “[j]ust in the general surrounding area,”

“three or four feet,” and that the water receded when the sump pump activated.

Seller testified that no “flooding” of the basement occurred and that he did not

sustain any property damage as a result of the sewer backup. Seller further testified

that he “ran water through” the sump pump periodically “to make sure that it

worked” and that he had previously replaced the sump pump after he discovered,

during one of these checks, that it was not working. Seller also stated that he had

the basement waterproofed in or around November 2012 “to relieve moisture on the

walls.”

      Seller’s Motion for Summary Judgment

              On January 31, 2019, seller filed a motion for summary judgment.

Seller argued that there were no genuine issues of material fact and that he was

entitled to judgment as a matter of law on all buyers’ claims because (1) buyers had

agreed to purchase the property “as is”; (2) the basement flooding was “caused by

the fact that the city sewers lacked the capacity to accommodate heavy rainfall” and

not due to some “defect with respect to the subject property”; (3) seller’s

representations on the RPDF were not fraudulent because the sewer backup seller

had experienced occurred eight years before the sale and seller had no duty to

disclose sewer backups on the RPDF that occurred more than five years earlier; (4)

seller had referenced the prior sewer backup in the supplemental disclosure and (5)

Mobley was aware of the “history of sewer backups” affecting the property and the
risk of future water intrusion based on his participation in the home inspection and

his receipt of the handwritten material defects list, inspection report and audio

recording of the home inspection. 4

               Buyers opposed the motion, arguing that there were genuine issues of

material fact that precluded summary judgment on each of their claims. Pointing to

(1) seller’s statements in the supplemental disclosure that the sump pump had

“operated one or two times several years ago, when the storm sewers were

overwhelmed again,” (2) evidence that seller had previously replaced the sump

pump and waterproofed the basement in 2012 and (3) evidence that the basement

flooded twice after buyers purchased the property, buyers argued that seller’s

representation in the RPDF that he was “unaware of any history of water intrusion

into the property” was “misleading and false.” Buyers also argued that “given the

widespread scope of floodings and the history of floodings throughout the

neighborhood,” seller was “on notice of water intrusion into his residence and

generally in the neighborhood” that he had a duty to disclose. Buyers claimed that

they had justifiably relied on seller’s representations in the RPDF and that their

inspection of the property did not preclude them from prevailing on their fraud



      4 In support of his motion for summary judgment seller submitted (1) an affidavit
from the home inspector; (2) copies of the handwritten material defects list, the
inspection report and the email from the home inspector forwarding the inspection report
to Mobley and buyers’ real estate agent; (3) a flash drive containing the audio recording
of the home inspection; (4) copies of the purchase agreement, addenda to the purchase
agreement and related documents; (5) a copy of the RPDF; (6) a copy of the transcript of
Mobley’s deposition; (7) a copy of seller’s supplemental disclosure and (8) copies of
documentation relating to buyers’ alleged damages.
claim because (1) “the property’s and neighborhood’s history of sewer backups was

not clearly and concisely identified to [buyers] by the home inspector or any third

party” and (2) “independent evidence was not visible to them that would have

reasonably put them on notice of the issue of water intrusion into the house.”

               With respect to their contract claim, buyers argued that the seller’s

disclosures on the RPDF were a material part of the purchase agreement and that

buyer breached that agreement when he “failed to deliver a house that met the

specifications” of that agreement, i.e., “a house without a history of water intrusion

over the preceding five years.” With respect to their unjust enrichment claim, buyers

contended that seller had been unjustly enriched “to the extent of more than

$20,000” (i.e., the damages they sustained from the 2017 and 2018 floods) when he

sold the property to buyers knowing that they were unaware of the “severe

problems” with the house. 5

      The Trial Court’s Decision

               On April 21, 2019, the trial court granted seller’s motion for summary

judgment on all buyers’ claims. Although the trial court indicated that it believed



      5  In support of their opposition, buyers submitted: (1) an affidavit from Michael
and AnnieRose Mobley; (2) documentation reflecting the transfer of the property from
seller to buyers; (3) copies of the purchase agreement and related documents, including
various addenda, and the removal of contingencies to the purchase agreement; (4) a copy
of the RPDF; (5) copies of the inspection report and seller’s supplemental disclosure
regarding the sump pump; (6) a copy of seller’s responses to buyers’ discovery requests;
(7) copies of the transcripts of the depositions of seller and the home inspector and (8)
copies of communications with and by Councilman Michael Polensek from November
2017 and January 2018 regarding street and basement flooding in portions of Ward 8.
seller had not been candid in his representations in the RPDF, the trial court

nevertheless found that, after construing the evidence in the light most favorable to

the buyers, there was no genuine issue of material fact that seller was entitled to

judgment as a matter of law on buyers’ claims. The trial court explained:

             Although the Court is dismayed with Defendant James’ apparent
      lack of candor on the disclosure form, the law is clear. Plaintiffs not
      only had the opportunity to inspect the property, they completed an
      inspection. That inspection disclosed the exact issue(s) for which they
      filed suit. Defendant James cannot be accused of actively concealing
      unfavorable conditions when those same conditions were discovered
      through a reasonable inspection. By completing the inspection, the law
      alleviates Defendant James of his prior deception.

             Further, the Court finds it improbable that the Plaintiffs paid for
      a home inspection, attended the actual inspection, were given verbal
      warnings of potential problems with the basement, failed to follow-up
      with the inspector Defendant Jiknialis to receive the written inspection
      prior to sale, proceeded with the sale regardless, and now ask this Court
      to find they had no knowledge of the issues. Especially considering
      Plaintiff Michael Mobley was orally advised of potential problems
      during the inspection itself. Although Defendant James’ conduct is
      certainly dubious at the best, the law is clear under these
      circumstances.

              Buyers appealed, raising the following assignment of error for review:

      The Trial Court erroneously determined that no genuine issue of
      material fact exists, and that reasonable minds can come to only one
      conclusion after construing the evidence in the light most favorable to
      Michael Mobley and AnnieRose Mobley, that summary judgment
      should be granted in favor of Ronald James on all claims asserted by
      the Mobleys against him.

Law and Analysis

      Standard of Review

              We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct

an independent review of the record to determine whether summary judgment is

appropriate.

               Under Civ.R. 56, summary judgment is appropriate when no genuine

issue exists as to any material fact and, viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party, entitling the moving party to judgment as a matter

of law.

               On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate his or her

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party has the reciprocal burden to point to evidence of specific facts in the record

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.

Summary judgment is appropriate if the nonmoving party fails to meet this burden.

Id.
      Buyers’ Motion for Summary Judgment on Fraud Claim against
      Sellers

                 Buyers contend that the trial court erred in granting summary

judgment in favor of seller on buyers’ fraud claim6 because seller fraudulently “failed

to disclose a history of water intrusion into the property.” Specifically, buyers argue

that because seller was “actually deceptive, as found by the [c]ourt,” “[t]he mere fact

that [buyers] had a home inspection does not relieve [seller] of his dishonesty and

fraudulent conduct in the real property disclosure forms.”

                 As a general rule, Ohio follows the doctrine of caveat emptor in real

estate transactions, which precludes a purchaser from recovering for a defect if: “(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 v. Binns, 35

Ohio St.3d 176, 519 N.E.2d 642 (1988), syllabus. ‘“The doctrine of caveat emptor is

designed to finalize real estate transactions by preventing disappointed real estate

buyers from litigating every imperfection existing in residential property.’” Psarras

v. Rayburn, 11th Dist. Geauga No. 2018-G-0181, 2019-Ohio-2168, ¶ 54, quoting

Thaler v. Zovko, 11th Dist. Lake No. 2008-L-091, 2008-Ohio-6881, ¶ 31. However,

a seller may still be liable to a buyer if the seller fails to disclose known latent

conditions. See, e.g., Binns at 178 (“a vendor has a duty to disclose material facts



      6 Buyers  do not dispute that the trial court properly entered summary judgment on
their breach of contract and unjust enrichment claims. Accordingly, we do not address
those claims here.
which are latent, not readily observable or discoverable through a purchaser’s

reasonable inspection”).

               The elements of fraud are: (1) a representation of fact (or where there

is a duty to disclose, concealment of a fact); (2) that is material to the transaction at

issue; (3) made falsely, with knowledge of its falsity or with utter disregard and

recklessness as to whether it is true or false; (4) with the intent of misleading another

into relying upon it; (5) justifiable reliance upon the misrepresentation (or

concealment) and (6) resulting injury proximately caused by the reliance. Cohen v.

Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984).

               While caveat emptor still applies, R.C. 5302.30 requires that a seller

of residential property complete and deliver to a prospective purchaser a residential

property disclosure form disclosing “material matters relating to the physical

condition of the property” and “any material defects in the property” that are “within

the actual knowledge” of the seller. R.C. 5302.30(C), (D); see also Hendry v. Lupica,

8th Dist. Cuyahoga No. 105839, 2018-Ohio-291, ¶ 7 (‘“R.C. 5302.30 requires sellers

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

knowledge on a residential property disclosure form.”’), quoting Wallington v.

Hageman, 8th Dist. Cuyahoga No. 94763, 2010-Ohio-6181, ¶ 17. R.C. 5302.30(E)(1)

provides that “[e]ach disclosure of an item of information that is required to be made

in the property disclosure form * * * and each act that may be performed in making

any disclosure of an item of information shall be made or performed in good faith.”

“Good faith” means “honesty in fact.” R.C. 5302.30(A)(1).
               If a seller fails to disclose a material fact on the disclosure form with

the intention of misleading the buyer and the buyer relies on the disclosure form,

the seller may be liable for a resulting injury. Wallington at ¶ 18; Pedone v.

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

a party ‘“has had the opportunity to inspect the property, he is charged with

knowledge of the conditions that a reasonable inspection would have disclosed.’”

Pedone at ¶ 33, quoting Nunez v. J.L. Sims Co., Inc., 1st Dist. Hamilton No. C-

020599, 2003-Ohio-3386, ¶ 17. Sellers of residential real property have no duty to

inspect their property or to otherwise acquire additional knowledge regarding

defects on their property. Roberts v. McCoy, 2017-Ohio-1329, 88 N.E.3d 422, ¶ 17

(12th Dist.). “[T]he duty to conduct a full inspection falls on the purchasers and the

disclosure form does not function as a substitute for such careful inspection.” Id.

               In this case, the purchase agreement states that the property is being

sold in its ‘“as is’ present physical condition.” “An ‘as is’ sale indicates that the buyer

has agreed to ‘make his or her own appraisal’ ‘and accept the risk’ of making the

wrong decision.” AE Prop. Servs., L.L.C. v. Sotonji, 8th Dist. Cuyahoga No. 106967,

2019-Ohio-786, ¶ 23, quoting McDonald v. JP Dev. Group, L.L.C., 8th Dist.

Cuyahoga No. 99322, 2013-Ohio-3914, ¶ 15. An “as is” clause in a real estate

purchase agreement relieves a seller of the duty to disclose latent defects and

precludes a claim against a seller based on “passive” nondisclosure. See, e.g.,

Pedone at ¶ 34; McClintock v. Fluellen, 8th Dist. Cuyahoga No. 82795, 2004-Ohio-

58, ¶ 18; Brown v. Lagrange Dev. Corp., 6th Dist. Lucas No. L-09-1099, 2015-Ohio-
133, ¶ 20. It does not, however, protect a seller from liability for “positive” acts of

fraud, i.e., ‘“a fraud of commission rather than omission,’” such as fraudulent

misrepresentation      or    fraudulent     concealment,      including    fraudulent

misrepresentations in an RPDF. Brown at ¶ 20, quoting Majoy v. Hord, 6th Dist.

Erie No. E-03-037, 2004-Ohio-2049, ¶ 18; Pedone at ¶ 34; McClintock at ¶ 18. In

other words, an “as is” clause is “inapplicable if the property disclosure form

contains misrepresentations.” Diemert v. Binstock, 8th Dist. Cuyahoga No. 107893,

2019-Ohio-3368, ¶ 22.

               Buyers’ fraud claim is based on the following representations made

by the seller in the RPDF:

      B) SEWER SYSTEM:

      ***
      Do you know of any previous or current leaks, backups or other
      material problems with the sewer system servicing the property?
       ☐ Yes ☒ No If “Yes,” please describe and indicate any repairs
      completed (but not longer than the past 5 years): ___________ * * *

       D) WATER INTRUSION:

      Do you know of any 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? ☐ Yes ☒ No If “Yes,” please describe and indicate any repairs
      completed: ___________ * * *

      Do you know of any 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? ☐ Yes ☒ No If “Yes,” please describe
      and indicate any repairs completed: ___________ * * *
              Buyers contend that seller misrepresented the condition of the

property in the RPDF because he failed to disclose the existence of one or more

incidents “several years” prior to the sale where the city’s sewers exceeded their

capacity, the sewers backed up and water from the sewers backed up into the

basement.

              We need not decide whether seller’s representations in the RPDF

relating to the sewer system or “water intrusion” were knowingly false (or whether

a genuine issue of material fact exists as to whether seller’s representations in the

RPDF were knowingly false) to resolve this appeal. Even if seller had knowingly

misrepresented the condition of the property in the RPDF, there is no genuine issue

of material fact that buyers could not have justifiably relied on those

misrepresentations when purchasing the property based on (1) Mobley’s receipt of

seller’s supplemental disclosure prior to closing and (2) the information the home

inspector provided Mobley regarding the “history of sewer backups disclosed by the

seller,” the history of sewer backups in the neighborhood generally and the potential

for future sewer backups and water intrusion on the property during the home

inspection.

              In determining whether a party justifiably relied on a representation,

courts must consider all of the relevant circumstances, including the nature of the

transaction, the form and materiality of the representation, the relationship of the

parties and their respective knowledge and means of knowledge. See, e.g., Kovacic

v. All States Freight Sys., 8th Dist. Cuyahoga No. 69926, 1996 Ohio App. LEXIS
3474, 18 (Aug. 15, 1996); McDonald v. Fogel, 11th Dist. Trumbull No. 2018-T-0079,

2019-Ohio-1717, ¶ 20. Justifiable reliance reflects “a balance between reliance and

responsibility”:

      “The rule of law is one of policy and its purpose is, while suppressing
      fraud on the one hand, not to encourage negligence and inattention to
      one’s own interests. There would seem to be no doubt that while in
      ordinary business transactions, individuals are expected to exercise
      reasonable prudence and not to rely upon others with whom they deal
      to care for and protect their interests, this requirement is not to be
      carried so far that the law shall ignore or protect positive, intentional
      fraud successfully practiced upon the simple-minded or unwary.”

AmeriFirst Sav. Bank v. Krug, 136 Ohio App.3d 468, 495-496, 737 N.E.2d 68 (2d

Dist.1999), quoting 50 Ohio Jurisprudence 3d, Fraud and Deceit, Section 132

(1984).

               Generally, “[t]he ‘question of justifiable reliance is one of fact.’” Mar

Jul, L.L.C. v. Hurst, 4th Dist. Washington No. 12CA6, 2013-Ohio-479, ¶ 61, quoting

Crown Property Dev., Inc. v. Omega Oil Co., 113 Ohio App.3d 647, 657, 681 N.E.2d

1343 (12th Dist.1996). Where, however, no genuine issue of material fact exists as

to whether a party justifiably relied on a misrepresentation, “summary judgment on

that issue is appropriate.” March v. Statman, 1st Dist. Hamilton No. C-150337,

2016-Ohio-2846, ¶ 22.

               First, with respect to seller’s supplemental disclosure, although

buyers submitted an affidavit in support of their motion for summary judgment in

which they averred that the supplemental disclosure “was not disclosed to the

Mobleys and[/]or they never received this report from [buyer] or [the home
inspector] prior to closing on the residence,” Mobley testified at his deposition that

he had, in fact, received a copy of the supplemental disclosure before buyers closed

on the property:

      Q.     Mr. Mobley, I’m showing you what has been marked as
             Defendant’s Exhibit-B, Mobley Exhibit B. Are you familiar with
             that document, sir?

      A.     Yes.

      Q.     Did you see that document before you closed on the house sir?

      A.     Yes, I did.

      Q.     It’s my understanding that Mr. James prepared this and sent it
             to his realtor on or about October 27th, October 28th, 2016.
             Does that sound about right to you, sir?

      A.     Yes.

      Q.     And then either his realtor or your realtor gave it to you before
             closing; is that correct, sir?

      ***

      A.     I do remember this, yes.

      Q.     So you remember seeing that before the property closed?

      A.     Yes.

              In addition, the audio recording of the inspection indicates that the

home inspector specifically referenced seller’s supplemental disclosure during the

home inspection, when explaining the operation of the basement sump pump to

Mobley:

      According to that piece of paper from the owner, this old ancient old
      sump was installed years ago by somebody else and it was designed that
      when the sewers backed up, the sump pump was supposed to capture
      the water and pump it out of the building. That is what this is
      reportedly about, ok?

(Emphasis added.)

              A party cannot create a genuine issue of material fact to defeat

summary judgment simply by submitting a self-serving affidavit that contradicts

other facts and evidence in the record. See, e.g., Byrd v. Smith, 110 Ohio St.3d 24,

30, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 28 (‘“Ordinarily, under [Civ.R.] 56(C), when

an affidavit is inconsistent with affiant’s prior deposition testimony as to material

facts and the affidavit neither suggests affiant was confused at the deposition nor

offers a reason for the contradictions in her prior testimony, the affidavit does not

create a genuine issue of fact which would preclude summary judgment.’ * * * [A]n

affidavit of a party opposing summary judgment that contradicts former deposition

testimony of that party may not, without sufficient explanation, create a genuine

issue of material fact to defeat a motion for summary judgment.”), quoting Lemaster

v. Circleville Long Term Care, Inc., 4th Dist. Pickaway No. 87 CA 2, 1988 Ohio App.

LEXIS 566, 3 (Feb. 22, 1988); see also Davis v. Snack Shack (Open Pantry), 8th

Dist. Cuyahoga No. 107376, 2019-Ohio-1887, ¶ 27.

              As this court has explained:

       “[W]hen the moving party puts forth evidence tending to show that
      there are no genuine issues of material fact, the nonmoving party may
      not avoid summary judgment solely by submitting a self-serving
      affidavit containing no more than bald contradictions of the evidence
      offered by the moving party. To conclude otherwise would enable the
      nonmoving party to avoid summary judgment in every case, crippling
      the use of Civ.R. 56 as a means to facilitate the early assessment of the
      merits of claims, pre-trial dismissal of meritless claims, and defining
      and narrowing issues for trial.” (Citations omitted.)
Telecom Acquisition Corp. I, Inc. v. Lucic Ents., Inc., 2016-Ohio-1466, 62 N.E.3d

1034, ¶ 92 (8th Dist.), quoting Bank One, N.A. v. Burkey, 9th Dist. Lorain No. 99

CA007359, 2000 Ohio App. LEXIS 2517, 14-15 (June 14, 2000).

               In this case, buyers have not even acknowledged, much less offered

any explanation for, the inconsistencies between Mobley’s deposition testimony and

the averments made in his subsequent affidavit.

               Buyers also claim that they never received a copy of the handwritten

list of material defects or the inspection report from the home inspector prior to

closing and, therefore, were never advised that “[s]eller has disclosed a history of

backed up sewers” or that “there were elevated moisture levels * * * in red clay bricks

at the bottom of the basement steps,” such that “future leaks are possible.”

               As the trial court observed, this claim is not credible. First, it is highly

unlikely that a party who paid for a home inspection would close on the property

without seeing or receiving the inspection report.             Second, several of the

“conditions” to the removal of the inspection contingency were items specifically

identified in the handwritten material defects list and inspection report.

               Nevertheless, even assuming a reasonable factfinder could find that

buyers did not receive a copy of the handwritten material defects list or inspection

report prior to closing, we would still conclude that there is no genuine issue of

material fact that buyers could not have justifiably relied on any alleged

misrepresentations in the RPDF relating to the matters at issue based on the

information Mobley received from the home inspector during the home inspection.
               Although buyers contend that they were defrauded because “the

property’s and neighborhood’s history of sewer backups was not clearly and

concisely identified to [them]” prior to closing, it is clear from listening to the audio

recording of the home inspection that the home inspector mentioned the potential

for a sewer backup affecting the property to Mobley at least three times during the

inspection.

               At the outset of the inspection, the home inspector stated:

      I work and live in this neighborhood. * * * We’ve had sewer problems
      over the years. Allegedly they’re supposed to be resolved with all this
      sewer stuff going on around here, but I cannot predict the future. One
      thing I do know is that not all insurance policies cover sewer backups
      so if you are buying your insurance * * * make sure you get the coverage
      you are comfortable with.

               During the inspection of the basement, the home inspector addressed

the issue of moisture in the basement and the potential for water leaks or sewer

backups affecting the property with Mobley as follows:

      Home Inspector: We’ve had a fair amount of rain lately. To give some
      perspective, I don’t see active water leaking. I think there is some
      potential to see a leak in this basement again. The walls primarily at
      the bottom of the basement stairs have some high moisture meter
      readings based on my Tramex meter. Common in these older homes.
      * * * This is what you find in these older homes, you have moisture in
      the walls. May leak, may not. * * *

      Let me continue with perspective. If I had to give the basement a rating
      like 0 is totally bone dry and 10 is really wet, I’d say you’re about a 1 to
      a 2. * * * And we also talked about the potential for a sewer backup here.

      [Mobley]: Because of the city, what’s going on outside.

      Home Inspector: Because of the infrastructure of the city, right. You
      got it. So if you buy these older places, and I own one, you take a certain
      chance, okay?
               At the conclusion of the inspection, the home inspector once again

mentioned to Mobley that the seller had disclosed a history of sewer backups and

that there was a potential for future water leaks or sewer backups affecting the

property:

      I would say, if I had to give this house a grade like you get in school, this
      would be an A-minus house. In other words, real good, solid house;
      needs a few things to raise it up to an A level.

      ***

      Item 4. Elevated moisture levels 100 points per Tramex meter noted
      in red clay tile walls at the bottom of the basement steps. No active
      water entry and the time of inspection. Future leaks, however, are
      possible so there is some element of risk.

      ***

      Number 8. The seller has disclosed a history of backed up sewers. * * *

               As such, there is no genuine issue of material fact that buyers were on

notice that (1) there was a history of sewer backups affecting both the property

specifically and the neighborhood generally and (2) there was a risk of additional

sewer backups and water intrusion affecting the property in the future — the very

issues buyers contend seller failed to disclose to them. “Buyers cannot justifiably

rely on alleged misrepresentations in a disclosure form if they are later put on notice

of the potential defect.” Petroskey v. Martin, 2018-Ohio-445, 104 N.E.3d 1021, ¶ 23,

27 (9th Dist.) (where buyers received information from inspection that was

“inconsistent” with seller’s representations on disclosure form, buyers were not

justified in relying on earlier statements contained in disclosure form), citing

Ponder v. Culp, 9th Dist. Summit No. 28184, 2017-Ohio-168, ¶ 14-15 (buyers could
not   have   justifiably   relied   upon    sellers’   alleged   nondisclosures    and

misrepresentations in disclosure form where home inspector warned sellers that

there was a risk of future water intrusion into basement laundry room due to the

slope of the driveway and buyers elected to purchase the property “as is,” without

further investigation); see also Riccardi v. Levine, 8th Dist. Cuyahoga No. 76215,

2000 Ohio App. LEXIS 2025, 10 (May 11, 2000) (“[A] buyer who has obtained a

negative home inspection cannot rely on statements made by a seller prior to the

home inspection.”).

               To the extent that the information buyers received regarding these

issues was not as “clear” and “concise” as buyers may have liked, buyers had a duty

to further inquire. Petroskey at ¶ 23 (‘“[O]nce alerted to a possible defect, * * * the

buyer has a duty to either[:] (1) make further inquiry of the owner, who is under a

duty not to engage in fraud, or (2) seek the advice of someone with sufficient

knowledge to appraise the defect.”’), quoting Tipton v. Nuzum, 84 Ohio App.3d 33,

38, 616 N.E.2d 265 (9th Dist.1992); Li-Conrad v. Curran, 2016-Ohio-1496, 50

N.E.3d 573, ¶ 34 (11th Dist.) (where the buyer had “notice of potential crack

problems in the * * * foundation wall,” but “did not take any steps to investigate the

issue or enter into further negotiations with the [sellers],” buyer was “preclude[d]

* * * from asserting that she justifiably relied upon any false statements made by

[sellers]”). Buyers, however, did not further inquire regarding these issues prior to

closing.
              Seller met his burden under Civ.R. 56(C), presenting evidence of

specific facts in the record demonstrating his entitlement to summary judgment on

buyers’ fraud claim. Buyers, however, did not meet their reciprocal burden, i.e.,

pointing to evidence of specific facts in the record demonstrating the existence of a

genuine issue of material fact for trial, to defeat summary judgment. Because it

cannot be said, based on the record before us, that buyers justifiably relied on any

alleged misrepresentations by seller with respect to the matters at issue, the trial

court properly granted seller’s motion for summary judgment on buyers’ fraud

claim. Buyers’ assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellants the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR
