[Cite as Ponder v. Cult, 2017-Ohio-168.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

JAMES D. PONDER, et al.                               C.A. No.      28184

        Appellants

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DANIEL S. CULP, et al.                                COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellees                                     CASE No.   CV 2015 03 2026

                                 DECISION AND JOURNAL ENTRY

Dated: January 18, 2017



        SCHAFER, Judge.

        {¶1}     Plaintiffs-Appellants, James and Shannon Ponder (collectively, “the Ponders”),

appeal the judgment of the Summit County Court of Common Pleas granting summary judgment

in favor of Defendants-Appellees, Daniel and Kristen Culp (collectively, “the Culps”). For the

reasons set forth below, we affirm.

                                                 I.

        {¶2}     On September 16, 2014, the Culps, as sellers, entered into a real estate purchase

agreement with the Ponders, as buyers, for a residential home located on Elizabeth Drive in

Stow, Ohio.      As relevant to this appeal, the real estate purchase agreement contained the

following provision:

        INSPECTION: This Agreement is contingent upon Inspection of the property by
        a professional(s) of Buyer’s choice. If Buyer in good faith is not satisfied with
        such Inspection(s), then Buyer must notify Seller in writing of such within 14
        days of the date of this Agreement. If a resolution of the unsatisfactory
        condition(s) cannot be reached, then the Buyer may void this agreement or accept
        the property in its “as is” condition. If Buyer voids this agreement, parties shall
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       sign a mutual release and earnest monies shall be promptly returned to Buyer. If
       Buyer does not inspect the property or does not notify Seller within the 14 day
       period then any contingency pursuant to this paragraph is removed and the Buyer
       shall take the property in its present “AS IS” condition.

Pursuant to R.C. 5302.30, the Culps completed, signed, and provided to the Ponders a State of

Ohio, Department of Commerce, Residential Property Disclosure Form. In Section D of the

Disclosure Form, the Culps indicated that they were unaware “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[.]” In Section E of the Disclosure

Form, the Culps indicated that they were aware of “previous or current movement, shifting,

deterioration, material cracks/settling (other than visible minor cracks or blemishes) or other

material problems with the foundation, basement/crawl space, floors, or interior/exterior

walls[.]” Specifically, the Culps wrote that prior to their purchase of the Elizabeth Drive

residence in 2007, the basement wall had been reinforced and a water system had been installed,

but that they had experienced “[n]o issue” with regard to either. In Section K of the Disclosure

Form, the Culps indicated that they were unaware “of any previous or current flooding, drainage,

settling or grading or erosion problems affecting the property[.]” Lastly, in Section N of the

Disclosure Form, captioned “OTHER KNOWN MATERIAL DEFECTS[,]” the Culps wrote, in

part, that “water comes up through [a] crack in [the] garage floor during heavy rain.” The

Ponders acknowledged receipt of the Disclosure Form on September 15, 2014.

       {¶3}   On September 25, 2014, the Ponders retained a home inspector, Tony Tilenni, to

conduct a general home inspection.      Tilenni inspected the entirety of the Elizabeth Drive

property, including the laundry room located in the basement of the house. After inspecting the

property, Tilenni told the Ponders that he “didn’t trust [the wall in the laundry room]” and

predicted that the slope of the driveway might cause water to leak into the laundry room. Tilenni
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also predicted that if there was going to be an issue with the property, it would likely occur in the

laundry room. It is undisputed that the Ponders never notified the Culps of any dissatisfaction

with the property within 14 days as required by the real estate purchase agreement.

       {¶4}    On September 26, 2014, the Ponders hired a structural engineer, Timothy Lauth,

to inspect the structural integrity of the basement and garage walls. Following his inspection,

Lauth reported that “[t]he basement had several vertical steel beams along one wall. * * * The

beams appear to be adequate to maintain the structural integrity of the wall. There was no water

staining noted on the walls or on the floor.” Following Lauth’s inspection but prior to receiving

his report, the Ponders’ real estate agent emailed the Culps’ real estate agent stating, “Basement

is good; however, Garage has major issues. Buyers are waiting on the written report from

Engineer before proceeding.”

       {¶5}    Once all inspections were complete, the Culps and Ponders entered into an

“Amendment to Residential Purchase Agreement and Removal of Inspection Contingencies”

with an addendum attached thereto.          The addendum provided for additions, revisions,

reservations, contingencies, and/or changes, as the case may be.          Once the revisions were

completed and each of the conditions satisfied, the Ponders removed the contingencies.

Thereafter, sale of the Elizabeth Drive property closed and title transferred to the Ponders. After

receiving title to the property, the Ponders assert that the basement flooded after the very first

rainfall. The Ponders also assert that the basement leaked every time that it rained thereafter.

       {¶6}    On March 26, 2015, the Ponders filed a lawsuit against the Culps in the Summit

County Court of Common Pleas. The Ponders alleged the following three claims in their

complaint: (I) fraudulent inducement; (II) fraud; and (III) mutual mistake of fact. The Culps

filed an answer denying the Ponders’ claims. On October 23, 2015, at the close of discovery, the
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Culps filed a motion for summary judgment on all of the Ponders’ claims. The Ponders filed a

brief in opposition to the Culps’ summary judgment motion, to which the Culps filed a reply

brief in support of their motion. On February 29, 2016, the trial court issued a judgment entry

granting summary judgment in favor of the Culps on all three of the Ponders’ claims.

       {¶7}    The Ponders filed this timely appeal, raising one assignment of error for this

Court’s review.

                                                 II.

                                       Assignment of Error

       The trial court’s decision to grant the Appellees’ motion for summary
       judgment constitutes reversible error.

       {¶8}    In their sole assignment of error, the Ponders argue that the trial court erred by

granting summary judgment in favor of the Culps.

                                       A. Standard of Review

       {¶9}    We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). Summary judgment is only appropriate where (1) no genuine

issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) the

evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C).

Before making such a contrary finding, however, a court must view the facts in the light most

favorable to the non-moving party and must resolve any doubt in favor of the non-moving party.

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).

       {¶10} Summary judgment consists of a burden-shifting framework. To prevail on a

motion for summary judgment, the party moving for summary judgment must first be able to

point to evidentiary materials that demonstrate there is no genuine issue as to any material fact,

and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio
                                                5


St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R.

56(E) provides that the non-moving party may not rest upon the mere allegations or denials of

the moving party’s pleadings.      Rather, the non-moving party has a reciprocal burden of

responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to

be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

                               B. Fraud & Fraudulent Inducement

       {¶11} As a general rule, “[t]he doctrine of caveat emptor precludes a purchaser from

recovering for a structural defect in real estate 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.’”

Midura v. Bosley, 9th Dist. Wayne No. 12CA0020, 2012-Ohio-5115, ¶ 7, quoting Layman v.

Binns, 35 Ohio St.3d 176 (1988), syllabus. Here, the Ponders allege that the Culps engaged in

fraud and fraudulent inducement. To support their claim for fraud, the Ponders would have to

prove each of the following elements: “(a) a representation or, where there is a duty to disclose,

concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with

knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or

false that knowledge may be inferred, (d) with the intent of misleading another into relying upon

it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury

proximately caused by the reliance.”         N. Shore Neurological Servs., Inc. v. Midwest

Neuroscience, Inc., 9th Dist. Lorain No. 08CA009373, 2009-Ohio-2429, ¶ 12, quoting State ex

rel. Illuminating Co. v. Cuyahoga County Court of Common Pleas, 97 Ohio St.3d 69, 2002-

Ohio-5312, ¶ 24, quoting Russ v. TRW Inc., 59 Ohio St.3d 42, 49 (1991). The elements of fraud
                                                6


and fraudulent inducement are substantially the same. Huegel v. Scott, 11th Dist. Trumbull No.

2015-T-0014, 2015-Ohio-3554, ¶ 14.

       {¶12} The Culps moved for summary judgment on the Ponders’ fraud-based claims on

the basis that no genuine issue of material fact was in dispute and that they were entitled to

judgment as a matter of law. In support of their motion for summary judgment, the Culps cite to

James and Shannon Ponders’ respective deposition testimonies. Specifically, the Culps cite to

James Ponder’s deposition, wherein he assumes that the Culps knew about the water intrusion

into the basement, but concedes that he has no physical proof of their knowledge. The Culps

also cite to Shannon Ponder’s deposition, wherein she states her belief that the Culps did not act

maliciously toward her. The Culps also cite to the portion of Shannon Ponder’s deposition

where she testified that Tony Tilenni conducted a general home inspection of the property in

question following the Culps’ completion of the disclosure form. Shannon Ponder proceeded to

testify that following his inspection of the home, Tilenni notified the Ponders that their basement

laundry room risked possible future water intrusion due to the slope of the driveway. The record

is clear that the Ponders never raised this issue with the Culps prior to taking title and moving

into the Elizabeth Drive property. From this evidence, we determine that the Culps satisfied

their initial Dresher burden demonstrating no genuine issue of material fact with respect to the

knowledge, intent, and justifiable reliance elements of the Ponders’ fraud-based tort claims.

       {¶13} With the Culps having satisfied their initial burden, the burden then shifts to the

Ponders, as the non-moving party, to provide specific facts which would demonstrate the

existence of a “genuine triable issue” on the knowledge, intent, and justifiable reliance elements

of their fraud-based claims. Tompkins, 75 Ohio St.3d at 449. In their brief in opposition, the

Ponders assert that the material representations contained within the Disclosure Form “were
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false, and they were made with express or implied knowledge of their falsity or with such utter

disregard and recklessness as to truth or falsity that knowledge of falsity may be inferred.” In

support of this assertion, the Ponders cite to an affidavit from Ron Jackson, the foreman at Ohio

State Waterproofing who waterproofed the basement of the Elizabeth Drive residence after the

Ponders purchased the property. In his affidavit, Jackson details the damage that he discovered

in the basement, which included water damage and moisture. Jackson also detailed the tasks that

he and his crew performed to rectify the damage. Lastly, Jackson attests that, in his opinion, the

water infiltration problems that he observed at the Elizabeth Drive residence “did not develop

overnight and probably took a number of years to get to the point at which [I] found them.”

Additionally, the Ponders cite to their own affidavits, wherein they each attest that the areas of

the basement affected by water damage were concealed during their inspections of the property.

Specifically, the Ponders’ respective affidavits attest that the “affected areas in the basement had

been covered by the [Culps] with plastic sheets that were glued to the walls” and that these areas

were “not open to observation” during their inspections. Lastly, the Ponders cite to the Culps’

response to “Interrogatory No. 5” in their first set of interrogatories wherein the Culps state that

the unfinished portion of the basement was last painted in March of 2014, just six months before

the property was inspected pursuant to the real estate purchase agreement.

       {¶14} However, even assuming that the Ponders satisfied their reciprocal burden with

respect to whether the Culps’ representations on the Disclosure Form were falsely made or were

made with such utter disregard to the truth that knowledge can be inferred, we determine that the

Ponders have failed to meet their reciprocal burden in demonstrating that they justifiably relied

upon the Culps’ alleged omissions and misrepresentations. A review of the record indicates that

the Ponders retained a home inspector to conduct a general home inspection of the Elizabeth
                                                 8


Drive property following the Culps’ submission of the Disclosure Form. The record further

indicates that the home inspector explicitly informed the Ponders that he “didn’t trust [the wall in

the laundry room]” and predicted that water may leak into the laundry room due to the slope of

the driveway. With this information in hand, it is undisputed that the Ponders failed to notify the

Culps of their dissatisfaction with the property and void the sale, as was their right under the

terms of the real estate purchase agreement. Rather, the Ponders elected to proceed with the

purchase of the Elizabeth Drive property in its “as is” condition.

       {¶15} Accordingly, as the record demonstrates that they were put on notice of potential

water problems in the basement of the Elizabeth Drive property, we determine that the Ponders

could not have justifiably relied upon the Culps’ alleged nondisclosures and misrepresentations.

See Gentile v. Ristas, 10th Dist. Franklin Nos. 04AP-547, 04AP-647, 04AP-704, 2005-Ohio-

2197, ¶ 63 (holding that appellants could not have justifiably relied upon appellee’s alleged

nondisclosures and misrepresentations of water problems in the basement where a home

inspection and general observation of the basement placed appellants on notice of water

damage). As no genuine issue of material fact remains to be litigated on this point, we conclude

that the trial court did not err in granting the Culps’ motion for summary judgment on the

Ponders’ fraud and fraudulent inducement causes of action.

                                     C. Mutual Mistake of Fact

       {¶16} “A careful review of Ohio law shows that ‘mutual mistake of fact’ is not a claim

in and of itself; rather, it can be a reason to make an otherwise valid contract voidable in a

rescission action.” Williams v. Clarke, 8th Dist. Cuyahoga No. 93973, 2010-Ohio-3318, ¶ 16.

With regard to mutual mistake of fact, this Court has previously stated:

       [Ohio] recognizes the doctrine of mutual mistake as a ground for the rescission of
       a contract under certain circumstances. [A] buyer is entitled to rescission of a real
                                                9


       estate purchase contract [if] there is a mutual mistake as to a material part of the
       contract and * * * the complaining party is not negligent in failing to discover the
       mistake. A mistake is material to a contract when it is a mistake * * * as to a
       basic assumption on which the contract was made [that] has a material effect on
       the agreed exchange of performances. [T]he intention of the parties must have
       been frustrated by the mutual mistake.

(Alterations in original and internal citations and quotations omitted.) Brown v. Scheussler, 9th

Dist. Summit No. 25008, 2010-Ohio-642, ¶ 10. “[W]here there is an ‘as is’ clause in the

executed purchase agreement followed by a professional inspection of the property, a buyer

cannot argue that the absence of water problems in a basement was ‘a basic assumption under

which a contract was made.’” Legg v. Ryals, 8th Dist. Cuyahoga No. 103221, 2016-Ohio-710, ¶

19, quoting Wallington v. Hageman, 8th Dist. Cuyahoga No. 94763, 2010-Ohio-6181, ¶ 27.

       {¶17} Here, the Ponders had actual knowledge, by virtue of Tilenni’s general property

inspection, that water could potentially leak into the basement laundry room due to the slope of

the driveway. Tilenni specifically identified the basement laundry room as an area of concern

and told the Ponders that he did not trust the laundry room wall. Despite Tilenni’s warnings, the

Ponders proceeded with the purchase of the Elizabeth Drive property “as is,” without any further

investigation into potential water problems. Because the Ponders were on notice, they cannot

reasonably claim that there was a mutual mistake regarding any water intrusion problems. See

Doctor v. Marucci, 11th Dist. Lake No. 2013-L-056, 2013-Ohio-5831, ¶ 20 (“Appellants had the

property inspected and were satisfied with the home ‘as is.’ Appellants’ basic assumption upon

which the contract was entered was that the home was acceptable in its then-present condition, in

light of the inspector’s examination and conclusion. To hold otherwise would essentially impute

a warranty into the transaction, which is inherently inconsistent with the concept of an ‘as is’

purchase.”) Accordingly, we conclude that there is no genuine issue of material fact with respect
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to the Ponders’ mutual mistake cause of action and the trial court did not err by granting

summary judgment in favor of the Culps on this claim.

       {¶18} Accordingly, the Ponders’ assignment of error is overruled.

                                                III.

       {¶19} The Ponders’ sole assignment of error is overruled and the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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CARR, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

DANIEL S. WHITE, Attorney at Law, for Appellants.

CYNTHIA A. LAMMERT, Attorney at Law, for Appellees.
