[Cite as McDonald v. Fogel, 2019-Ohio-1717.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


ROBERT MCDONALD,                               :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2018-T-0079
        - vs -                                 :

DOROTHY M. FOGEL, et al.,                      :

                 Defendants-Appellees.         :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CV
01045.

Judgment: Affirmed.


Bruce M. Broyles, The Law Offices of Bruce Broyles, 2670 North Columbus Street,
Suite L, Lancaster, OH 43130 (For Plaintiff-Appellant).

Gilbert L. Rieger and James M. Brutz, Rieger, Carpenter & Daugherty, 2833 Elm Road,
N.E., P.O. Box 1429, Warren, OH 44483 (For Defendants-Appellees).


MATT LYNCH, J.

        {¶1}     Plaintiff-appellant, Robert McDonald, appeals the judgment of the

Trumbull County Court of Common Pleas, granting summary judgment in favor of

defendants-appellees, Dorothy M. Fogel and Mary Ann Brown, both with respect to the

claims raised in McDonald’s Complaint and Fogel and Brown’s Counter Claims. For the

following reasons, we affirm the decision of the court below.

        {¶2}     On June 20, 2017, McDonald filed a Complaint against Fogel and Brown

in the Trumbull County Court of Common Pleas, seeking the rescission of a Land
Installment Contract and compensatory damages for fraudulent concealment.

      {¶3}   On July 18, 2017, Fogel and Brown filed an Answer and Counter Claims,

adding the Trumbull County Treasurer as a third-party defendant. They alleged that

McDonald was in default under the terms of the Land Installment Contract and sought to

foreclose the subject property. Additionally, they sought damages for the breach of

another contract involving the sale of a tractor and other equipment located on the

subject property.

      {¶4}   On August 4, 2017, McDonald filed a Reply to the Counter Claims and, on

August 11, 2017, the County Treasurer filed an Answer.

      {¶5}   On June 6, 2018, Fogel and Brown filed a Motion for Summary Judgment

with respect to the claims in McDonald’s Complaint and their Counter Claims.

      {¶6}   On July 23, 2018, McDonald filed a Memorandum in Opposition to

Summary Judgment.

      {¶7}   On July 24, 2018, Fogel and Brown filed a Reply Memorandum.

      {¶8}   On August 2, 2018, the trial court issued a Judgment Entry, granting Fogel

and Brown’s Motion for Summary Judgment. The court found, in relevant part:

                    Defendants Dorothy Fogel and Mary Ann Brown inherited a
             single family dwelling located at 2886 E. River Road, Newton
             Township, Ohio and listed it for sale with Stevens & Associates.
             The Defendants had not resided in the property for decades. On
             June 2, 2015, Plaintiff Robert McDonald viewed the property and
             received a copy of the Residential Property Disclosure form as
             required by law. The disclosure form indicated that the Defendants
             had no knowledge of any water intrusion into the foundation.

                    On June 8, and after viewing the property, Plaintiff signed a
             Real Estate Purchase Agreement seeking to purchase the property
             for $169,900 but through a land contract. The offer was accepted
             by the Defendants. The property was sold subject to an “as-is”
             clause, and Plaintiff declined an inspection. The Plaintiff began to



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reside in the property in late June, 2015, and continued to reside
there for approximately six months though the terms of the land
contract were not finalized.      The land contract was signed
December 11, 2015, and was filed with the Trumbull County
recorder on December 14, 2015. The purchase price under the
Land Contract was $169,900 with a down payment of $30,800 and
monthly payments of $800.00 at 0% interest to begin on January 1,
2016 and ending October 1, 2017. Paragraph 10 under the Section
entitled ADDITIONAL PROVISIONS also provided for principal
payments of $30,000 on or before August 30, 2016, $30,000 on or
before January 30, 2017, and $33,100 on or before November 30,
2017. Thereupon the balance owed was to be paid in full by
November 30, 2018.

       Plaintiff failed to make any of the $800.00 monthly payments
from April 1, 2017 through October 1, 2017, and has not paid any of
the lump sum payments required under the contract. [Plaintiff] was
also required under the contract to pay the taxes and insurance on
the property, and [Plaintiff] failed to make those payments as
required. Defendants also allege that the parties had a separate
agreement whereby Plaintiff was to purchase the contents of a
shed on the property for the sum of $7,000. Per the Affidavit of
Dorothy Fogel, the Plaintiff has paid only $3,500 of that sum, with
$3,500 remaining.

      On page 2 of the Contract, under the section entitled
ADDITIONAL PROVISIONS, paragraph (3) state[s] that “Vendee is
purchasing this property in its ‘as is’ present condition,
acknowledging that there have been no promises, representations,
guarantees or warranties provided by Vendor or Vendor’s Agent.[”]

      ***

       Plaintiff’s complaint alleges that he became aware of * * *
water penetration in the basement “after the land contract was
executed and recorded.” However, at Plaintiff’s response to
Interrogatory #5, he states “Water [began] leaking into the
basement on or near the day Robert McDonald moved into the
property. Robert McDonald became aware of the water penetration
by seeing standing water and wet floors.” Plaintiff testified at his
deposition that even though he was aware of the water problems
that he signed the land contract “Because I respected these people,
and I tried to work with them is why. And I wanted, I wanted that
property is why.”




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                       In his response to the Motion for Summary Judgment
               Plaintiff contends that though he was aware of water penetration
               while he resided in the property, it was minor and when he brought
               it to the attention of the Defendants, they represented that the water
               issues were minor, and Defendants knew it was false or were
               reckless as to whether it was true or false.

                     ***

                       In this case, the defect was discoverable—and was actually
               discovered by Mr. McDonald. Mr. McDonald avers that the extent
               of the water intrusion was not known prior to signing the land
               contract agreement. Nevertheless he took no steps to discover the
               extent of the water intrusion, waived his right to have the property
               inspected, and purchased the property “as is.” Further, there is no
               evidence before the Court that the Defendants’ statements about
               the basement [were] made falsely, with knowledge of the falsity or
               with any disregard as to whether it is true or false. The Defendant’s
               [sic] affidavit avers they have not lived in the house for decades.
               Plaintiff, on the other hand, lived in the house for six months before
               finally signing the land contract agreement. He was in the best
               position to discover the extent of the water intrusion.

       {¶9}    On August 13, 2018, the trial court entered a Judgment Entry of

Foreclosure.

       {¶10} On August 29, 2018, McDonald filed a Notice of Appeal.

       {¶11} On appeal, McDonald raises the following assignment of error:

       {¶12} “[1.] The trial court erred in granting summary judgment upon the

complaint when there remained a genuine issue of material fact as to whether

Appellees committed fraud which would preclude the application of the doctrine of

caveat emptor.”

       {¶13} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,

(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from

the evidence * * * that reasonable minds can come to but one conclusion and that



                                             4
conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under this standard, “the appellate court

must * * * independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” (Citation omitted.) State

v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 26.

       {¶14} “In Ohio, real property sold ‘as is’ is subject to the doctrine of caveat

emptor.” Loomis v. Troknya, 165 Ohio App.3d 300, 2006-Ohio-731, 846 N.E.2d 101, ¶

20 (6th Dist.); Huegel v. Scott, 11th Dist. Trumbull No. 2015-T-0014, 2015-Ohio-3554, ¶

11.

       {¶15} “The doctrine of caveat emptor precludes recovery in an action by the

purchaser for a structural defect in real estate where (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.

       {¶16} “The elements of fraud are: (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




                                             5
concealment, and (f) a resulting injury proximately caused by the reliance.” Burr v. Bd.

of Cty. Commrs. of Stark Cty., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph

two of the syllabus.

       {¶17} In the present case, the condition complained of, i.e., water penetration in

the basement, was discoverable upon reasonable inspection and McDonald had the

unimpeded opportunity to examine the premises. McDonald concedes that he was

aware of water penetration in the basement when he signed the agreement to purchase

the property “as is” in December 2015, but maintains that he was unaware of the

potential severity of the intrusion and was dissuaded from conducting a reasonable

inspection of the condition by the fraudulent representations of Fogel and Brown.

       {¶18} According to the affidavit submitted by McDonald in opposition to

summary judgment, he testified:

                    6. In discussing the water penetration with Defendants
              Dorothy Fogel and Mary Ann Brown, they represented that the
              water penetration was never an issue, that the water penetration
              was minor at best, and that any water penetration was not any
              more than the small amount that was experienced in June of 2015.

                     7. In discussing the water penetration with Defendants
              Dorothy Fogel and Mary Ann Brown, they stressed how the
              basement had a bar in it and had been used over the years for
              family gatherings.

       {¶19} The trial court rejected McDonald’s claim of fraud on the grounds that he

failed to introduce evidence that Fogel and Brown’s statements were made with actual

knowledge of or reckless disregard to their falsity. On appeal, McDonald contends this

was error: “if Appellees had not been in the home for decades, then they were reckless

in making the statement that any water penetration was not any more than the small




                                           6
amount that was experienced in July [sic] of 2015.” Reply brief at 3.1 Assuming,

arguendo, that this evidence, construed most strongly in McDonald’s favor, raises a

genuine issue regarding Fogel and Brown’s knowledge and/or reckless disregard,

summary judgment was nevertheless appropriate as McDonald’s reliance on their

representations was, as a matter of law, neither justifiable nor reasonable.

          {¶20} As regards the issue of whether McDonald’s reliance was justifiable, we

must consider “the relationship between the parties,” as well as “the nature of the

transaction, the form and materiality of the representation, * * * and their respective

means and knowledge, as well as other circumstances.” (Citations omitted.) Tesar

Indus. Contrs., Inc. v. Republic Steel, 2018-Ohio-2089, 113 N.E.3d 1126, ¶ 50 (9th

Dist.).

          {¶21} In the present case, virtually every relevant factor bearing on the issue of

McDonald’s reliance weighs against him. On the Residential Property Disclosure Form

(initialed by McDonald on June 2, 2015), Fogel and Brown indicated that they were

unaware of “any previous or current water leakage, water accumulation, excess

moisture or other defects to the property.” Yet, McDonald claims that immediately upon

occupying the property he noticed water leaking into the basement.                       At this point,

McDonald should have recognized that Fogel and Brown were either lying to him or

ignorant of the actual condition of the premises, in either case, rendering his reliance

upon their subsequent representations that the leakage was minor unjustified.2


1. In his deposition testimony, McDonald also suggested that Fogel and Brown had actual knowledge of
water penetration: “They’ve owned the house for years, and [Fogel’s] husband did the maintenance.
They put a new electrical box down there. They did several things in the house itself. They had turned
on and off the water, which is downstairs in the basement.”
2. We acknowledge the possibility that McDonald was lying about the water penetration, a possibility also
suggested by the evidence, but are precluded from considering such possibility in light of the termination
of this case by summary judgment.


                                                    7
       {¶22} We further note that McDonald worked as a landscaper and excavator,

was knowledgeable about house construction, and, unlike Fogel and Brown, lived on

the property for six months prior to finalizing the agreement. McDonald’s means and

knowledge of the condition of the property was at least equal, if not superior, to that of

Fogel and Brown.

       {¶23} McDonald was willing to accept the property “as is” in June 2015, and,

even after living on the property for six months and acquiring actual knowledge of water

penetration, did so in December 2015. In fact, the agreement signed by McDonald in

December not only stated that he was purchasing the “property in its ‘as is’ present

condition,” but also acknowledged that “there have been no promises, representations,

guarantees, or warranties provided by the Vendor or Vendor’s agent.” McDonald’s

claim to have relied upon Fogel and Brown’s representations regarding the severity of

the water penetration contradicts his own disclaimer of such reliance in the purchase

agreement.

       {¶24} The sole assignment of error is without merit.       Compare 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 [vendors],” she was

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

the [vendors]”); Niermeyer v. Cook’s Termite & Pest Control, Inc., 10th Dist. Franklin

No. 05AP-21, 2006-Ohio-640, ¶ 40 (buyers “could not demonstrate that their reliance on

any alleged representation and/or omission by [the vendor] was justified” in light of their




                                            8
“knowledge regarding prior termite infestation and damage before they signed the

second ‘as-is’ purchase contract”).

      {¶25} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, granting summary judgment in favor of Fogel and Brown, is affirmed.

Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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