[Cite as Oryann, Ltd. v. SL & MB, L.L.C., 2015-Ohio-5461.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


ORYANN, LTD.,                                          :     OPINION

                 Plaintiff-Appellee/                   :
                 Cross-Appellant,                            CASE NO. 2014-L-119
        - vs -                                         :

SL & MB, LLC, et al.,                                  :

                 Defendants-Appellants/                :
                 Cross-Appellees.
                                                       :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 003055.

Judgment: Affirmed in part, reversed in part, and remanded.


Richard D. Eisenberg, 1413 Golden Gate Boulevard, Suite 200, Mayfield Heights, OH
44124 (For Plaintiff-Appellee/Cross-Appellant).

Dennis J. Ibold, Petersen & Ibold, Inc., 401 South Street, Bldg. 1-A, Chardon, OH
44024-1495 (For Defendants-Appellants/Cross-Appellees).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellants, SL & MB, LLC, et al., appeal the judgment of the Lake County

Court of Common Pleas, following a bench trial, finding its contract to sell the assets of

its horse-boarding business to appellee, Oryann LTD., is unenforceable for lack of

consideration.      Oryann cross-appeals the trial court’s judgment finding that Oryann

failed to prove its fraud claim against SL & MB. For the reasons that follow, we affirm in

part; reverse in part and remand.
      {¶2}   Gregg Battersby and his former wife, appellant, Amy Virant, bought the

subject 24-acre horse farm on Billings Road in Kirtland, Ohio in 1992. The property

included a main house, a barn, a cottage, an office building, and an arena.         They

operated the property as a horse farm and a horse-boarding facility and also resided in

the main house. Sometime after they bought the farm, Gregg and Amy formed a limited

liability company called SL & MB, LLC. They transferred ownership of the farm to SL &

MB, and continued to operate the horse-boarding business and reside on the farm.

Gregg was the managing member of SL & MB and Amy was its only other member.

      {¶3}   In or about 2006, Gregg and Amy divorced. Amy continued to reside on

the property, and Gregg moved to South Carolina. In 2006, SL & MB listed the property

for sale for $1.2 million. SL & MB received two offers to purchase the property, but

neither sale was completed. In August 2010, a realtor contacted Gregg, and said he

had an interested buyer for the property, one Denver Barry.

      {¶4}   Over the course of nearly one year, Gregg and Denver engaged in

extensive negotiations for the purchase of the farm. Denver told Gregg he was buying

the property for his daughter, Tracy Barry, for her to keep her horses and to operate the

property as a horse farm.      During these negotiations, Gregg remained in South

Carolina, and did not return to the property. Gregg and Denver spoke on the telephone

many times and sent each other over 100 e-mails and letters concerning the condition

of the property, various issues Denver had with the property, and the terms of the sale.

      {¶5}   On October 8, 2010, Denver sent Gregg an offer, which was prepared by

Denver’s attorney, to buy the property for a total price of $640,000. The offer was for

the land and buildings only and did not include any business assets. $150,000 was to




                                            2
be paid as a down payment, and the balance of $490,000 was to be owner-financed by

SL & MB.

       {¶6}   In his second offer, dated August 11, 2010, Denver valued the land alone

at $330,000, and the buildings at $310,000, for a total price of $640,000. No part of the

price was attributed to any business assets.

       {¶7}   On July 14, 2011, Denver sent Gregg a third offer, which was only for the

real estate and not any business assets, and the purchase price was still $640,000.

       {¶8}   Then, five days later, on July 19, 2011, Denver sent Greg a fourth offer,

which still involved a purchase price of $640,000 for the land and buildings only. Like

the other offers, it did not involve any business assets.

       {¶9}   Later in July 2011, Denver presented a fifth offer, which included a

provision that if any third party asserted a claim against the farm while payments were

still being made on the contract and SL & MB still owned the farm, Denver would be

entitled to pay the claim and then deduct 200 percent of the amount he paid from the

principal balance owed on the farm. So, for example, if a $10,000 claim was presented,

Denver could pay it and then deduct $20,000 from the amount that he and Tracy still

owed for the farm.

       {¶10} Gregg testified he was uncomfortable with this provision because, around

that time, he learned Denver had an extensive criminal history, which included grand

theft, theft, perjury, and tampering with evidence. Denver was also convicted of felony

impersonation of a police officer in 2006 in Cuyahoga County.        As a result, Gregg

became suspicious of Denver’s motives in making this proposal and rejected it.




                                             3
        {¶11} Between August 23, 2011 and August 29, 2011, the parties signed two

agreements that comprised the final version of their purchase contract. They consisted

of: (1) a “Real Estate Purchase Agreement” and (2) an “Agreement for Purchase and

Sale of Assets.”

        {¶12} The parties to these agreements were SL & MB; Patriot Partners, a

partnership between Gregg and Amy; Oryann, a limited liability company Denver

created to take title to the subject property; and Denver personally.

        {¶13} According to the Real Estate Purchase Agreement, Oryann and Denver

are the buyers, and agreed to pay $350,000 “for the land only” with $50,000 down. The

balance was to be owner-financed with monthly installments of $10,000 to be paid to SL

& MB.

        {¶14} Pursuant to the Agreement for Purchase and Sale of Assets, Oryann and

Denver agreed to pay Patriot Partners $290,000 for “all of the Seller’s properties,

assets, stock, and business as a going concern.” These assets were to be listed in the

attached Exhibit A, but that exhibit was left blank.

        {¶15} Further, Oryann and Denver signed a “Note and Security Agreement” for

$640,000, giving SL & MB a note for this amount and a security interest in Oryann LTD.

to secure payment of the note. Oryann also signed a Mortgage in favor of SL & MB to

secure the amount owed for the real property ($350,000). In addition, Oryann signed

another Mortgage in favor of Patriot Partners on the real property to secure the amount

owed under the asset purchase agreement.

        {¶16} On October 20, 2011, the sale closed and the property transferred by

deed to Oryann.




                                             4
       {¶17} After the closing, Oryann and Denver made the first 13 monthly payments

($130,000) pursuant to the terms of the parties’ agreements, but they did not make the

November 2012 payment or any subsequent payment.

       {¶18} On November 20, 2012, Oryann filed a complaint against SL & MB and

Amy personally. In Oryann’s Second Amended Complaint, Oryann asserted two claims.

In Count I, Oryann alleged the sellers defrauded it by concealing the following defects

on the property: (1) water intrusion in the basement of the main house; (2) shifting

foundation and some rotted floor joists in the cottage; (3) nonfunctional septic systems

for the cottage and office building; (4) leaks in the barn roof; and (5) clogged or

nonfunctional drain tiles. In Count II, Oryann alleged SL & MB breached the asset

purchase agreement by failing to deliver the assets of the horse-boarding business to

Oryann.

       {¶19} SL & MB filed an answer and counterclaim, alleging Oryann breached the

agreements by not making the agreed payments. SL & MB later joined Denver as a

new-party defendant and filed a cross-claim against him, alleging he and Oryann jointly

agreed, but failed, to make those payments.

       {¶20} Denver filed an answer to SL & MB’s cross-claim, denying its material

allegations.

       {¶21} The case was tried to the court. Following the trial, the trial court entered

judgment, finding that Oryann failed to prove its fraud claim and that SL & MB failed to

prove a meeting of the minds and the existence of consideration with respect to the

asset purchase agreement. The court found that the real estate purchase agreement

was enforceable and that Oryann and Denver unjustifiably stopped making payments




                                            5
on it. The court granted judgment in favor of SL & MB with respect to the balance owed

by Oryann and Denver under that contract in the amount of $170,000; dismissed SL &

MB’s counterclaim for $290,000 against Oryann and Denver on the asset purchase

agreement; and dismissed Oryann’s fraud claim against SL & MB and Amy.

       {¶22} SL & MB and Amy appeal only that part of the trial court’s judgment

relating to the parties’ asset purchase agreement, asserting the following for their sole

assignment of error:

       {¶23} “The trial court erred in holding that the Agreement for Purchase and Sale

of Assets, and the promissory note and mortgage deed securing the obligations

contained therein, are void and unenforceable on the grounds that there was no

meeting of the minds between the parties with respect to the consideration to be given

from sellers to buyers.”

       {¶24} “‘A contract is generally defined as a promise, or a set of promises,

actionable upon breach. Essential elements of a contract include an offer, acceptance,

* * * consideration * * *, [and] a manifestation of mutual assent * * *.’ Perlmuter Printing

Co. v. Strome, Inc., 436 F. Supp. 409, 414 (N.D.Ohio 1976). A meeting of the minds as

to the essential terms of the contract is a requirement to enforcing the contract.

Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366,

369 (1991) * * *.”     Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶16. “‘The

existence of an enforceable contract is a prerequisite to a claim for breach of contract.’”

Spoerke v. Abruzzo, 11th Dist. Lake No. 2013-L-093, 2014-Ohio-1362, ¶29, quoting

Ireton v. JTD Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-04-023, 2011-




                                             6
Ohio-670, ¶38. The existence of a contract is a question of law that we review de novo.

Spoerke, supra, at ¶27.

       {¶25} Further, our primary goal in interpreting a contract is to ascertain and give

effect to the intent of the parties. Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 86

Ohio St.3d 270, 273 (1999). We presume the intent of the parties to a contract resides

in the language used in the written instrument. Kelly v. Med. Life Ins. Co., 31 Ohio

St.3d 130 (1987), paragraph one of the syllabus. The interpretation of a contract is a

question of law that we review de novo. Allstate Indemn. Co. v. Collister, 11th Dist.

Trumbull No. 2006-T-0112, 2007-Ohio-5201, ¶15. Since the construction of a contract

is a matter of law, this court will give no deference to the trial court’s interpretation of the

contracts involved herein. Graham v. Drydock Coal Co., 76 Ohio St. 3d 311, 313 (1996).

       {¶26} If contractual terms are unambiguous, a court may not interpret the

contract in a manner inconsistent with the clear language of the instrument. Shifren v.

Forrest City Ents., Inc., 64 Ohio St.3d 635, 638 (1992). A court may consider parol or

extrinsic evidence, however, to interpret a contract if its terms are ambiguous or

unclear. Sugarhill Ltd. v. Brezo, 11th Dist. Geauga No. 2004-G-2579, 2005-Ohio-1889,

¶35. Contractual terms are ambiguous if the terms are reasonably susceptible to more

than one interpretation. Id. at ¶33. Such extrinsic evidence includes the circumstances

surrounding the parties at the time the contract was made and the objectives they

intended to accomplish by entering the contract. Career & Tech. Ass’n v. Auburn Voc.

Sch. Dist. Bd. of Educ., 11th Dist. Lake No. 2013-L-010, 2014-Ohio-1572, ¶18. Further,

“it is a longstanding principle of contract law that when contract language is unclear, a

court may look to the course of conduct between the parties as evidence of the




                                               7
construction which they gave to the agreement.” Mentor Indus. Complex v. N. Coast

Wood Prods., 11th Dist. Lake No. 2000-L-116, 2001 Ohio App. LEXIS 3290, *7 (Jul. 20,

2001).    In addition, the parties’ negotiations may be considered for the purpose of

explaining ambiguous language in a contract. Pharmacia Hepar, Inc. v. Franklin, 111

Ohio App.3d 468, 475 (12th Dist.1996).

         {¶27} The trial court construed the parties’ contracts and found that the Real

Estate Purchase Agreement was enforceable and that Oryann and Denver were jointly

liable to SL & MB for the unpaid balance in the amount of $170,000.

         {¶28} In contrast, the court found there was no meeting of the minds with

respect to the asset purchase agreement and that it was illusory because it failed to

identify with sufficient clarity the assets to which it applied. Alternatively, the court found

there was no consideration given by SL & MB for that agreement. As a result, the court

found that agreement was unenforceable.

         {¶29} However, the express language of the two contracts demonstrates that

both contracts were part of the same transaction and that the parties intended to be

bound by both.

         {¶30} “It is well settled that contracts must be read as a whole, and they must be

interpreted in such a manner as to give effect to every provision.” Prudential Ins. Co. of

Am. v. Corporate Circle, LTD, 103 Ohio App.3d 93, 98 (8th Dist.1995), appeal not

allowed at 73 Ohio St.3d 1453 (1995). “Moreover, as a general rule of construction,

Ohio courts construe multiple documents together if they concern the same

transaction.” Prudential, supra, citing Center Ridge Ganley, Inc. v. Stinn, 31 Ohio St.3d

310 (1987); accord Manufacturing Management Systems, Inc. v. Data Solutions, Inc.,




                                              8
11th Dist. Lake Nos. 11-074, 11-076, 1987 Ohio App. LEXIS 6173, *5-*6 (Mar. 20,

1987). “Thus, all writings that are a part of the same transaction should be interpreted

together, and effect should be given to every provision of every writing.” Prudential,

supra.

         {¶31} In Prudential, supra, the plaintiff/holder of the mortgage note sought

judgment on the note and foreclosure of the mortgage. The debtor also signed an

assignment of rentals, and the plaintiff also pursued a claim for the rentals. The note

contained an “exculpation clause,” which arguably limited the plaintiff to recovery on the

note and mortgage.        Thus, the debtor argued he was entitled to dismissal of the

plaintiff’s claim for recovery of the rentals. The trial court agreed with the debtor and

dismissed the plaintiff’s claim as to the rentals. The Eighth District reversed, holding:

         {¶32} The trial court’s interpretation of the exculpation clause nullifies the
               * * * assignment of rentals and fails to interpret the loan documents
               together, giving effect to every provision of those writings. Under
               the interpretation made by the trial court * * *, the * * * assignment
               of rentals [is] rendered meaningless, as if [it was] never negotiated
               or signed.

         {¶33} Turning to the facts of this case, the express language of the real estate

purchase agreement and the asset purchase agreement demonstrate the parties’ intent

to treat both contracts as part of one transaction. This intent is shown by the fact that

both agreements were entered contemporaneously by the parties and each contract

referenced the other. In fact, each contract is dependent on the other. Specifically, the

real estate purchase agreement provided: “The purchase price herein shall first be

applied against the * * * agreement for the purchase and sale of assets attached hereto

* * *.” (Emphasis added.) Further, the asset purchase agreement provides that Oryann

shall pay to Patriot Partners $290,000 for the assets of the business and that “[t]he



                                               9
purchase price shall be paid as part of the purchase price for the real estate, a copy of

such agreement is attached hereto * * *.” (Emphasis added.)

       {¶34} In addition, the extrinsic evidence supports our holding that the parties

intended these two contracts to be part of the same transaction. The farm was listed for

sale at $1.2 million and the listing was for the real estate only; the listing did not include

any business assets or items of personal property.

       {¶35} Further, during the parties’ year-long negotiations, while Oryann presented

several different versions of its offer to purchase the property, the total amount offered

in each was always the same, $640,000. Significantly, in the first five versions of its

offer, Oryann offered $640,000 for the real estate alone, and did not attribute any part of

the purchase price to business assets. In the final version of Oryann’s offer, for the first

time, $290,000 of the $640,000 purchase price was attributed to the business assets.

However, according to Gregg’s testimony, the assets were valued this way so Oryann

would only have to pay real estate tax on the property valued at $350,000, rather than

$640,000. Thus, the valuation of the assets at $290,000 was solely for Oryann’s tax

benefit, and did not reflect the true value of the assets.

       {¶36} Based on the foregoing, the parties intended both contracts to be part of

the same transaction and to be bound by both. However, the trial court’s construction of

the contracts nullified the asset purchase agreement. Moreover, the court failed to

interpret the contracts together, giving effect to every provision of those writings. Under

the interpretation made by the trial court, the foregoing contracts as a whole were

rendered meaningless by only giving effect to the real estate purchase agreement and

cancelling the asset purchase agreement, as if it was never negotiated and signed by




                                             10
the parties.   Prudential, supra.   Perhaps the best indication that the trial court’s

construction of the contracts did not reflect the parties’ intent was that, under this

construction, Oryann and Denver would end up paying only about one-half of the price

the parties had always agreed would be the purchase price for the farm. The trial court

thus erred in cancelling the asset purchase agreement.

      {¶37} In addition, contrary to the trial court’s findings, there was a meeting of the

minds regarding the consideration given by Patriot Partners to Oryann for the asset

purchase agreement.

      {¶38} “[A] contract is not binding unless supported by consideration.” Williams v.

Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, ¶15. “Consideration * * * is a ‘bargained

for’ legal benefit and/or detriment.” Prendergast v. Snoeberger, 154 Ohio App.3d 162,

2003-Ohio-4742, ¶28 (7th Dist.), citing Kostelnik, supra, at ¶16. “A benefit may consist

of some right, interest, or profit accruing to the promisor, while a detriment may consist

of some * * * loss * * * undertaken by the promisee.” Williams, supra. In other words, in

order for there to be consideration, the promisor (the party binding himself to perform)

must receive some benefit, and/or the promisee (the party receiving the benefit of the

promisor’s performance) must sustain some detriment. Further, the existence of

consideration is a question of law, which we review de novo. Orwell Natural Gas Co. v.

Fredon Corp., 11th Dist. Lake No. 2014-L-026, 2015-Ohio-1212, ¶37.

      {¶39} The express language of the asset purchase agreement reflects the

parties’ meeting of the minds regarding the consideration given by Patriot Partners. The

asset purchase agreement provided: “the Purchaser [Oryann and Denver] agree[ ] to

purchase from the Seller [Patriot Partners], and the Seller agrees to sell and deliver to




                                           11
the Purchaser on the Closing Date, all of the Seller’s properties, assets, stock, and

business as a going concern.” While Exhibit A to that agreement, which was supposed

to list the assets to be conveyed to Oryann, was not filled out by the parties, Oryann and

Denver signed the contract as written, indicating that the contract was sufficiently

specific for their purposes. Their understanding was that they were to receive all of

Patriot Partners’ business assets as consideration, and the contract set forth this

understanding.

       {¶40} Further, the extrinsic evidence supports our holding that the parties had a

meeting of the minds regarding consideration. After Oryann and Denver signed this

contract, they took possession of the farm and made regular payments in the amount of

$10,000 per month for 13 months, without objecting to any lack of specificity in the

contract.

       {¶41} Moreover, Amy testified regarding the assets Patriot Partner’s delivered to

Oryann in connection with this transaction. In her testimony, she referred to a list of

these assets that was provided by SL & MB to Oryann in discovery. Amy confirmed at

trial that Patriot Partners delivered its business assets to Oryann, including the

following:   (1) “horse jumps including rails and standards;” (2) “four propane fueled

heaters,” which were left in the pole building; (3) “tractor equipment - back blade, plow

blade and a brush hog,” which were left in the outbuildings; (4) eight portable window air

conditioners, (5) 25 four foot by six foot rubber horse stall mats; (6) three 1,000-gallon

and two 300-gallon propane tanks; and (7) numerous lamps and free-standing light

fixtures.




                                           12
       {¶42} Thus, as a matter of law, there was a meeting of the minds regarding

consideration and consideration was given by Patriot Partners in exchange for the asset

purchase agreement. As a result, that agreement is enforceable, and the trial court

erred in concluding otherwise. Consequently, the trial court also erred in finding the

“Note and Security Agreement” unenforceable (because it secured the asset purchase

agreement) and in finding the Mortgage securing the asset purchase agreement

unenforceable. On remand, the trial court shall take all steps necessary to reinstate

those instruments, which shall remain in full force in effect.

       {¶43} SL & MB’s assignment of error is sustained.

       {¶44} For Oryann’s sole cross-assignment of error, it contends:

       {¶45} “The trial court committed error in determining that Oryann did not rely on

misrepresentations or concealment in the purchase of real estate and that each of the

material defects was open and obvious.”

       {¶46} In order for Oryann to prevail on its claim for fraudulent misrepresentation

or concealment, it was required to prove: (1) there were defects on the property; (2)

which were material to the transaction; (3) Amy and/or Greg misrepresented or actually

concealed those defects; (4) with knowledge of the defects they misrepresented or

concealed; (5) with the intent of inducing Oryann’s reliance; (6) Oryann actually relied

on those misrepresentations or concealment, (6) its reliance was reasonable; and (7)

Oryann sustained damages as a result of its reliance. Doctor v. Marucci, 11th Dist. Lake

No. 2013-L-056, 2013-Ohio-5831, ¶11-12; Thaler v. Zovko, 11th Dist. Lake No. 2008-L-

091, 2008-Ohio-6881, ¶39.




                                             13
       {¶47} “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, 185 Ohio App.3d 309, 2009-Ohio-

6880, ¶15 (5th Dist.), citing Cross v. Ledford, 161 Ohio St. 469 (1954). “The burden to

prove fraud rests upon the party alleging the fraud.” Id.

       {¶48} “The doctrine of caveat emptor, although virtually abolished in the area of

personal property, remains a viable rule of law in real estate sales.” Layman v. Binns,

35 Ohio St.3d 176, 177 (1988). “‘The principle of caveat emptor applies to sales of real

estate relative to conditions open to observation. Where those conditions are

discoverable and the purchaser has the opportunity for investigation and determination

without concealment or hindrance by the vendor, the purchaser has no just cause for

complaint even though there are misstatements and misrepresentations by the vendor

not so reprehensible in nature as to constitute fraud. * * *’” Id., quoting Traverse v.

Long, 165 Ohio St. 249, 252 (1956).

       {¶49} Caveat emptor precludes recovery in an action by a purchaser for a defect

in real estate when (1) the defect complained of is open to observation or discoverable

on reasonable inspection, (2) the purchaser had an unimpeded opportunity to examine

the property, and (3) there is no fraud on the part of the vendor. Bencivenni v. Dietz,

11th Dist. Lake No. 2012-L-127, 2013-Ohio-4549, ¶45.

       {¶50} Oryann argues the trial court’s finding that it failed to present credible

evidence regarding most of the elements of its fraud claim is against the manifest




                                            14
weight of the evidence. The parties presented conflicting evidence on each of the

elements of fraud, and the trial court made findings of fact regarding each element.

      {¶51} First, the court found that, although Oryann proved there were defects in

the property, it failed to prove that the defects were material to the transaction. In the

context of a claim for fraud, a misrepresentation of fact is material when, under the

circumstances, it would likely affect the conduct of a reasonable person in deciding

whether to enter into the transaction at issue. Brannon v. Mueller Realty & Notaries, 1st

Dist. Hamilton No. C-830876, 1984 Ohio App. LEXIS 11140 (Oct. 24, 1984). The trial

court found that Tracy was the managing member of Oryann and had the sole authority

to accept or reject a contract on Oryann’s behalf. The court also found that Tracy did

not testify that she would have declined to purchase the property on the stated terms if

she had known more about the defects.           The court found that, although Denver

negotiated the transaction on behalf of Oryann, there was no evidence that he had the

authority to accept or reject the contract on Oryann’s behalf. Significantly, Oryann does

not challenge this finding on appeal.

      {¶52} Second, the court found that Oryann failed to prove that SL & MB

misrepresented or concealed any allegedly material defect. The court found that there

was no evidence Gregg knew anything more than Denver told him about the defects,

since there was no evidence Gregg observed them or learned about them from any

other source. The trial court noted that, instead of denying that there was any water

intrusion in the basement or any septic system malfunction, Gregg sent to Denver a

“Residential Property Disclosure form,” which confirmed the existence of these

problems. Gregg faxed this completed form to Denver on August 2, 2011, before the




                                           15
contracts were signed. Under the heading “Water Intrusion,” Gregg stated there is

water in the basement from this year’s heavy rain and also from condensation of the

water lines. Thus, rather than concealing this condition, Gregg confirmed there was

water in the basement.

       {¶53} With respect to the drain tiles, Gregg testified he had them professionally

cleaned in October 2010, one year before the contracts were signed.

       {¶54} With respect to the septic systems, Gregg said that they were functioning

properly; that he did routine maintenance on them throughout the years he and Amy

owned the property; and that he periodically had the tanks pumped.

       {¶55} Moreover, Gregg was living in South Carolina during the parties’

negotiations, and retained contractors in Ohio to address some of Denver’s complaints.

Gregg relied on these contractors to make repairs to the property, including the drain

tiles, barn roof repair, and cottage foundation repair.

       {¶56} The court found that the only alleged representation by Amy relating to

basement water was that she attributed it to condensation or a temporary break in a

basement drain connection. Denver testified the downspouts were removed from the

drain tile and the inlets to the drain tiles were covered, showing the sellers obviously

meant to conceal that there was water in the basement. However, Amy testified she

diverted the downspout flow by attaching pieces of black flexible piping to the bottom of

the downspouts and led them away from the house and covered the inlets with tape to

reduce ground water pressure during heavy rains. She said she had good reason to

believe her corrective efforts were readily observable. While Denver testified the plastic

piping and covered inlets were concealed by ground cover, the photographs introduced




                                             16
at trial contradicted his testimony and showed that Amy’s corrective efforts were open

and obvious and not hidden. After this was pointed out on cross-examination, Denver

admitted that he saw the downspout extensions during his visits to the property.

Significantly, Gregg testified there are no public storm sewers to tie into along Billings

Road, and residents are not allowed to attach their downspouts to the drain. Rather,

they are required to attach piping to the end of the downspouts to allow water to be

directed away from the house and drain onto the ground. He said this is how rain water

has been diverted on the property since the home was built in the 1960s. The court

found that there was no credible evidence that Amy knew about any of the other alleged

material defects or that she made any effort to conceal any defect.

       {¶57} Third, the court found that Oryann failed to prove it relied on any

misrepresentation or concealment of any allegedly material defect.             The court

referenced the evidence that for over one year before signing the contracts, Denver

aggressively investigated the property’s condition and declined to rely on any

representation. He repeatedly complained about defects he perceived on the property

and Gregg’s efforts to correct them. The court found Denver and Tracy had possession

of the property for two months before the closing and in that period, Denver had

employees from Tracy’s other companies explore and correct most of the alleged

material defects on the property before Oryann participated in the closing and accepted

the title transfer.

       {¶58} In addition, the court noted that a paragraph in the Real Estate Purchase

Agreement, entitled “CONDITION OF PROPERTY – INSPECTION, provided:

       {¶59} The * * * Buyer has already inspected the property and accepts it in
             its present condition. The Seller has made no promises concerning



                                           17
             the land and is selling the land as is with no condition or promises
             being made. The buyer accepts the property in this as is condition
             and expects nothing further from the Seller than clear title.”

      {¶60} Before completing the sale, Oryann required SL & MB to modify this

provision in the Real Estate Purchase Agreement with an addendum to warrant that the

well, well pipes and drain tile are functional and not leaking at the time of sale and that

the barn roof is not leaking at the time of the sale.        The court found that these

warranties evidenced Oryann’s awareness of these issues and thus belie its alleged

reliance on any misrepresentation or concealment of those conditions.

      {¶61} Fourth, the court found that each of the allegedly material defects was

open and obvious or discoverable by a reasonable inspection and that any reliance by

Oryann on any alleged misrepresentation or concealment of Gregg or Amy was not

reasonable. In support of this finding, the court noted that both Barrys had unrestricted

access to the property and unrestrained opportunities to inspect the property

themselves or to retain any more knowledgeable inspector before Oryann agreed to

purchase the property. Denver admitted he personally inspected the property on his

own at least four times. He also admitted that he never hired an inspector to perform a

standard inspection and that Gregg did nothing to hinder him from hiring an inspector.

Denver was thus free to have the property inspected by the inspector(s) of his choosing,

but simply chose not to. Denver said he was not required to obtain an inspection

because Gregg had answered his questions. However, because Denver was on notice

of potential problems with the property, he was not justified in relying on any

representations of the sellers and was on notice of the need for further inspection.




                                            18
Niermeyer v. Cook’s Termite & Pest Control, Inc., 10th Dist. Franklin No. 05AP-21,

2006-Ohio-640, ¶26.

       {¶62} Fifth, the trial court found that Oryann failed to prove the reasonable

amount of any damage resulting from any specific defect on the property. Damages

caused by fraud are measured by the resulting reduction of the value of the property

below the purchase price or the reasonable cost to repair those defects. Northpoint

Props. v. Charter One Bank, 8th Dist. Cuyahoga No. 94020, 2011-Ohio-2512, ¶30. The

court found that Oryann presented no evidence that the defects reduced the fair value

of the property below the purchase price or any evidence showing the reasonable cost

to repair any alleged defect. Instead, Oryann relied solely on cancelled checks written

by unidentified individuals apparently on behalf of two unrelated companies, which

Tracy owned, to pay various unidentified individuals and companies for purposes that

were not described on the checks or by any testimony. Denver said he did not hire any

contractors to perform work in order to save money, but Oryann presented no witnesses

to testify regarding the reasonable cost to repair any alleged defects. Nor did Oryann

present any bills, invoices, or statements for any repairs. Thus, none of the checks

were supported by corresponding invoices from contractors to show that any of the

checks were issued to pay workers for any labor or materials provided to the property.

As a result, the court found no reliable evidence was presented that any of the checks

offered at trial had anything to do with this case.

       {¶63} In determining witness credibility, the court was entitled to consider the

frank and direct nature of Gregg and Amy’s testimony; that Denver’s testimony was

often based on speculation and assumptions rather than facts; and that Denver was




                                             19
convicted of felony impersonation of a police officer in 2006 in Cuyahoga County.

Based on our review of the record, the trial court did not err in making its findings as to

each element of fraud as each was supported by competent, credible evidence.

       {¶64} Oryann’s cross-assignment of error is overruled.

       {¶65} For the reasons stated in this opinion, it is the order and judgment of this

court that the judgment of the Lake County Court of Common Pleas is affirmed in part

and reversed in part, and this case is remanded for further proceedings consistent with

this opinion.



COLLEEN MARY O’TOOLE, J., concurs,

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




                                            20
