[Cite as Nationwide Ins. Co. v. Knott, 2012-Ohio-1351.]


                                        COURT OF APPEALS
                                      MORGAN COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


NATIONWIDE INSURANCE COMPANY                                 JUDGES:
                                                             Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee                                           Hon. Sheila G. Farmer, J.
                                                             Hon. John W. Wise, J.
-vs-

CHARLES C. KNOTT, et al.

Defs.-3rd Party Plaintiffs-Appellants                        Case No. 11 AP 0004

-vs-

MARVIN KONKLE, et al.
                                                             OPINION
Third Party Defendants-Appellees



CHARACTER OF PROCEEDING:                                  Civil Appeal from the Court of Common
                                                          Pleas, Case No. 10 CV 0080

JUDGMENT:                                                 Affirmed

DATE OF JUDGMENT ENTRY:                                   March 29, 2012

APPEARANCES:

For Plaintiff-Appellee                                    For 3rd Party Plaintiffs-Appellants

JASON C. HUNTER                                           STEVEN T. SLOAN
280 North High Street, Suite 810                          MOLLICA, GALL, SLOAN,
Columbus, Ohio 43215                                      SILLERY & MCCARTHY CO. LPA
                                                          35 North College Street
For 3rd Party Defendants-Appellees                        Post Office Drawer 958
                                                          Athens, Ohio 45701
RICHARD M. LEWIS
CHRISTEN N. FINLEY
JENNIFER L. ROUTTE
RICHARD M.LEWIS, LLC
295 Pearl Street, P. O. Box 664
Jackson, Ohio 45640
Morgan County, Case No. 11 AP 0004                                                        2

Wise, J.

         {¶1}   Defendants-Third Party Plaintiffs/Appellants Charles C. Knott, et al. appeal

the August 17, 2011, decision of the Morgan County Court of Common Pleas granting

summary judgment in favor of Appellees Marvin and Jean Konkle.

                            STATEMENT OF THE CASE AND FACTS

         {¶2}   On or about November 27, 2006, Charles and Leslie Knott entered into an

agreement for the purchase of a farm and residence on Williams Bridge Road owned by

Marvin and Jean Konkle. Marvin Konkle, a former realtor, initially prepared a contract

which was followed by a Memorandum of Understanding.

         {¶3}   Prior to completion of the sale agreement, the Konkles moved out of the

house and the Knotts moved in.

         {¶4}   On November 24, 2008, the Konkles filed a Complaint seeking to enjoin

the Knotts from using a wood burning stove, which the Konkles alleged would create an

unreasonable hazard if connected to the chimney in the house. (Case No. 08 CV

0187).

         {¶5}   A fire occurred on February 19, 2009, that damaged the house which was

the subject of the agreement for sale. The fire resulted from use of the wood-burning

stove, which the Knotts had re-connected and used.

         {¶6}   The house burned while it was in the possession of the Knotts. Legal title,

however, was still in the name of the Konkles, who had continued to maintain an

insurance policy through Nationwide Insurance Company on the property. Nationwide

Insurance Company paid $139,321.84 to the Konkles on their insurance claim for

damages resulting from the fire.
Morgan County, Case No. 11 AP 0004                                                     3


       {¶7}   On April 28, 2009, because the fire that destroyed the house rendered the

Konkles' concerns that gave rise to their request for injunctive relief moot, the Konkles

filed an Amended Complaint in Case No. 08 CV 0187.

       {¶8}   In their Amended Complaint, the Konkles asserted claims for the loss of

the house due to the fire. The Konkles also requested declaratory relief from the court

declaring the rights of the parties to the insurance proceeds payable by Nationwide

under the policy issued to the Konkles insuring the house at 80 Williams Bridge Rd.,

Chesterhill, Ohio.

       {¶9}   The Konkles and the Knotts settled their claims relating to acquisition of

title to the real estate and title was conveyed from the Konkles to the Knotts. Under the

terms of the settlement, the Knotts received a credit against the purchase price they

were to have paid the Konkles for the property in the amount paid by Nationwide for

damage to the house.

       {¶10} Nationwide Insurance Company subsequently filed a subrogation

Complaint which alleged that Appellants, Charles and Lesley Knott, negligently caused

the fire at 80 Williams Bridge Road and that as a result, they should have to pay back

the $139,321.84 which Nationwide paid to the Konkles. (Case No. 10CV0080)

       {¶11} The Knotts, in turn, filed a third Party Complaint against Appellees Marvin

and Jean Konkle alleging, among other things, that the Konkles negligently

misrepresented the condition of the real property at issue and that the Konkles'

misrepresentation caused or contributed to the fire at 80 Williams Bridge Road.

       {¶12} On or about May 23, 2011, the Konkles moved for summary judgment on

the Knotts' Third-Party Complaint. Attached to the Konkles' Motion for Summary
Morgan County, Case No. 11 AP 0004                                                      4


Judgment/Motion to Dismiss was a copy of a 2008 Civil Complaint filed by the Konkles

against the Knotts, which involved claims arising from the sale of the real estate from

the Konkles to the Knotts along with a request for injunctive relief to prevent the Knotts

from using the wood-burning stove with the chimney in the house. Also attached was an

Affidavit executed by Jean Konkle concerning the settlement of the claims relating to

title to the real estate and disposition of the insurance proceeds from Nationwide

Insurance Company.

      {¶13} On June 14, 2011, the Knotts filed a Memorandum Contra the Konkles'

Motion for Summary Judgment/Motion to Dismiss. The Knotts' Memorandum Contra

was supported by Affidavits of Charles Knott and Lesley Knott regarding what they had

been told by Mrs. Konkle concerning a suspected problem with the chimney, their

experience with wood-burning stoves, the steps they took to have the chimney

inspected, and the conclusions of the State Fire Marshall and an investigator hired by

Appellee, Nationwide Insurance Company, that the fire which occurred on the real

property at issue had originated not in the chimney but in a cleanout located in the

basement.

      {¶14} On August 17, 2011, the trial court issued a Journal Entry finding there

existed no genuine issue of material fact and granted summary judgment in favor of the

Konkles on the Knotts’ Third Party Complaint.

      {¶15} Appellants now appeal, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

      {¶16} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THERE WAS

A GENUINE ISSUE OF MATERIAL FACT WHICH INCLUDED BUT WAS NOT
Morgan County, Case No. 11 AP 0004                                                       5


LIMITED TO THE FACT THAT THE TRIAL COURT WAS PRESENTED WITH

AFFIDAVITS SETTING FORTH OPPOSING FACTS MATERIAL TO THE CASE.

       {¶17} “II. THE TRIAL COURT ERRED BY FAILING TO APPLY AND/OR

PROPERLY        CONSTRUE      OHIO     REVISED       CODE    §5302.30    AND    RELATED

PROVISIONS REGARDING RESIDENTIAL REAL ESTATE TRANSACTIONS.”

                                                I.

       {¶18} In their first Assignment of Error, Appellants maintain the trial court erred

in granting Appellees’ motion for summary judgment. We disagree.

                                “Summary Judgment Standard”

       {¶19} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,

in pertinent part:

       {¶20} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only therefrom, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in his favor.”
Morgan County, Case No. 11 AP 0004                                                       6


         {¶21} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed.      The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

         {¶22} It is based upon this standard that we review Appellant’s Assignments of

Error.

         {¶23} In their third party complaint, Appellants set forth a claim of negligence

against Appellees, claiming that the Konkles breached a duty to the Knotts by failing to

disclose defects in the home which caused or contributed to the fire. Appellants also

argued that the Konkles prevented them from obtaining insurance on the property by

failing to provide them with a deed and mortgage or a land contract as evidence of their

insurable interest in the property.

         {¶24} Appellees, in support of their motion for summary judgment, argued that

they warned Appellants of the dangers of using the wood burning stove and went so far

as seeking an injunction to prevent Appellants from re-connecting the stove to the

chimney, but that Appellants used the stove anyway. Appellees further argued that
Morgan County, Case No. 11 AP 0004                                                     7


Appellants received the full benefit of the insurance proceeds paid by Nationwide for the

fire damage, when Appellees gave them a credit for said amount against the purchase

price of the house.

       {¶25} Upon review, we find that the trial court did not err in finding that no

genuine issue of material fact exists in this matter.

       {¶26} We find that the record supports that Appellees in this matter did not

negligently fail to disclose the condition of the wood burning stove, instead giving

Appellants specific notice that use of the stove would create a dangerous condition and

going so far as to seek an injunction to prevent Appellants from using such stove.

       {¶27} Additionally, we further find that Appellants received the benefit of

Appellees’ insurance coverage and received a credit toward the purchase price in the

amount of the insurance proceeds Appellees received from Nationwide.           Appellees

were therefore not damaged by their failure to secure their own insurance on the

property.

       {¶28} Appellant’s first Assignment of Error is overruled.

                                                 II.

       {¶29} In their second Assignment of Error, Appellants allege that the trial court

failed to properly apply R.C. §5302.30. We disagree.

       {¶30} Appellants herein argue, and Appellees do not dispute, that Appellees

were required to provide them with a residential disclosure form as prescribed in R.C.

5302.30, which provides in relevant part:

       {¶31} Revised Code §5302.30, Property disclosure form for transfer of

residential real property, provides:
Morgan County, Case No. 11 AP 0004                                                           8


       {¶32} “(C) Except as provided in division (B)(2) of this section and subject to

divisions (E) and (F) of this section, every person who intends to transfer any residential

real property on or after July 1, 1993, by sale, land installment contract, lease with

option to purchase, exchange, or lease for a term of ninety-nine years and renewable

forever shall complete all applicable items in a property disclosure form prescribed

under division (D) of this section and shall deliver in accordance with division (I) of this

section a signed and dated copy of the completed form to each prospective transferee

or prospective transferee's agent as soon as is practicable.”

       {¶33} A further reading of R.C. §5302.30, reveals that a remedy is provided for

failure to comply with such statute:

       {¶34} “(K)(1) Except as provided in division (K)(2) of this section, but subject to

divisions (J) and (L) of this section, a transfer of residential real property that is subject

to this section shall not be invalidated because of the failure of the transferor to provide

to the transferee in accordance with division (C) of this section a completed property

disclosure form as prescribed under division (D) of this section.

       {¶35} “(2) Subject to division (K)(3)(c) of this section, if a transferee of residential

real property that is subject to this section receives a property disclosure form or an

amendment of that form as described in division (G) of this section after the transferee

has entered into a transfer agreement with respect to the property, the transferee, after

receipt of the form or amendment, may rescind the transfer agreement in a written,

signed, and dated document that is delivered to the transferor or the transferor's agent

or subagent in accordance with divisions (K)(3)(a) and (b) of this section, without

incurring any legal liability to the transferor because of the rescission, including, but not
Morgan County, Case No. 11 AP 0004                                                         9


limited to, a civil action for specific performance of the transfer agreement. Upon the

rescission of the transfer agreement, the transferee is entitled to the return of, and the

transferor shall return, any deposits made by the transferee in connection with the

proposed transfer of the residential real property.

       {¶36} “(3)(a) Subject to division (K)(3)(b) of this section, a rescission of a

transfer agreement under division (K)(2) of this section only may occur if the

transferee's written, signed, and dated document of rescission is delivered to the

transferor or the transferor's agent or subagent within three business days following the

date on which the transferee or the transferee's agent receives the property disclosure

form prescribed under division (D) of this section or the amendment of that form as

described in division (G) of this section.

       {¶37} “(b) A transferee may not rescind a transfer agreement under division

(K)(2) of this section unless the transferee rescinds the transfer agreement by the

earlier of the date that is thirty days after the date upon which the transferor accepted

the transferee's transfer offer or the date of the closing of the transfer of the residential

real property.

       {¶38} “(c) A transferee of residential real property may waive the right of

rescission of a transfer agreement described in division (K)(2) of this section.

       {¶39} “(d) A rescission of a transfer agreement is not permissible under division

(K)(2) of this section if a transferee of residential real property that is subject to this

section receives a property disclosure form as prescribed under division (D) of this

section or an amendment of that form as described in division (G) of this section prior to

the transferee's submission to the transferor or the transferor's agent or subagent of a
Morgan County, Case No. 11 AP 0004                                                             10


transfer offer and the transferee's entry into a transfer agreement with respect to the

property.

       {¶40} “(4) If a transferee of residential real property subject to this section does

not receive a property disclosure form from the transferor after the transferee has

submitted to the transferor or the transferor's agent or subagent a transfer offer and has

entered into a transfer agreement with respect to the property, the transferee may

rescind the transfer agreement in a written, signed, and dated document that is

delivered to the transferor or the transferor's agent or subagent in accordance with

division (K)(4) of this section without incurring any legal liability to the transferor

because of the rescission, including, but not limited to, a civil action for specific

performance of the transfer agreement. Upon the rescission of the transfer agreement,

the transferee is entitled to the return of, and the transferor shall return, any deposits

made by the transferee in connection with the proposed transfer of the residential real

property. A transferee may not rescind a transfer agreement under division (K)(4) of this

section unless the transferee rescinds the transfer agreement by the earlier of the date

that is thirty days after the date upon which the transferor accepted the transferee's

transfer offer or the date of the closing of the transfer of the residential real property.”

       {¶41} In the instant case, there is no evidence in the record that Appellants

made any attempt to rescind the offer to purchase within 30 days of signing, instead

choosing to go forward with the purchase of the property even after the fire occurred.

       {¶42} Further, while Appellees did fail to provide Appellees with a property

disclosure form, they did give Appellants specific notice of a problem with the wood

burning stove. There is no evidence that Appellees knew of or attempted to conceal the
Morgan County, Case No. 11 AP 0004                                                 11


existence of or a problem with the cleanout. Although it would seem that if Appellees

did know of a problem with such cleanout, there would have been no reason to not

include such knowledge in their notice and motion for injunction regarding the wood

burning stove.

      {¶43} Based on the foregoing, we find Appellants’ second assignment of error

not well-taken and overrule same.

      {¶44} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Morgan County, Ohio, is affirmed.


By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.



                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
JWW/d 0306
Morgan County, Case No. 11 AP 0004                                           12


           IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




NATIONWIDE INSURANCE COMPANY               :
                                           :
Plaintiff-Appellee                         :
                                           :
-vs-                                       :       JUDGMENT ENTRY
                                           :
CHARLES C. KNOTT, et al.                   :
                                           :
Defendants-3rd Party Plaintiffs-Appellants :       Case No. 11 AP 0004
                                           :
-vs-                                       :
                                           :
MARVIN KONKLE, et al.                      :
                                           :
Third Party Defendants-Appellees           :




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Morgan County, Ohio, is affirmed.

      Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                            JUDGES
