[Cite as Carrico v. Bower Home Inspection, L.L.C., 2017-Ohio-4057.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
TIM CARRICO, ET AL                                  :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. Craig R. Baldwin, J.
                     Plaintiffs-Appellants          :       Hon. Earle E. Wise, J.,
                                                    :
-vs-                                                :
                                                    :       Case No. 16CA21
BOWER HOME INSPECTION, LLC,                         :
ET AL                                               :
                                                    :       OPINION
                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                Civil appeal from the Mount Vernon
                                                        Municipal Court, Case No. 16CVH00063

JUDGMENT:                                               Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                 May 30, 2017




APPEARANCES:

For Plaintiffs-Appellants                               For Defendants-Appellees

PHILLIP LEHMKUHL                                        NOEL ALDEN
101 North Mulberry Street                               121 East High Street
Mount Vernon, OH 43050                                  Mount Vernon, OH 43050
Knox County, Case No. 16 CA 21                                                           2

Gwin, P.J.

      {¶1}   Appellants appeal the September 26, 2016 judgment entry of the Mount

Vernon Municipal Court granting summary judgment.

                                  Facts & Procedural History

      {¶2}   In September of 2015, appellants Tim and Whitney Carrico purchased the

house, garage, and land located at 1 Grandview Drive in Mount Vernon, Ohio. Prior to

the purchase of the property, appellants hired appellees Chris Bower and Bower Home

Inspection, LLC to perform a home inspection, specifically to inspect whether there was

any visible evidence of wood-destroying insects. The obligation of appellants to purchase

the property was contingent upon receipt of the report by appellees.

      {¶3}   Appellees issued a written report stating that, at the time of the inspection,

there was no visible evidence of wood-destroying insects. Subsequent to the purchase

of the property, appellants found evidence of damage in the crawl-space caused by wood-

destroying insects.

      {¶4}   Appellants filed a complaint against appellees on January 27, 2016 for:

breach of fiduciary duty, negligence, breach of contract, and violations of the Ohio

Consumer Sales Practices Act. Appellees filed an answer on February 26, 2016.

      {¶5}   On August 1, 2016, appellees filed a motion for summary judgment.

Appellees alleged in their motion for summary judgment that appellants entered into a

valid and enforceable contract titled “Wood Destroying Insect Inspection Report” which

governs the obligations of the parties. Further, that, pursuant to the contract, appellees

had no duty to remove any portion of the home and inspect underneath it and thus

appellants cannot now argue appellees are liable because they did not remove the
Knox County, Case No. 16 CA 21                                                               3


insulation and siding to discover termites in areas inaccessible at the time of the

inspection.

       {¶6}   Attached to appellees’ motion for summary judgment was Exhibit A, the

“Wood Destroying Inspection Report.” Exhibit A was not signed by appellants. The report

stated, “this report is indicative of the condition of the above identified structure(s) on the

date of inspection and is not to be construed as a guarantee or warranty against latent,

concealed, or future infestations or defects.” Further, that “based on a careful visual

inspection of the readily accessible areas of the structure(s) inspected * * *(A) No visible

evidence of wood-destroying insects was observed.” The report concluded no treatment

was recommended as there was no visible evidence of wood-destroying insects at the

time of inspection and stated that a part of the crawlspace was obstructed or inaccessible

due to the insulation and duct work/plumbing/wiring.

       {¶7}   The second page of Exhibit A contains the “scope and limitations of the

inspection” and states there is no warranty related to the report and the report is not a

guarantee or warranty as to the absence of wood-destroying insects or a structural

integrity report. Further, that “no inspection was made in areas which required the

breaking apart or into, dismantling, removal of any object, included but not limited to

moldings, floor coverings, wall coverings, sidings, fixed ceilings, insulation, furniture,

appliances, and/or personal possessions, nor were the areas inspected which were

obstructed or inaccessible for physical access on the date of inspection.”

       {¶8}   On August 19, 2016, the trial court granted appellees’ motion for summary

judgment because appellants failed to file a response. Appellants filed a Civil Rule 60(B)

motion on August 24, 2016. On August 31, 2016, the trial court granted appellants’ Civil
Knox County, Case No. 16 CA 21                                                         4


Rule 60(B) motion and granted appellants leave to file a memorandum in opposition to

the motion for summary judgment.

        {¶9}   In their memorandum in opposition, appellants argued appellees’ Exhibit A

was not properly before the court because it was not signed and was not accompanied

by an affidavit. Appellants further argued appellees provided no proof that the damages

were latent or concealed, or that the damages occurred subsequent to September 3,

2015.

        {¶10} Appellants attached to their memorandum in opposition to motion for

summary judgment the affidavit of Tim Carrico (“Carrico”).      Carrico stated he hired

appellees to perform an inspection for evidence of infestation damages from wood-

destroying insects and, in reliance upon the report issued by appellees, he purchased the

property. Carrico averred that, subsequent to the purchase of the property, but within a

few months, he “personally saw evidence of damage from wood-destroying insects in

clearly visible areas of the crawlspace of the house.” Carrico stated the areas where he

initially saw evidence of damage from wood-destroying insects were not concealed,

hidden, or obstructed from view and were not latent or concealed. Further, that he did

not need to remove any moldings, floor coverings, wall coverings, fixed ceilings,

insulation, furniture, appliances, or personal possessions to initially find many areas

damaged by wood-destroying insects. Carrico averred that after finding many areas of

clearly visible and accessible damage from wood-destroying insects, further investigation

revealed damages in concealed areas also. Carrico stated his complaint is “premised

upon the failure to report blatant, obvious, massive, and readily observable damages to

the house and garage from wood-destroying insects over a period of years, not months.”
Knox County, Case No. 16 CA 21                                                            5


       {¶11} On September 12, 2016, appellees filed a motion for leave to plead to file a

reply brief to appellants’ memorandum in opposition. The trial court granted appellees’

motion on September 13, 2016 and set a non-oral hearing on September 23, 2016.

       {¶12} Appellees filed a reply in support of the motion for summary judgment on

September 16, 2016. Appellees again attached Exhibit A, which was the same “Wood

Destroying Inspection Report” as they submitted with their motion for summary judgment,

but this copy was signed by appellants. Appellees also attached the affidavit of Chris

Bower (“Bower”), stating, “attached as Exhibit A is the signed contract entered into

between the parties I just procured from the closing company on Monday, September 12,

2016.” Bowers further averred there was no visible infestation or defects with the property

at the time of his review and there was no infestation or defects in areas that did not

require the breaking apart or into, dismantling, or removal of any object.

       {¶13} The trial court issued a judgment entry granting appellees’ motion for

summary judgment on September 26, 2016. The trial court found no genuine issue of

material fact existed because: (1) the contract between the parties did not require

appellees to remove insulation and siding to discover termites in areas that were

inaccessible at the time of the inspection; (2) the contract was not a guarantee or warranty

against concealed or future infestations or defects; and (3) the defendants cannot be

negligent for failing to perform a duty they did not have according to the terms of the

contract.

       {¶14} Appellants appeal the September 26, 2016 judgment entry of the Mount

Vernon Municipal Court and assign the following as error:
Knox County, Case No. 16 CA 21                                                             6


       {¶15} “I. THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR

SUMMARY JUDGMENT OF DEFENDANTS.”

       {¶16} In their brief, appellants make two arguments. First, appellants contend the

trial court erred when, in granting appellees’ motion for summary judgment, it accepted

and considered the signed Exhibit A and Bower’s affidavit, which were presented for the

first time in appellees’ reply brief to the motion for summary judgment.

       {¶17} “Typically reply briefs are restricted to matters in rebuttal, not new

arguments. The problem with allowing a new argument to be asserted in a reply in

support of the original motion is that it does not give the party opposing the motion the

opportunity to respond.” Buren v. Karrington Health, Inc., 10th Dist. Franklin No. 00AP-

1414, 2002-Ohio-206; Lawson v. Mahoning County Mental Health Board, 7th Dist.

Mahoning No. 10 MA 23, 2010-Ohio-6389. Allowing a new argument to be asserted in a

reply brief has been characterized as “summary judgment by ambush.” Intl. Fid. Ins. Co.

v. TC Architects, Inc., 9th Dist. Summit No. 23112, 2006-Ohio-4869. “When a new

argument is raised in a reply or supplemental motion for summary judgment, the proper

procedure is to strike the reply or supplemental motion or, alternatively, to allow the

opposing party to file a surreply.” Baker v. Coast to Coast Manpower, LLC, 3rd Dist.

Hancock No. 5-11-36, 2012-Ohio-2840.

       {¶18} In this case, appellants did not attempt to strike the affidavit or exhibit, nor

did they seek leave to file a surreply. This Court has previously held that when an

appellant does not attempt to strike or seek leave to file a surreply, appellant waives any

error. Edwards v. Perry Twp. Board of Trustees, 5th Dist. Stark No. 2015CA00107, 2016-

Ohio-5125; Bank of New York Mellon v. Crates, 5th Dist. Licking No. 15-CA-70, 2016-
Knox County, Case No. 16 CA 21                                                              7


Ohio-2700. Accordingly, we find appellants waived any error by failing to move to strike

Bower’s affidavit/Exhibit A or seeking leave to file a surreply.

       {¶19} Appellants next contend the trial court erred in granting summary judgment

even if Bower’s affidavit and the signed Exhibit A are considered. We agree.

       {¶20} Civ.R. 56 states, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in

       the action, show that there is no genuine issue of material fact and that the

       moving party is entitled to judgment as a matter of law. No evidence or

       stipulation may be considered except as stated in this rule. A summary

       judgment shall not be rendered unless it appears from the evidence or

       stipulation, and only from the evidence or stipulation, 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, that party being

       entitled to have the evidence or stipulation construed mostly strongly in the

       party’s favor. A summary judgment, interlocutory in character, may be

       rendered on the issue of liability alone although there is a genuine issue as

       to the amount of damages.

       {¶21} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
Knox County, Case No. 16 CA 21                                                               8

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

       {¶22} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶23} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrates absence of a genuine issue of fact on a material element of the non-

moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once

the moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist. Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

       {¶24} In this case, the affidavits submitted are contradictory. Bower’s affidavit

states there was no infestation at the time of the inspection. Carrico’s affidavit avers that,

within a few months, he personally saw evidence of damage from wood-destroying

insects in clearly visible areas that was not concealed, hidden, or obstructed from view.

Further, that his complaint is premised upon the failure to report blatant, obvious,
Knox County, Case No. 16 CA 21                                                           9


massive, and readily observable damages to the house and garage from wood-destroying

insects over a period of years, not months. Thus, we find there are genuine issues of

material fact as to when the damage occurred (either before or after the inspection report)

and whether the damages were latent or concealed.

      {¶25} Accordingly, we find the trial court erred in granting summary judgment to

appellees. The September 26, 2016 judgment entry of the Mount Vernon Municipal Court

is reversed and the cause is remanded for further proceedings in accordance with this

opinion.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
