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McDonald v. JP Development Group, L.L.C.

Court of Appeals of Ohio, Eighth District

September 12, 2013

BRIAN McDONALD, ET AL. PLAINTIFFS-APPELLANTS
v.
JP DEVELOPMENT GROUP, L.L.C., ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-763215

ATTORNEY FOR APPELLANTS Daniel S.White

ATTORNEY FOR APPELLEES John F. Burke, III Burkes Law, L.L.C.

BEFORE: McCormack, J., Stewart, A.J., and Jones, J.

JOURNAL ENTRY AND OPINION

TIM McCORMACK, J.

(¶ 1} Plaintiffs-appellants, Brian McDonald ("McDonald") and Danielle Santiago ("Santiago"), appeal the trial court's granting of defendants-appellees, Jason Gedeon ("Gedeon") and JP Development Group L.L.C.'s ("JP Development"), motion for dismissal. For the reasons that follow, we affirm the trial court's decision.

Procedural History and Substantive Facts

(¶2} On August 30, 2011, McDonald and Santiago filed a complaint against Gedeon and JP Development, alleging fraud and fraudulent inducement, or mutual mistake of fact, with respect to the purchase of their home. A bench trial was held on the matter on November 26, 2012. Upon the conclusion of the plaintiffs-appellants' case, JP Development and Gedeon moved for dismissal, which the trial court granted. This timely appeal followed.

(¶ 3} JP Development, a limited liability company, purchased residential property on Lincoln Road in Cleveland Heights from a bank taking title in January 2009. JP Development owned the property for little more than one year prior to selling the home to McDonald and Santiago. Gedeon, the sole member of JP Development, never occupied the home.

(¶ 4} In January 2010, McDonald and Santiago entered into a purchase agreement to buy the Cleveland Heights property. The purchase agreement indicated that the property was being sold "as is, " and it allowed for an inspection of the property prior to purchase. The residential property disclosure form indicated that new plumbing was installed in 2009 as well as a new roof and gutters. The form also indicated that the crawl space has a new moisture barrier. On the form, Gedeon denied having any knowledge of drainage or erosion issues or any structural defects with the foundation, basement and crawl space, floors, or walls of the home. Gedeon testified that he had the following services performed on the house: loose mortar was cleaned up, loose bricks were tuck-pointed, and the walls and floors in the home were painted. He also testified that he did not notice any water infiltration or moisture in the home in the course of performing these repairs.

(¶ 5} Prior to purchasing the home, McDonald testified that he had been in the home multiple times. During these visits, McDonald had a house inspection and inspections for radon and pests. McDonald observed the fresh paint in the basement and testified that the basement looked "bone dry" and he saw no problems with the basement. McDonald testified that the home inspector told him that there was normal moisture for an older Cleveland Heights home and that he recommended the use of a dehumidifier. On cross-examination, McDonald testified that Gedeon never made any specific statements to him about the basement.

(¶6} McDonald and Santiago took possession of the home in March 2010. After the first rain came, McDonald and Santiago saw water intrusion in the basement, occurring thereafter every time it rained. McDonald testified that several areas of the foundation leaked, there is significant water seepage through the basement walls, and the concrete floor is disintegrating. He further testified that his home inspector did not advise him to expect such problems. McDonald attempted to alleviate the problem himself by snaking the storm lines and unclogging the drain by hand, to no avail. Robert Mural, from Mural & Son Inspectional Service, Inc., testified that the water infiltration was likely caused by improperly functioning footer drains, a leaking foundation, and backfill materials not conducive to proper drainage. Mural stated that the cost to repair the basement is $21, 922.

Assignment of Error

The trial court's decision to grant the motion to dismiss in this matter constitutes reversible error on ...


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