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Roberts v. McCoy

Court of Appeals of Ohio, Twelfth District, Butler

April 10, 2017

AMANDA ROBERTS, Plaintiff-Appellant,
DENISE MCCOY, Defendant-Appellee.


          Dennis Lee Adams, for plaintiff-appellant

          Stephen C. Lane, for defendant-appellee


          HENDRICKSON, P.J.

         {¶ 1} Plaintiff-appellant, Amanda Roberts, appeals a decision of the Butler County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Denise McCoy. For the reasons that follow, we affirm the decision of the trial court.

         {¶ 2} On August 29, 2013, McCoy purchased the property in question at 2622 Hilda Avenue, Hamilton, Ohio. After completing the purchase, McCoy began performing repairs to prepare the property for resale. McCoy never lived at the Hamilton residence. McCoy completed the repairs between November 2013 and March 2014. The relevant repairs included installing a drop ceiling in the basement, replacing the lower half of portions of the basement drywall, and replacing a toilet and faucet in the upstairs bathroom. McCoy hired a contractor with 15 years of experience, Troy Janutolo, to perform most of the repair work. In the basement, Janutolo replaced the drywall and installed a portion of the drop ceiling. Specifically, Janutolo installed the track for the acoustical ceiling tiles by attaching the track to the floor joists. McCoy then placed the acoustical ceiling tile in the tracks installed by Janutolo. During these repairs, neither McCoy nor Janutolo observed any condition they believed to be mold or mildew on the floor joists or on the backside of the replaced drywall. The front of the replaced drywall did indicate residual damage from moisture.

         {¶ 3} In early May 2014, Roberts found the Hamilton property listed for sale online. She visited the property with her realtor. During the visit, Roberts did not personally walk through the entire home. Rather, she "stood in the living room and the kitchen" for "maybe five minutes" because she "knew [she] wanted the house." On May 13, 2014, Roberts contracted to purchase the property. The purchase agreement included a contingency provision making the sale subject to a whole house inspection conducted by Roberts at her expense. McCoy indicated the repairs done to the home and underlying justifications for such repairs by completing an Ohio Residential Property Disclosure Form ("Disclosure Form"). On the Disclosure Form, McCoy disclosed that "[i]t appears the previous owner unhooked [the] laundry room sink and let the basement flood, all water damaged materials were removed[, ]" and "I don't believe there is any mold in the home." McCoy did not make any representations to Roberts other than the information contained in the Disclosure Form. Additionally, the Disclosure Form itself advised Roberts in bold text, "every home contains mold. Some people are more sensitive to mold than others. If concerned about this issue, purchaser is encouraged to have a mold inspection done by a qualified inspector."

         {¶ 4} Roberts second visit occurred during the performance of a home and termite inspection by a licensed inspector. Again, she limited her visit to the confines of the kitchen. Shortly after the inspection, Roberts received the inspection report by e-mail and forwarded it to her realtor. Roberts did not review the inspection report before closing and was unaware of the parameters of the inspection. On July 10, 2014, Roberts closed on the property and she moved into the home two days later. When Roberts attempted to put up a shower rod in the upstairs bathroom on August 3, 2014, a portion of the wall broke free and fell to the ground. Roberts took a closer look at the wall and noticed what appeared to be mold in the upstairs bathroom. This revelation caused Roberts to check the basement where she moved a ceiling tile and discovered what appeared to be mold on the floor joists.

         {¶ 5} The next day, Roberts hired a certified mold inspector to conduct further inspection on what she believed to be mold. The inspection revealed black mold on the basement rafters, living room area, and basement exterior walls. A few weeks later, Clint Grubb, Roberts' neighbor, advised her that McCoy informed him that the basement was flooded at the time of McCoy's purchase and that McCoy replaced the basement drywall, which displayed visible exterior mold.

         {¶ 6} On October 8, 2014, Roberts commenced this action against McCoy alleging negligent misrepresentation, fraudulent concealment, breach of contract, unjust enrichment, and fraud. Roberts alleged McCoy was aware of the mold condition when she completed the Disclosure Form, and that McCoy intentionally misrepresented the condition of the residence to induce its sale. Roberts further alleged the mold condition was undiscoverable during inspections prior to the sale because McCoy concealed it behind the recently installed drywall and drop ceiling.

         {¶ 7} On November 20, 2015, McCoy moved for summary judgment on Roberts' claims. After briefing on the matter, the trial court granted McCoy's motion for summary judgment on all claims. Roberts timely appealed the decision of the trial court.

         {¶ 8} Assignment of Error No. 1:


         {¶ 10} In her sole assignment of error, Roberts presents two issues for review. First, Roberts asserts a material issue of fact existed regarding whether the mold in the ceiling was an observable defect that would have been discovered by a prudent person upon reasonable inspection. Second, Roberts contends a material issue of fact existed ...

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