Court of Appeals of Ohio, First District, Hamilton
STEPHEN J. WASHBURN, Plaintiff-Appellant,
MARINKO GVOZDANOVIC, Defendant-Appellee.
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
Matre Law Group, Co., LPA and Kerrie K. Matre, for
Law Firm, LLC, Christopher P. Finney and Bradley M. Gibson,
Plaintiff-appellant Stephen J. Washburn has appealed from the
trial court's entry granting summary judgment to
defendant-appellee Marinko Gvozdanovic on Washburn's
claims for fraud, breach of contract, and a violation of R.C.
Washburn has raised three assignments of error for our
review. In the first two assignments of error, he challenges
the trial court's entry of summary judgment on his claim
for fraud. In the third assignment of error, Washburn argues
that the trial court erred in striking the affidavit of his
expert witness. We affirm.
and Procedural Background
On October 25, 2009, Washburn and Gvozdanovic entered into a
contract for Washburn to purchase the property located at 622
Fleming Road from Gvozdanovic for $92, 000. The contract
provided that the property was being sold "as is."
Gvozdanovic had executed a "Residential Property
Disclosure Form, " which Washburn signed and
acknowledged on the date that the contract was entered into.
Section E of the disclosure form was titled "STRUCTURAL
COMPONENTS, " and it contained the following language:
"Do you know of any movement, shifting, deterioration,
material cracks/settling (other than visible minor cracks or
blemishes) or other material problems with the foundation,
basement/crawl space, floors, or interior/exterior
walls?" In response to this question, Gvozdanovic
checked a box marked yes and wrote that "there has been
ground movement in the area."
Prior to closing on the property, Washburn visited it
multiple times and had several inspections conducted.
Washburn had noticed a small amount of mold on his first
visit to the property, and he hired Tencon, Inc., a technical
environmental consulting company, to inspect the property for
water issues. On December 30, 2009, Tencon sent Washburn a
report indicating that it had found visible mold growth in
the basement of the home, and that "ground water appears
to be entering the basement via the cement block wall through
the block structure, through minor cracks and/or where the
blocks join the footer and basement floor."
On February 11, 2010, Truman P. Young & Associates
conducted a structural inspection on the property. The report
issued following that inspection indicated that "[t]he
basement floor and first floor are noticeably tilted towards
the front of the house, indicating probable settlement of the
foundation." The report further stated that "[i]t
is likely that moisture is penetrating the basement walls
through cracks, however, the extent and severity of any
cracking cannot be determined without removing the gypsum
board wall finish and wood furring." The report noted
that the inspection did not involve the removal of any
finishes to view concealed conditions. Washburn did not
remove the gypsum board prior to closing.
Washburn closed on the property on March 19, 2010. TKS
Construction Services then performed construction and
remodeling work on the home. TKS invoiced Washburn for its
work on May 20, 2010. Sometime prior to sending the invoice,
TKS informed Washburn that it had discovered cracked
foundation walls after damaged drywall had been removed
during mold remediation.
Approximately one year after taking possession of the
property, Washburn noticed that his asphalted driveway had
begun to crumble and heave, that horizontal cracks were
forming on the front porch, and that new cracks were forming
in the basement walls. Washburn hired Quentin Gorton, a
geotechnical engineer, to inspect the property. After his
inspection on May 25, 2011, Gorton told Washburn that the
property sat on an active landslide. He additionally informed
Washburn that he had previously been hired by Gvozdanovic to
inspect the property, and that he had told Gvozdanovic that
the property sat on an active landslide.
On May 22, 2015, Washburn filed suit against Gvozdanovic,
asserting claims for breach of contract, fraud, and a
violation of R.C. 5302.30. With respect to the fraud claim,
Washburn's complaint alleged that Gvozdanovic had
committed fraud by misrepresenting the condition of the
property in the disclosure form and by concealing the damage
caused by the landslide with new drywall and asphalt.
The trial court issued a case management order on July 30,
2015. The order provided that Washburn's experts had to
be identified in writing by December 14, 2015. The order
further stated that "[e]xperts not named by the dates
set forth herein shall not be permitted to testify. Expert
reports shall be provided to opposing counsel within 30 days
after the expert has been identified unless counsel otherwise
agrees." In his responses to Gvozdanovic's
interrogatories, which were served upon Gvozdanovic's
counsel on December 3, 2015, Washburn named Gorton as an
expert witness. Washburn's discovery responses further
indicated that he had received only an oral report from
Gorton. Washburn did not provide a written report by the
Gvozdanovic moved for summary judgment on Washburn's
claims. Along with his memorandum in opposition to
Gvozdanovic's motion for summary judgment, Washburn filed
both his own affidavit and an affidavit from Gorton. Attached
to Gorton's affidavit was a letter from Gorton to
Washburn's counsel stating that the damage to
Washburn's property had been caused by a landslide. This
letter is a written report of the expert's opinions.
Gvozdanovic filed a motion to strike Gorton's affidavit
because Washburn had failed to timely provide an expert
report from Gorton.
In the same entry, the trial court granted both
Gvozdanovic's motions to strike Gorton's affidavit
and for summary judgment. With respect to the motion to
strike, the trial court mistakenly found that Washburn had
failed to identify Gorton as an expert prior to the deadline
set in the case.
The trial court provided numerous reasons in support of its
grant of summary judgment. As relevant to this appeal, it
found that Washburn's claim for fraud was filed outside
of the applicable statute of limitations. And with respect to
the merits of the claim for fraud, the trial court found that
summary judgment was appropriate because Washburn failed to
establish that Gvozdanovic fraudulently concealed the
existence of a landslide or that he had justifiably relied on
a misrepresentation made by Gvozdanovic.
Washburn has appealed from the trial court's entry. His
assignments of error challenge the trial court's grant of
summary judgment on his claim for fraud and the trial
court's striking of Gorton's affidavit. Washburn
raises no challenge to the trial court's entry of ...