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Carrico v. Bower Home Inspection, LLC

Court of Appeals of Ohio, Fifth District, Knox

May 30, 2017

TIM CARRICO, ET AL Plaintiffs-Appellants
v.
BOWER HOME INSPECTION, LLC, ET AL Defendants-Appellees

         Civil appeal from the Mount Vernon Municipal Court, Case No. 16CVH00063

          For Plaintiffs-Appellants PHILLIP LEHMKUHL

          For Defendants-Appellees NOEL ALDEN

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, Hon. Earle E. Wise, J.,

          OPINION

          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 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 Rule 60(B) motion and granted ...


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