appeal from the Mount Vernon Municipal Court, Case No.
Plaintiffs-Appellants PHILLIP LEHMKUHL
Defendants-Appellees NOEL ALDEN
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, Hon.
Earle E. Wise, J.,
Appellants appeal the September 26, 2016 judgment entry of
the Mount Vernon Municipal Court granting summary judgment.
& Procedural History
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.
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.
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.
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
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.
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."
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