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Fowler v. Fimiani

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

PATRICIA L. FOWLER, Plaintiff-Appellant,
CAROLYN J. FIMIANI, Defendant-Appellee.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV 001782.

          Michael C. Lucas, Wiles and Richards, (For Plaintiff-Appellant).

          Anthony J. Aveni, Cannon, Aveni & Malchesky Co., L.P.A., (For Defendant-Appellee).



         {¶1} Appellant, Patricia L. Fowler ("Patricia"), appeals the summary judgment of the Lake County Court of Common Pleas in favor of appellee, Carolyn J. Fimiani ("Carolyn"). At issue is whether a genuine issue of material fact exists on Patricia's fraudulent misrepresentation and fraudulent concealment claims in connection with her purchase of Carolyn's home. For the reasons that follow, we affirm.

         {¶2} On October 19, 2015, Patricia filed a complaint against Carolyn alleging breach of contract (first cause of action) and fraudulent misrepresentation/concealment (second cause of action). For her breach-of-contract claim, Patricia alleged that, in the course of her purchase of Carolyn's home in Mentor in 2014, Carolyn did not fully disclose all incidents of flooding in the basement of her home. For her fraud claim, Patricia alleged Carolyn made false representations concerning, or concealed, latent defects regarding water damage in her home to induce Patricia to buy it. Carolyn filed an answer denying the material allegations of the complaint.

         {¶3} The statement of facts that follows is derived from the evidence submitted by the parties on summary judgment. Carolyn, who is a 77-year old widow, testified in deposition that she and her now deceased husband moved into their residence on Chillicothe Road in 1973, and in the following years, raised their four children there. She said that a 100-year flood occurred in Mentor in 2006. As a result of this flooding, Carolyn's basement - along with all the other basements in the area - had water damage. Carolyn and her husband hired a contractor to extract the water, replace drywall, and replace the tile flooring. In March 2007, Carolyn's husband passed away. In an effort to be proactive and prevent future problems, in the spring of 2007, Carolyn hired a contractor to waterproof the front and sides of the home.

         {¶4} In 2009, Carolyn discovered some dampness in the basement so she hired another contractor who again waterproofed the front and sides of her home. Later that year, Carolyn saw some seepage near the back wall and also had that wall waterproofed.

         {¶5} Carolyn said the 2009 waterproofing appeared to resolve the leakage problem because, for several years thereafter, there was no water in the basement.

         {¶6} Then, in 2013, Mentor experienced a heavy rain that caused flooding generally in the area. Carolyn said there was 4" to 6" of water at one side of the basement. Thereafter, she hired a contractor, who removed the baseboards in that area, drilled some holes in the drywall under the baseboards and ran fans to dry out the area. The contractor then re-installed the baseboards, painted the drywall, and replaced some tile.

         {¶7} In 2014, Carolyn decided to downsize and listed the property for sale with Howard Hanna. On the Ohio Residential Disclosure Form, when asked if there was any prior or current water intrusion in the basement, Carolyn answered, "yes." When asked to "describe and indicate any repairs completed, " she wrote: "Water Flooding 2006 due to '100 year flooding.' Not sewer issue. Had front and sides of house waterproofed in 2007 and had back of house waterproofed in 2009." Patricia admitted in discovery that the only representations Carolyn made about the condition of the basement were those contained in the disclosure form.

         {¶8} When asked in her deposition why she did not mention the 2013 flooding incident, Carolyn testified she thought it was an "exception" because it was an "act of God." She also said she did not think of it when filling out the form because she thought the water issue was resolved.

         {¶9} Carolyn conceded that when she sold the house, there was no visible evidence of flooding or water damage in the basement. However, contrary to Patricia's argument, Carolyn never testified this lack of evidence was due to steps she took to conceal the prior water intrusion and damage. Carolyn said she left the remaining repair materials (caulk, paint, and tiles) in the basement in case they were ever needed again.

         {¶10} The parties signed a purchase agreement for the house in September 2014, which stated the house was being sold "as is, " and included a contingency based on Patricia's acceptance of the results of a professional general home inspection.

         {¶11} In the 15-page report prepared by Patricia's inspector, Mark Bornhorst, he stated, with respect to his findings and recommendations concerning the basement:

{¶12} Horizontal, hairline crack noted across rear wall. * * * Horizontal cracks indicate possible frost action or soil expansion problems have occurred in the past. This is typically due to poor backfill and drainage along foundation wall. Excavation of foundation and backfill with free drainage gravel should have been done in waterproofing the foundation. Verify that wall was properly backfilled with owner or waterproofing contractor (Emphasis added.)

         {¶13} There is no evidence Patricia followed her inspector's recommendation to inquire into whether the foundation was properly waterproofed. Instead, following the inspection, she signed an amendment to the purchase offer, which removed the inspection contingency on the condition that Carolyn perform certain work to the house and pay an additional $600 toward Patricia's closing costs.

         {¶14} Patricia stated in affidavit that in June 2015, during a rainstorm, water poured in through the basement walls and accumulated on the basement floor. She said that if she had been aware of the water problems and damage in 2008 and 2013, she would not have bought the home.

         {¶15} On October 31, 2016, Carolyn filed a motion for summary judgment supported by evidentiary materials. Patricia filed a brief in opposition along with a motion to strike some of the documents attached to Carolyn's summary-judgment motion as not having been properly authenticated. Thereafter, Carolyn filed a reply brief along with a motion to supplement her summary-judgment motion by including an affidavit authenticating the documents she submitted on summary judgment.

         {¶16} The trial court entered judgment granting Carolyn's motion to supplement her motion for summary judgment; denying Patricia's motion to strike Carolyn's summary-judgment ...

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