Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Lyndhurst Municipal Court Case No. 17CVF01253
Diemert & Associates Co., L.P A., Joseph W. Diemert, and
Shannon D. Parker, for appellant.
Kugelman Co., L.P.A., and Harvey Kugelman, for appellee.
JOURNAL ENTRY AND OPINION
A. JONES, SR., JUDGE.
1} Plaintiff-appellant Maureen Diemert ("Diemert")
appeals the trial court's dismissal of her claims against
defendant-appellee Lilly Binstock ("Binstock").
Finding no merit to the appeal, we affirm.
2} In 2017, Diemert filed a complaint against Binstock in
Lyndhurst Municipal Court alleging fraudulent
misrepresentations stemming from a Mayfield Heights house she
purchased in 2015 from then 88-year old
Binstock. Diemert alleged that shortly after moving
into the house, she began experiencing water problems and had
to spend $22, 000 to remedy the damage to her home.
3} The matter proceeded to a bench trial in front of a
4} Binstock owned the subject property for a number of years,
but was not the original owner. In 1992 and 1993, Binstock
had waterproofing work done on the house. Diemert purchased
the house in November 2015 and testified that within three or
four days of moving into the house, water came up through the
drains in the basement. Diemert hired a plumber to snake the
drain, but that did not fix the problem. Diemert hired ABV
Contractors to repair drain tile and down spouts, waterproof
the basement, and install a sump pump. She also hired M&G
Group to waterproof the foundation under her patio.
5} Diemert testified that when she purchased the house, the
purchase agreement stated that the house was being sold
"as is." Binstock provided a Residential Property
Disclosure Form. In Section B of the disclosure statement,
Binstock checked that she did not know of any current or
previous leaks or backups with the sewer system.
6} Tom Mannarino, owner of M&G Group, testified that his
company removed three to four inches of side patio,
waterproofed the side of the property, and installed new
drain tile. He was not able to tell when the water problem
started and did not know whether Binstock knew of the problem
prior to selling her house to Diemert.
7} Tom Jamieson ("Jamieson"), director of the
Mayfield Heights building department, testified that there
was an improper tie-in of the sewer line to the sanitary line
at the house. According to Jamieson, the city never issued a
permit to allow the tie-in of the sewer to the sanitary line
and the city would not issue such a permit because it would
violate city building code. Jamieson testified that he did
not know when the sewer line was connected to the sanitary
line or how it was connected. He also did not know whether
the improper tie-in happened during the work Binstock had
done in the 1990s. He conceded that the tie-in could date
back to the original construction of the house.
8} Valerio Frabotta, vice president of ABV Contractors, also
testified that the water problems at the house were the
result of an improper tie-in of the sanitary and sewer lines.
His company performed excavation and waterproofing work to
correct the problem. He admitted he had never met Binstock
and did not know what she knew about the water problem in the
9} Mayfield Township Building Inspector Michael Hlad
("Hlad") testified that the house's sanitary
line was tied into the sewer line and that such a connection
was illegal, explaining that the sanitary line is not
designed to handle the volume of water that flows through the
sewer line. As a result, water will back up into the
basement. Hlad testified that he did not know when the
improper tie-in happened and the water ...