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Diemert v. Binstock

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 22, 2019

MAUREEN DIEMERT, Plaintiff-Appellant,
v.
LILLY BINSTOCK, Defendant-Appellee.

          Civil Appeal from the Lyndhurst Municipal Court Case No. 17CVF01253

         JUDGMENT: AFFIRMED

          Diemert & Associates Co., L.P A., Joseph W. Diemert, and Shannon D. Parker, for appellant.

          Harvey Kugelman Co., L.P.A., and Harvey Kugelman, for appellee.

          JOURNAL ENTRY AND OPINION

          LARRY 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.[1] 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 magistrate.

         {¶ 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 basement.

         {¶ 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 ...


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