COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66945 SHARON LORENC : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ERIKA SCIBOROWSKI, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION MARCH 16, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 229881 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DOUGLASS P. COBLE, ESQ. PHILIP ZIMMERMAN, ESQ. 20525 Center Ridge Road 2568 Brentwood Drive Suite 604 Beachwood, Ohio 44122 Rocky River, Ohio 44116 PHYLLIS HESS, ESQ. 4510 South Hills Drive Cleveland, Ohio 44109 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Sharon Lorenc appeals from an adverse judgment entered after a bench trial in which she alleged fraud claims against the defendants-appellees Erika and Stanley Sciborowski arising out of plaintiff's purchase of the Sciborowskis' home. Plaintiff claims the defendants concealed latent defects in the sale of the home and the judgment was against the manifest weight of the evidence. She also claims the trial judge was biased and engaged in improper conduct during trial. We find no error and affirm the judgment. In March 1990, plaintiff purchased the Sciborowskis' home at 7208 Worley Avenue, Cleveland for $49,000, less a broker's commission of $3,000. The house was 100 years old. Plaintiff first approached the Sciborowskis with her offer to buy before the house was ever listed for sale. She was very familiar with the house, as she had grown up across the street; had been a close childhood friend with the Sciborowskis' daughter; and had been in the house "hundreds of times" as a youngster. She also had opportunity to inspect the property before the purchase, but contented herself with a "walk-through" with the broker. The Sciborowskis testified that they trusted the broker selected by plaintiff and did not read any papers before signing them. Before the purchase agreement was signed, Mrs. Sciborowski testified that she orally disclosed to plaintiff that the basement - 3 - leaked. The purchase agreement was a standard form ERA real estate contract which contained the following relevant provisions: 5. HOME WARRANTY: ERA Buyers protection plan will be provided at a cost of $ NA the fee for said policy to be paid by the SELLER BUYER at closing through escrow. If the warranty is not provided, PURCHASER and SELLER acknowledge the protection benefits of the warranty insurance are hereby waived and the broker and agents herein are released by them from any liability for costs or repairs which would have been covered under the policy. * * * 7. INSPECTION: PURCHASER shall have NA work days after acceptance of this offer to have a qualified inspector(s) or contractor(s) perform at PURCHASER'S expense, the inspections indicated below. If PURCHASER is not satisfied with results of such inspection, then PURCHASER shall notify SELLER in writing within three (3) days after such inspection is conducted. This contract may be renegotiated or voided only in the event that major problems or significant safety risks ($500 or more to repair or correct) are discovered by inspection. Renegotiation or voiding of contract can be done only with submittal of a copy of the inspection report. If SELLER agrees to correct the condition(s), then this Purchase Agreement shall remain in full force and effect. If SELLER does not so elect then PURCHASER, at PURCHASER'S option, may either waive such condition(s) and accept the property in its "AS IS" condition or terminate the agreement in which case neither PURCHASER, SELLER nor any REALTORS involved in this transaction shall have any further liability or obligation to each other and both SELLER and PURCHASER agree to sign a Mutual Release whereupon the earnest money deposit will then be returned. This inspection contingency is separate and distinct from any inspections required or conducted by any governmental entity or pursuant to any financing. BUYER MUST INDICATE YES OR NO FOR EACH INSPECTION. A. General Home Inspection Yes X No B. Septic System Inspection Yes X No C. Well Water Test Inspection Yes X No D. Termite/Wood Destroying Insect Inspection (FHA/VA regulations prohibit payment of inspection by - 4 - PURCHASER in which case SELLER shall pay the cost) X Yes No E. Other X Yes No PURCHASER elects to waive each professional inspection indicated "NO" by PURCHASER. Each such election and any failure by PURCHASER to perform any inspection indicated "YES" herein is a waiver of such inspection and shall be deemed absolute acceptance of the property by PURCHASER in its "AS IS" condition. If the PURCHASER now desires to waive the right of inspection, PURCHASER should initial the line after the following statement. The undersigned PURCHASER elects to waive the right of inspection, as provided in this paragraph /s/ SML (PURCHASER'S INITIALS). * * * 12. SELLER'S DISCLOSURE: I understand that I may be held responsible by a Purchaser for any latent or hidden undisclosed defects in, on or upon my property WHICH ARE KNOWN TO ME but which are NOT disclosed to the Purchaser at the time of sale (THESE WOULD INCLUDE WITHOUT LIMITATION LEAKY OR DAMP BASEMENTS OR WALLS, PROBLEMS WITH CISTERNS, WELLS, SEPTIC TANKS, GAS OR WATER LINES, PLUMBING, HEATING, ROOFING, WIRING OR OTHER STRUCTURAL DEFECTS). The following items are to be disclosed to the Purchaser (If None write "NONE"). If anything other than "NONE" is written below, Purchaser must acknowledge by initialing this paragraph. NONE TO TAKE PLACE OF CONTRACT DATED 1-30-90. THIS CONTRACT WILL MAKE ALL OTHERS NULL AND VOID AND THIS IS THE NEW ONE THAT WILL BE PUT INTO PLACE FOR SELLER AND BUYER. I am aware of no other problems or defects in the property except as stated above. /s/ ES (Seller's Initials). * * * 14. CONDITION OF PROPERTY: The Property is to be delivered to PURCHASER in its present physical condition, the same having been examined by me/us subject only to ordinary wear and tear. There have been no representations, warranties or statements concerning the condition of said Property, the value of the same, the improvements thereon, the use that can be made of said - 5 - Property, or anything concerning the same other than what is specifically included in this written Purchase Agreement, upon which PURCHASER has relied. SELLER shall pay all costs for the repair of any gas line leak between the Property's foundation and the street that is discovered at the time of transfer of utilities. *** A separate Seller's Disclosure statement was also signed by the Sciborowskis containing the identical language of paragraph 12 quoted above. In December 1990, plaintiff had estimates prepared for redecorating which brought deficiencies to her attention. In 1993, further estimates were obtained for work to be done, the cost of which exceeded $30,000. As of trial, plaintiff had spent only $1,000 on repairs and continued to live in the house. About a year after the sale, Sciborowskis' daughter asked plaintiff how she liked the place and plaintiff replied: "It was great." In April 1993, plaintiff brought suit against the Sciborowskis for $40,000, alleging that they had fraudulently misrepresented the condition of the house and intentionally concealed material defects in the home, primarily affecting the foundation, the plumbing, the electrical system and the roof. Plaintiff claimed that the foundation was crumbling and concealed by a "false wall;" that the entire electrical system was hazardous; that the basement was leaking; the plumbing in the basement was not connected to the sewer; and the roof was leaking. Many of these conditions were not "up to code." Plaintiff's expert testified that, because the house was over 100 years old, there was a "good chance" certain things - 6 - were wrong with it, regardless of whether the problems were obvious. Mr. Sciborowski had personally repaired the house over the thirty years they had owned it. He testified he did so with the intent to improve the property, not with the intent to conceal any defects. For example, paneling was installed in the basement thirty years before the sale to make a recreation room, not to conceal the original walls. The Sciborowskis testified that they were unaware that the walls were crumbling behind the paneling. Mr. Sciborowski did replace existing electrical boxes as needed with "coffee can" reflectors, but he did not cause the entire electrical system to become dangerous. Any plumbing installed was merely a replacement of existing fixtures. He performed all of the work himself as necessary to maintain the property. The modifications of which complaints were made were done ten to thirty years before the sale. A major cause of the crumbling foundation was improperly installed downspouts, which were not installed by Mr. Sciborowski, and were obvious upon a reasonable inspection. The disclosure statement the parties signed required the Sciborowskis to list any undisclosed defects which they were aware of, and since they were unaware of any defects except the leaking basement, which had been disclosed, they claimed there was nothing required to be listed on the disclosure statement. According to plaintiff's expert, the Sciborowskis did not act to intentionally conceal the defects; they were trying to improve - 7 - the house. He also testified that if he were a buyer he would consider the house a "fixer upper." At the three day bench trial, the trial judge actively participated in the examination of witnesses for both sides. On January 28, 1994, judgment was entered in favor of the defendants against the plaintiff from which this appeal was timely taken. There is no opinion or findings of fact or conclusions of law contained in the record. Nor is there any motion or request under Civ. R. 52 for such findings. We address plaintiff's assignments of error in the order asserted. I. THE JUDGMENT OF THE TRIAL COURT IS IMPROPER AS A MATTER OF LAW AND IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE (SEE ENTIRE TRANSCRIPT). The standard for reviewing a claim that a verdict is against the manifest weight of the evidence is set forth in Karches v. Cincinnati (1988), 38 Ohio St.3d 12. Therein, the Ohio Supreme Court stated as follows: In reviewing the court's judgment we are guided by the principle that judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed, as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. Every reasonable presumption must be made in favor of the judgment and the findings of facts. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. Finally, if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to - 8 - sustaining the trial court's verdict and judgment. Seasons Coal Co., supra; Gates v. Bd. of Edn. of River Local School Dist. (1967), 11 Ohio St.2d 83, 40 O.O.2d 91, 228 N.E.2d 198; Ross v. Ross (1980), 64 Ohio St.2d 203, 204, 18 O.O.3d 414, 415, 414 N.E.2d 426, 428. Id. at 19. At issue in the present case is whether the doctrine of caveat emptor precludes appellant from recovering damages for any alleged structural defects or inferior conditions of the premises in question. In Layman v. Binns (1988), 35 Ohio St.3d 176, syllabus, the Ohio Supreme Court held: The doctrine of caveat emptor precludes recovery in an action by the purchaser for a structural defect in real estate where (1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor. (Traverse v. Long [1956], 165 Ohio St. 249, 59 O.O. 325, 135 N.E.2d 256, approved and followed.) The applicable law relating to fraud in the sale of a home was recently synthesized as follows in Arbor Vil. Condo. Assn. v. Arbor Village (1994), 95 Ohio App.3d 499, 510-11: Initially, we note that there was no evidence presented to establish that the defendants had taken any steps to actively conceal the repairs made to the heating system in 4991 Arbor Village Drive. If there appears no evidence of an intent to conceal or any evidence of acts performed to effect that intent, a seller cannot be liable for fraudulent concealment. Kaye v. Buehrle (1983), 8 Ohio App.3d 381, 8 OBR 495, 457 N.E.2d 373. However, it is well stated that in the sale of real estate, there will be a finding of fraudulent concealment when a vendor does not reveal to a buyer sources of peril of which he knows and which - 9 - are not discoverable by the buyer. Klott v. Associates Real Estate (1974), 41 Ohio App.2d 118, 121, 70 O.O.2d 129, 131, 322 N.E.2d 690, 692. Nondisclosure will become the equivalent of fraudulent concealment when the duty to speak arises in order to place the other party on equal footing. Mancini v. Gorick (1987), 41 Ohio App.3d 373, 374, 536 N.E.2d 8, 9-10, citing 50 Ohio Jurisprudence 3d (1984) 431, Fraud and Deceit, Section 78. Plaintiffs contend that defendants' non- disclosure of the repairs made to the heating system in 4991 Arbor Village Drive prior to plaintiffs purchase of the condominium units in 1984 and 1985 amounts to fraudulent concealment. In Miles v. McSwegin (1979), 58 Ohio St.2d 97, 12 O.O.3d 108, 388 N.E.2d 1367, the Ohio Supreme Court held that a seller who is under a duty to disclose facts and fails to do so will be held liable for any damage directly and proximately resulting from the seller's failure to disclose such facts. However, we are also mindful of the fact that a seller incurs such liability only if he is under a duty to disclose the matter in question. 3 Restatement of the Law, Torts 2d (1977) 119, Section 551. Indeed, Comment j to Section 551 of the Restatement states: "*** If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by custom or otherwise the other party has no duty of disclosure ***." Id. at 123. Upon review of the purchase contracts in the instant case, we find that the contracts clearly place the risk upon plaintiffs as to the existence of any defects. Plaintiffs executed purchase contracts containing the following language: "13. Limited Warranty. In the development statement furnished to the Buyers is a statement of the limited warranties to be given to Unit purchasers. These warranties will be extended to Buyers at the time of the closing. Seller disclaims any and all warranties other than as set forth in seller's limited warranty. - 10 - Further, Buyers hereby acknowledge that they have inspected the Unit and the Common Areas and are buying the Unit and its interest in the Common Areas in their present condition without warranty or representation of any kind, except as expressly provided therein." (Emphasis sic.) It has been stated that the terms "as is" and "in its present condition" are synonymous. Vilk v. Radley (Aug. 18, 1989), Lake App. No. 13-087, unreported, 1989 WL 95775. Plaintiff Smith offered testimony at his deposition that he "understood that he was buying the units as is." Plaintiff Smith further testified at his deposition that plaintiffs neither hired an expert to inspect the premises nor did they obtain an appraisal of the development prior to the purchase of the units. Accordingly, we find the defendants had no duty to disclose any knowledge of any past repairs made to 4991 Arbor Village Drive. Thus, we find plain- tiffs' fifth assignment of error not well taken. Applying the law to the facts of this case, we find that there was substantial and credible evidence to sustain the trial court's judgment in favor of the defendants. The house in question was over 100 years old. The owners had lived there for thirty years and apparently maintained it on a "handyman" or "do it yourself" basis over the years. The modifications or repairs of which plaintiff complains were made over ten to thirty years prior to the sale which militates against any intent to defraud or conceal. That they were unskillfully done or not up to code is beside the point. They were done to maintain the house for the Sciborowskis, who were living in it - not to - 11 - conceal defects or modifications from a potential purchaser ten years later. The doctrine of caveat emptor, still applies in Ohio. A purchaser has to look out for her own interests especially where there is ample opportunity to inspect and investigate prior to purchase. The plaintiff quite simply bought the house without any serious effort to examine the premises and expressly waived the right to a general inspection. The defendants can not be charged with fraudulent concealment of defects which a reasonable prior inspection would have revealed, i.e., "discoverable upon reasonable inspection." Layman, supra, syllabus. Plaintiff's Assignment of Error I is overruled. THE TRIAL JUDGE ABUSED HIS DISCRETION IN THAT HIS ACTIONS WERE IMPROPER AND PARTIAL. (E.G., TR. 71, 75, 82, 93, 98, 108, 110, 119, 130, 133, 148, 155, 160, 161, 185). Under Evid. R. 614(B): "The court may interrogate witnesses in an impartial manner, whether called by itself or by a party." The exercise of a trial court's interrogation and comments pursuant to Evid. R. 614 will be reviewed for abuse of discretion. State v. Davis (1992), 79 Ohio App.3d 450, 454. In the absence of any showing of bias, prejudice or prodding of a witness to elicit partisan testimony, it will be presumed that the trial court acted with impartiality in propounding to the witness questions from the bench in an attempt to ascertain a material fact or to develop the truth. Jenks v. Clark (1982), 7 Ohio App.3d 93, 98. - 12 - There is no question that the trial court actively participated in the examination of witnesses during the course of this three-day bench trial. Some of this examination could properly be described as cross-examination by use of leading questions. Given the totality of the circumstances, we do not think the court exhibited bias or prejudice that would taint his judgment. A judge "has active duties to perform in maintaining justice and in seeing that the truth is developed and may for such purpose put proper questions to the witness, and even leading questions." Jenkins at 97; see, also, Akron-Canton Waste Oil v. Safety-Kleen (1992), 81 Ohio App.3d 591, 610. Furthermore, this was a bench trial allowing the judge more freedom in his questioning. City of Cleveland v. Papotnick (July 2, 1992), Cuyahoga App. No. 60160, unreported at 9; State v. Brickman (Feb. 20, 1986), Green App. No. 85-CA-20 at 3. The defendants were foreign-born and up in years and obviously had difficulty in responding to simple questions. The judge's efforts were designed to get at the truth of the matter and shortcut rambling discourses. "It is proper for a trial judge to propound proper and pertinent questions to witnesses to clarify material facts." Bates v. Bill Swad Leasing Co. (1984), 17 Ohio App.3d 153, 154; see, also, State v. Kay (1967), 12 Ohio App.2d 38, 48. Most of the judge's questions were directed at whether the defects were obvious or detectable upon inspection. These were material issues affecting plaintiff's claims. - 13 - We have reviewed the entire transcript and, although at times the judge appeared gruff and impatient, he seemed to apply that demeanor to both sides alike, demonstrating no prejudice. Nabakowski v. 5400 Corp. (1986), 29 Ohio App.3d 82, 90. He accommodated plaintiff's counsel when witnesses were unavailable the same as he did for defense counsel. His evidentiary rulings were even-handed and on the mark. Defendant's Assignment of Error II is overruled. Judgment affirmed. - 14 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and NUGENT, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .