COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68530 ROBERT FELTY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ALEXANDER KWITKOWSKI, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : NOVEMBER 2, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-265656 JUDGMENT : AFFIRMED IN PART; REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: ALLEN A. KACENJAR, ESQ. JORDAN S. DELMONTE, ESQ. SEAN F. BERNEY, ESQ. UAW Legal Services Plan Suite 400, Broadview Centre 707 Brookpark Road 5241 Broadview Road Brooklyn Heights, OH 44109 Cleveland, OH 44134 - 2 - PATTON, C.J. In February 1984, plaintiff-buyer Robert Felty purchased a house in the city of Parma Heights from defendant-seller Alexander Kwitkowski. On February 16, 1994, buyer filed this action seeking damages for fraud and breach of contract relating to cracks and structural defects he discovered in the house. Buyer alleged his specific inquiries relating to the foundation and stability of nearby land met with assurances as to the house's structural integrity. He further alleged seller intentionally withheld information concerning preexisting cracks and the existence of a wall purportedly built to conceal the absence of a foundation in the basement of the house. Seller denied the substantive allegations of the complaint and filed a motion to dismiss the complaint or, in the alternative, for summary judgment. Seller argued buyer did not allege when he discovered the alleged fraud; therefore, it did not fall within the applicable statute of limitations. In addition to the statute of limitations argument, seller relied on the doctrine of caveat emptor to preclude recovery of damages on buyer's claims for relief. While admitting the existence of moisture, cracks and structural problems at the time of sale, seller maintained they were open and obvious to buyer because he had specifically called those defects to buyer's attention. As evidence of buyer's knowledge of water problems in the basement, seller represented he sold buyer a dehumidifier for - 3 - the sole purpose of reducing moisture in the basement. He also claimed his attempts to repair the cracks in the walls were amateurish and ultimately ineffectual. He appended the affidavit of a structural engineer who found seller sloppily attempted to caulk cracks using a black caulking compound that mismatched the brown walls. The engineer concluded the cracking was as visible in 1984 as it is today and "anyone making even a cursory inspection or view of the exterior or interior of the home" would have found the cracks open and obvious. In response, buyer submitted his own affidavit and denied having any knowledge of moisture or cracking. Buyer denied seller suggested purchasing the dehumidifier to alleviate moisture in the basement, instead claiming the dehumidifier was in the laundry room of the house, an area not subject to water problems. He also maintained seller intentionally concealed evidence of caulking by painting the walls. He did not realize the extent of the problem until he saw signs of obvious cracking which were confirmed by an engineer in September 1993. He further claimed a wall purportedly constructed as a work bench was, in fact, intended to conceal the absence of a complete foundation. Inquiries with the city revealed seller had only obtained a temporary certificate of occupancy due to his failure to complete the foundation, although buyer did not document this fact in his opposing brief. The trial court granted the motion to dismiss or, in the alternative, for summary judgment without opinion. This appeal - 4 - followed and buyer assigns two errors challenging the judgment below. Although seller styled his motion as one to dismiss or, in the alternative, for summary judgment, the trial court did not specify the basis for its decision. We believe the trial court could render judgment only on the evidence produced in support of the motion for summary judgment because the complaint does not conclusively show on its face the action is barred by the four year statute of limitations set forth in R.C. 2305.09(C). Generally, affirmative defenses such as the statute of limitations are not properly raised by a Civ.R. 12(B)(6) motion to dismiss because the court must usually look to materials outside the complaint. See Steiner v. Steiner (1993), 85 Ohio App.3d 513, 518. Thus, a motion to dismiss on the bar of the statute of limitations should be granted only when it obvious from the face of the complaint. See Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, paragraph three of the syllabus; Nelson v. Klima (Apr. 25, 1991), Cuyahoga App. No. 58288, unreported. Buyer's complaint alleged he purchased the house on February 23, 1984, but did not state when he discovered the alleged defects. Hence, it is not obvious from the face of the complaint the motion to dismiss should have been granted. We next address the issue of caveat emptor raised in the motion for summary judgment. Pursuant to Civ.R. 56(C), summary judgment shall only be granted when there is no genuine issue as to - 5 - any material fact and the moving party is entitled to judgment as a matter of law. The burden of establishing the absence of a genuine issue as to any material fact is on the party seeking summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 340. If the moving party meets this burden, the nonmoving party must come forward to produce evidence on all issues for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. In Layman v. Binns (1988), 35 Ohio St.3d 176, the court held the seller of real property must disclose substantial latent defects to his purchaser. However, when those defects are open to observation, the seller has no duty to call them to the buyer's attention. The syllabus states: "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.)" There is no dispute buyer had the opportunity to examine the premises prior to purchase. The critical element to be satisfied is whether the condition complained of is open to observation or discoverable. A defect is open and observable if an ordinarily prudent person would discover it upon reasonable inspection. Tipton v. - 6 - Nuzum (1992), 84 Ohio App.3d 33. The cause of the defect is not required to be open and obvious; rather, it is the open and obvious nature of the defect itself which invokes the doctrine of caveat emptor. Layman, supra, at 177-178; Smith v. Schneider (Nov. 3, 1994), Cuyahoga App. No. 66958, unreported. In his affidavit, seller admitted hairline cracks developed in an interior wall of the utility room and the exterior wall of the house sometime prior to sale. He tried to make repairs by applying a white caulking compound to the cracks in the yellow concrete block wall. Photographs taken by the seller's expert show the walls in the same condition and color as at the time of sale. Some photographs show a clear delineation of colors distinguishing the white caulk from the yellow walls. Other photographs show caulk painted yellow, but the newer yellow paint on the caulk stands out against the older yellow paint on the cinder concrete block. Still more photographs show cracks in the brown exterior walls of the house had been filled with a black caulking compound. The seller's expert stated in his affidavit: "*** It is obvious that the caulking performed by [seller] in 1983 upon these cracks was sloppy, mismatched in color to the surfaces upon which it was applied, and was open and obvious to anyone making even a cursory in- spection or view of the exterior or interior of the home in 1984, as it is visible today." Buyer disputed the open and obvious nature of the caulking. His own affidavit, however, belies this and indicates he did see cracking at the time of purchase. The affidavit states, "*** the - 7 - light color of the caulk together with the rather minor cracking in the interior of the house at the time of the sale did not warranty [sic] any concern and were not observed by him." By stating the light color of the caulk covering minor cracking was not a cause of concern, buyer effectively removed any doubt he noticed the difference in color between the existing yellow paint and the fresh paint covering the caulk. Moreover, seller's expert stated he had been advised by both seller and buyer the cracks in question were the same cracks that had been originally caulked in 1983. Even had there been no noticeable color difference in the paint covering the repairs, the photographs demonstrate the repairs themselves were done so poorly that a prudent person, upon reason- able inspection, would have noticed them. Seller's exhibit C shows seller parged the rough surface of the concrete block around the sewer pipe, creating a noticeably different surface. Seller's exhibit D shows buyer failed to paint over a caulked area above the sewer pipe. Any prudent buyer would have noticed these defects. Accordingly, we find no issue of material fact on the issue whether the condition complained of is open to observation or discoverable upon reasonable inspection. The final question is whether seller fraudulently concealed the defects. In Layman, the court stated, "[t]his court has held that a vendor has a duty to disclose material facts which are latent, not readily observable or discoverable through a purchas- er's reasonable inspection." Id. at 178. Non-disclosure of patent - 8 - defects does not rise to the level of fraud since those defects could have been discovered upon reasonable inspection. Id. We find no issue of material fact on the fraudulent concealment claim as to the interior and exterior walls. As noted in the preceding discussion, the defects were open and observable; consequently, seller's non-disclosure did not rise to the level of fraud. We do find, however, an issue of material fact exists concern- ing the foundation in the sub-basement. A photograph shows a support wall built directly on compacted earth and not placed on a concrete footer. Buyer alleged seller erected a second wall, ostensibly for a work bench, in front of the foundation. Buyer stated, "*** when [sellers] were asked about the existence of the wall in the sub-basement the [sellers] indicated the sub-wall was constructed for the purposes of constructing thereupon a work bench upon the site, but later abandoned the project." This evidence is sufficient to create an issue of material fact as to all the elements of fraud: (a) concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the concealment, and (f) a resulting injury proximately caused by the reliance. Cohen v. Lamko, Inc.(1984), 10 Ohio St.3d 167, 169. There is no right to rely on oral representations regarding the property transferred where the true facts are equally open and obvious to both parties, Finomore v. Epstein (1984), 18 Ohio App.3d - 9 - 89, 90. Thus, a person who has any doubt as to the truth of material representations due to notice of other defects must reasonably investigate before relying on those representations. Id., citing Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164; Smith v. Schneider, supra. Although the evidentiary material relating to the wall which allegedly hid the foundation is sparse, it nonetheless raises an material issue of fact. While there is some question whether buyer should have justifiably relied on seller's representations about the workbench in view of the other obvious defects, we believe this, too, is a material issue of fact. Importantly, seller's evidentiary materials do not address this issue. Since this is an appeal from a summary judgment, we must view the evidence in a light most favorable to buyer. Accordingly, we sustain the assigned errors in part, finding triable issues of fact exist only relating to fraudulent conceal- ment of the sub-basement foundation by the wall purportedly constructed for the workbench. Judgment affirmed in part, reversed in part and remanded. - 10 - This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court 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, J. NAHRA, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .