COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68831 DIANE PARKINSON, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION THEODORA KUNN : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 28, 1995 CHARACTER OF PROCEEDING : Civil appeal from Lakewood Municipal Court, : Case No. 94-CVI-3117 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES: FOR DEFENDANT-APPELLANT: Diane Parkinson, Pro se George C. Kovacs, Esq. 1204 Westlake Avenue 1276 West Third Street Lakewood, Ohio 44107 700 Marion Building Cleveland, Ohio 44113 -2- PER CURIAM: This is an accelerated appeal pursuant to App.R 11.1 and Loc.App.R. 25. Theodore Kunn, defendant-appellant, appeals from the judgment of the Lakewood Municipal Court, which reversed the recommendations of the referee, and entered judgment in favor of the plaintiffs-appellees, Diane Parkinson, Phyllis Trappenberg, Tamara Troicky. We find appellant's assignment of error to lack merit. We affirm the trial court's ruling. Appellees filed a complaint against appellant alleging fraud in the sale of an apartment building. Appellees purchased an apartment building located at 11834 Clifton Boulevard, Lakewood, Ohio for One Hundred and Seventy Thousand Dollars ($170,000.00), although the list price was One Hundred and Sixty Eight Thousand and Five Hundred Dollars ($168,500.00). The case was heard before a referee and both appellees and appellant proceeded on a pro se basis. After testimony was taken, the referee recommended a finding in favor of appellant, on the basis that there was no evidence before the court to suggest that appellant had hidden a known defect. Appellees objected to the referee's report and recommendations on the basis that appellant made false representations concerning the property. The judge, on March 16, 1995, reheard the evidence in the case, with the parties proceeding on a pro se basis. At the hearing before the judge, appellee Troicky testified first. She explained she was an experienced realtor, and it was her belief that a professional home inspection is for first-time -3- home buyers. She said that although she and the other appellees requested access to inspect the garage on various occasions, neither she nor the other appellees inspected the garage. Moreover, she relied on information appellant provided on the Ohio Property Information Sheet. Finally, she stated the city of Lakewood makes an inspection of real property prior to transfer, but an inspection by the city of Lakewood never occurred because the garage door was locked. Appellee Parkinson explained that the garage in question is part of a row of three garages, with walls separating each unit. Appellees had access to the two adjacent garages, but not to the third garage. There was one continual strip of concrete. One part of the strip appeared to be in good condition, and they assumed the other strip of concrete was in the same condition as the first strip. Ms. Kralick, who was not a party to the action, testified for appellees, and she stated that she had been a tenant in the apartment building owned by appellant, and stored her furniture in the garage. When she found out appellant was selling the property, she offered to move her furniture out of the garage. However, appellant instructed Ms. Kralik to leave the property in the garage, as "it was serving a purpose." Appellant informed her to tell anyone who asked that she was renting the garage for $15.00 a month. When asked whether she actually paid the $15.00, she indicated that she did not pay the $15.00. She also testified the -4- garage was locked for about six weeks, and no one could get into the garage. Next, appellant Kunn testified. She explained that she had no reason to disclose to appellees the condition of the garage on the Ohio Property Information Sheet, because appellees had access to the garage and could have observed the conditions of the garage on numerous occasions. Appellant disputed Ms. Kralik's testimony. Appellant explained that Ms. Kralik would occasionally store her Jeep in the garage. Appellant also indicated the three appellees were not present when she opened the garage, only her husband and two other contractors were present when she opened the door. Marie Meszaros, a realtor who represented appellant in the transaction, testified for appellant. She recounted that she was present at every showing that took place at the house, and that she never had any keys. To gain access to the units, she asked Mrs. Burton, a tenant to open the units. She recalled that she did not remember anyone asking her to open the garage, because it could not be opened, nor did she remember seeing the inside of the garage. At the conclusion of the hearing, the trial judge entered judgment in favor of the appellees and against appellant in the amount of One Thousand and One Hundred Dollars ($1,100.00). Appellant timely appeals. I. Appellant presents a sole assignment of error: THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON BEHALF OF PLAINTIFFS/PURCHASERS OF REAL PROPERTY WHERE THERE WAS NO SHOWING OF FRAUD ON THE PART OF DEFENDANT/SELLER AND -5- PLAINTIFFS/PURCHASERS CHOSE NOT TO INSPECT THE PREMISES FOR DEFECTS. In this assignment of error, appellant specifically contends she did not act in a fraudulent manner when she sold the property to the appellees; the doctrine of caveat emptor applies to a real estate purchase; and appellees had the opportunity to examine the premises, and there is no fraud on the part of appellant. The Supreme Court of Ohio in Layman v. Binns (1988), 35 Ohio St.3d 176, held that the seller of real property must disclose substantial latent defects to his purchaser. However, if the defects are open to the buyer's attention, the seller has no duty to disclose them to the purchaser. The court stated: 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.) Id. at syllabus. A defect is open and observable if an ordinarily prudent person would discover it upon reasonable inspection. Tipton v. Nuzum (1992), 84 Ohio App.3d 33. The court in Brewer v. Brothers (1992), 82 Ohio App.3d 148, discussed a seller's liability to disclose defects when the real property is sold "as is." The court in Brewer also stated: In Ohio, a seller may be liable for disclosure of a latent defect where the seller is under a duty to disclose facts and fails to do so. Brewer, supra citing Miles v. McSwegin (1979), 58 Ohio St.2d 97. An "as is" -6- clause in a contract places the risk upon the purchaser as to the existence of defects. It relieves the seller of any duty to disclose. Kaye v. Buerhrle (1983), 8 Ohio App.3d 381 ***. However, an "as is" clause does not bar a claim for "positive" fraud, a fraud of commission rather than omission. An "as is" clause cannot be relied upon to bar a claim for fraudulent misrepresentation or fraudulent concealment. Mancini v. Gorick (1987), 41 Ohio App.3d 373. (Citations omitted). Brewer, at 151. A party alleging fraudulent misrepresentation must prove: (a) concealment of a fact, (b) which is material to the transactions 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. In the case sub judice, the real estate was sold "as is." However, appellant cannot invoke the doctrine of caveat emptor to defeat appellees' claim of fraudulent representation. Here, the defects in the garage were not open to observation; appellees were unable to conduct a reasonable inspection of the garage; appellees did not have an unimpeded opportunity to examine the garage, although they requested access to the garage on more than one occasion. The information on the Ohio Property Information Sheet is bereft of disclosures by appellant concerning defects in the garage. Here, the facts support the trial court's findings that appellant fraudulently misrepresented the garage defects to appellees. Accordingly, appellant's assignment of error is overruled. -7- Judgment is affirmed. -8- 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 Lakewood Municipal 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE DIANE KARPINSKI, 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 .