COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69939 YVONNE MORNINGSTAR : : ACCELERATED CASE Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION LARRY SMITH, ET AL. : : PER CURIAM Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 22, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-276505 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DAVID C. LAMB (#0047098) Weston Hurd Fallon Paisley & Howley 2500 Terminal Tower 50 Public Square Cleveland, OH 44113-2241 For Defendants-Appellees: CRAIG W. HERRICK (#0055987) 33 River Street Chagrin Falls, OH 44022 - 2 - PER CURIAM: This is an accelerated appeal pursuant to App.R. 11. Plaintiff-appellant Yvonne Morningstar ("appellant") appeals from the judgment of the trial court granting defendants-appellees Larry and Joyce Smiths' ("appellees") motion for summary judgment. Appellant assigns the following error for our review: THE TRIAL COURT ERRED AND COMMITTED REVERSIBLE ERROR BY THE GRANTING OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT UNDER CIVIL RULE 56(C). Finding appellant's appeal to lack merit, we affirm the judgment of the trial court. A complete review of the record reveals the following. On September 7, 1994, appellant filed a breach of contract claim against appellees alleging that the house which appellees sold her had a leaky roof and, as a result, she expended four thousand five hundred and fifty dollars ($4,550.00) to have the roof repaired. On August 9, 1995 appellees filed a motion for summary judgment, and on October 12, 1995, appellant filed its brief in opposition to appellees' motion for summary judgment. Trial court granted appellees' motion for summary judgment on October 30, 1995. The journal entry was subsequently amended on November 8, 1995, and states as follows: "Entry of 10-30-95 was final, and should be amended to read 'with prejudice'". (Journal Entry, November 8, 1995). - 3 - I. On February 25, 1991, appellant entered into a written purchase agreement with appellees for the purchase and sale of appellees' home located at 5974 Mayflower Avenue, Mayfield Heights, Ohio. The Purchase Agreement set forth all of the terms and conditions concerning the sale of the property. Section 11 of the Purchase Agreement stated the following with regard to the condition of the property at the time of sale: CONDITION OF PROPERTY. The Property is to be delivered to PURCHASER in the present physical condition "AS IS" the same having been examined by PURCHASER subject to ordinary wear and tear. PURCHASER has not relied on any representations, warranties or statements concerning the condition or value of said Property, improvements thereon, the use that can be made of said Property or anything concerning the same except as specifically included in this Purchase Agreement. SELLER shall pay the repair of any gas line leak between the Property's foundation and the street that is discovered at or before the time of transfer of utilities. SELLER REPRESENTS THAT, TO HIS KNOWLEDGE, THE PROPERTY HAS NO LATENT, STRUCTURAL OR OTHER SIGNIFICANT DEFECTS, EXCEPT THE FOLLOWING: (SELLER to complete) _______________________ ____________________________________________ (Purchase Agreement, February 25, 1991). Section 12 of the Purchase Agreement gave appellant the right to inspect and approve the property prior to closing. However, appellant waived her right to inspect the property. (Purchase Agreement, February 25, 1991). Prior to signing the Purchase Agreement, appellant was provided by appellees a "Seller's Property Information Checklist". - 4 - The "checklist", which was signed by both parties, stated that the roof had never leaked during the time in which appellees owned the house. And, although appellees responded that they did not know of any current problems with the roof, appellees wrote that there was "moisture in the foyer ceiling, [and] foyer ceiling roof repaired approximately 5 years ago." (Sellers' Property Information Checklist). In signing the checklist, appellant acknowledged that the checklist was not a warranty of any kind by appellees, and was not a substitute for any private inspection appellant wished to obtain. Furthermore, appellant acknowledged that no representations were made to her that were inconsistent with the statements made by appellees in the checklist. Shortly before September 3, 1992, appellant noticed that her roof was leaking above the foyer ceiling; that there were widespread holes in the roof sheeting; and that there was excessive moisture in the foyer. (Plaintiff's Interrogatories, Nos. 5, 7, 8). Subsequently, appellant sought to replace the roof, gutters, and roof-sheeting, as well as to repair the dormer and foyer ceiling. (Plaintiff's Interrogatory No. 6). As a result, appellant expended four thousand five hundred and fifty dollars ($4,550.00) to repair the roof. II. In her sole assignment of error appellant contends that the trial court committed reversible error by granting appellees' motion for summary judgment. - 5 - Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. In the present case, appellant argues that appellees failed to disclose any problem with the roof; that the doctrine of caveat emptor is inapplicable to the situation at bar; and that the "AS IS" clause in the Purchase Agreement did not nullify appellees' obligation to complete the final section of paragraph 11 in the Purchase Agreement. In Layman v. Binns (1988), 35 Ohio St.3d 176, the Ohio Supreme Court held that the seller of real property must disclose substantial latent defects to his purchaser. Parkinson v. Kunn (December 28, 1995), Cuyahoga App. No. 68831, unreported. However, - 6 - if the defects are open to the buyer's attention, the seller has no duty to disclose them to the purchaser. Id. The Layman 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. Layman at syllabus. Appellant initially contends that appellees failed to disclose on the Purchase Agreement any problems with the roof. Although the general rule in Ohio establishes liability for nondisclosure of a latent defect where the seller is under a duty to disclose facts and fails to do so, an "as is" clause in a real estate contract places the risk upon the purchaser as to the existence of defects. Brewer v. Brothers (1992), 82 Ohio App.3d 148, 151, citing Miles v. McSwegin (1979), 58 Ohio St.2d 97, 100- 101. It relieves the seller of any duty to disclose. Id. citing Kaye v. Buehrle (1983), 8 Ohio App.3d 381, 382-383. However, the seller may not make any fraudulent misrepresentation or fraudulently conceal any defects. Id. Upon review of the purchase contract in the instant case, we find that the contract clearly placed the risk upon appellant as to the existence of any defects. Appellant signed the Purchase Agreement which contained in paragraph 11, "Condition of Property", the following language: "The property is to be delivered to - 7 - PURCHASER in the present physical condition "AS IS" . . . ." Furthermore, appellant was put on notice by appellees that they had had previous problems with moisture in the foyer and that the foyer ceiling roof had been repaired five years prior. However, appellant failed to have an inspection conducted on the premises as provided for in the Purchase Agreement. Rather, appellant expressly waived this right. Appellant further contends that the trial court erred in granting appellees' motion for summary judgment, in that the doctrine of caveat emptor is inapplicable to the present case. In particular, appellant asserts that the defect in the roof was latent and not open to observation. Thus, appellant asserts, the first requirement of the Layman test was not satisfied. A defect is open and observable if an ordinary prudent person would discover it upon reasonable inspection. Tipton v. Nuzum (1992), 84 Ohio App.3d 33. As stated supra, an "AS IS" clause places the duty to discover defects on the purchaser except where there is a claim for "positive" fraud, a fraud of commission rather than omission, fraudulent misrepresentation, or fraudulent concealment. See Parkinson, supra. In the present case, appellant failed to conduct an inspection on the premises; and the "AS IS" clause in the Purchase Agreement relieved appellees of their duty to disclose any defects. Furthermore, appellees did not fraudulently misrepresent to appellant or conceal any hidden defects on the property. Rather, - 8 - appellees disclosed to appellant on the Seller's Property Information Checklist that they had previously had problems with the roof. Thus, appellant should have taken steps herself to insure that the premises was free from any such defects. Finally, appellant argues that the "AS IS" clause contained in the Purchase Agreement did not relieve appellees from completing the last section of paragraph 11 which states: "SELLER REPRESENTS THAT, TO HIS KNOWLEDGE, THE PROPERTY HAS NOT LATENT, STRUCTURAL OR OTHER SIGNIFICANT DEFECTS, EXCEPT THE FOLLOWING: (SELLER to complete)." As stated previously, a seller is relieved of the duty to disclose any latent defects where the Purchase Agreement contains an "AS IS" clause. Accordingly, in the case sub judice, the risk was placed upon appellant to discover any latent defects on the premises. Judgment affirmed. - 9 - This cause is affirmed. 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 Common Pleas 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. LEO M. SPELLACY, CHIEF JUSTICE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, 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 .