COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70420 : ACCELERATED DOCKET JOHN A. CARDELLE, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION BRUCE HALLIS, ET AL. : : : PER CURIAM Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-281713 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: FORD L. NOBLE, ESQ. BLAIR N. MELLING, ESQ. 950 Standard Building MELLING, MELLING & BELL Cleveland, Ohio 44113 31 Columbus Road P.O. Box 46311 Bedford, Ohio 44146 - 2 - PER CURIAM: Plaintiffs brought an action alleging that defendants intentionally failed to disclose certain defects in the home plaintiffs purchased from defendants. Specifically, plaintiffs claimed the home "suffered from a severe infestation of carpenter ants, had faulty wiring, leaky plumbing, including a sump pump which was not connected to the storm sewer, chimney damage, damage to the heating ducts, split beams in the flooring, no insulation in walls or ceiling, and a faulty furnace, none of which items were included on the Property Disclosure Form, Exhibit B." Paragraph four of plaintiffs' complaint. Prior to purchase, plaintiffs viewed the property three times. More importantly, the premises were inspected by the FHA, City of Bedford, and Castle Home Inspection, a home inspection company hired by plaintiffs. Defendants moved for summary judgment, arguing that every defect alleged in plaintiff's complaint, if the defect existed, was either 1 disclosed to plaintiff or open to plaintiff's observation. Summary judgment was granted to defendants, and plaintiffs timely appealed raising two assignments of error, which will be addressed together. They state as follows: A. WAS THE GRANTING OF THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS APPROPRIATE IN A CASE WHERE GENUINE ISSUES OF MATERIAL FACT EXIST. 1 The contract was signed on June 14, 1993. The parties have not raised any argument based on R.C. 5302.30, which became effective July 1, 1993. - 3 - B. WHETHER GENUINE ISSUES EXIST AS TO MATERIAL FACTS REGARDING THE FRAUDULENT MISREPRESENTATION AND NON- DISCLOSURE OF LATENT DEFECTS TO REAL PROPERTY. In the case at bar, summary judgment was properly granted for defendants. First, under Civ.R. 56(E) the nonmoving party may not rest on the mere allegations or denials in the pleadings but must set forth specific evidence on any issue for which the party bears the burden at trial. Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421; Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108; Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383. Defendants, in their motion for summary judgment, argued that the water in the basement and carpenter ant problems were disclosed prior to selling. Defendants further contended that plaintiffs produced no evidence of any damage regarding the wiring, insulation, plumbing, furnace, and chimney. Finally, defendants pointed out that if these problems do exist, they were readily discoverable upon a reasonable inspection by plaintiffs. Plaintiffs responded by filing a brief in opposition in which they reasserted their argument that the alleged defects were fraudulently concealed. However, plaintiffs did not attach any evidence in the form of affidavits, pictures, or any other discovery responses to support the existence of the alleged defects or the existence of any fraudulent concealment. The only exhibits attached to plaintiffs' motion were the purchase agreement and the disclosure form. A seller of real property must disclose substantial latent defects to the seller. Layman v. Binns (1988), 35 Ohio St.3d 176. - 4 - However, when defects in the property are open to observation, the seller has no duty to bring them to the attention of the buyer. This rule of caveat emptor is reflected in the syllabus of Layman as follows: 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 0.0. 325, 135 N.E.2d 256, approved and followed.) Therefore, in the case at bar, whether the seller had a duty depends on whether the alleged defects were either disclosed or open and observable upon a reasonable inspection. 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. Summary judgment was properly granted for defendants because plaintiffs produced no evidence either (1) to establish the existence of the alleged defects or (2) to support their allegations of fraudulent concealment against defendants. A. Alleged Defects. First, the plaintiffs have not, by affidavit or otherwise, set forth specific facts showing the existence of a genuine triable issue. Relying on mere allegations of defects and fraudulent concealment is insufficient. Mootispaw v. Eckstein, supra. Without any pictures, affidavits, or discovery responses describing the defects, the trial court, as well as this court, is not able to - 5 - discern whether the defects exist, whether the defendants knew of the alleged defects, whether the defects were open to observation, and whether there was any effort to conceal the defects. For this reason alone, summary judgment was properly granted for defendants. Furthermore, the record shows the seller disclosed problems dealing with water in the basement, carpenter ants, and chimney damage. Defendants disclosed this potential problem in the Property Information Checklist, which was attached to the purchase agreement. Asked whether the seller had experienced any water in the basement, the seller checked the box marked "yes" and stated, "S.P.U. WATERPROOFING DONE IN 1990 OF APRIL NO WATER SINCE (LIFETIME GUARANTEE) - TRANSFERABLE." In response to the question of whether the house had any structural or component problems, defendants checked the box marked "foundation" and stated, "FOUNDATION HAS BEEN REINFORCED WHEN BASEMENT WAS WATERPROOFED." In response to the question whether there was any flooding, drainage or grading problems on the property, defendant checked the box marked "unknown." The alleged carpenter ant problem was disclosed by seller in response to the question of whether the property has had any wood boring insects: seller checked the box marked "yes" and stated, "CARPENTER ANTS, SPRAYED FOR INSECTS." As to the chimney damage, defendant responded to the question "[h]as the roof ever leaked since you have owned the property?" by checking the "yes" box and stating, "AROUND CHIMNEY REPAIRED." It is also questionable whether the specific defects raised - 6 - were latent defects not discoverable upon a reasonable inspection. Gagne v. Jack (Mar. 7, 1991), Cuyahoga App. No. 58141, unreported (defective sump pump not latent); Horvatter v. Spilker (Mar. 29, 1996), Huron App. No. H-95-055 (sagging beam not latent); Hull v. Arrow Material Products (Sept. 1, 1995), Gallia App. No. 94CA25, unreported (slight bowing of wall not latent). B. Fraudulent Concealment. Finally, plaintiffs have not produced any evidence to support their claims of fraudulent concealment. The elements of fraudulent concealment are (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury caused by the reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167. Not every non-disclosure rises to the level of fraud. In order to establish fraud for non- disclosure, the purchaser must show an affirmative misrepresentation or misstatement of material fact. Layman, supra, at 178. Plaintiffs, however, have not alleged or produced any evidence to establish any specific misrepresentation by defendants. Therefore, because plaintiffs have not produced any evidence that the defects existed and that defendants failed to disclose or - 7 - concealed latent defects known to defendants, plaintiffs' two assignments are overruled. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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 Cuyahoga County 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. PATRICIA A. BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .