COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71494 AQUILINO CIFANI, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION AUGUST VANA, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-292392. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Walter F. Ehrnfelt, Esq. Michael J. Jordan, Esq. Waldheger, Coyne & Associates, Co., L.P.A. 1991 Crocker Road, Suite 550 Westlake, Ohio 44145 For Defendants-appellees: David H. Gunning II, Esq. Buckingham, Doolittle & Burroughs 1375 East 9th Street, Suite 1700 Cleveland, Ohio 44114 - 2 - SWEENEY, JAMES D., C.J.: Plaintiffs-appellants Aquilino and Delia Cifani, husband and wife, appeal from the granting of summary judgment in favor of defendants-appellees-movants August and Marie Vana, husband and 1 wife . For the reasons adduced below, we affirm. A review of the record on appeal indicates that the Vanas built a home in 1990 in Independence, Ohio, for the sum of $280,000. The Cifanis purchased the Vanas' home, including furnishings, for the sum of $270,000. The purchase agreement for the home sale between the parties herein was executed on May 28, 1992. During the negotiation process leading up to the sale, which included approximately five visits to the home by the Cifanis, the Cifanis noticed a perception of stale air and the odor of "furniture smell" within the home, but did not have the house professionally inspected or inquire of the sellers as to the identity of the odor. At the time of the fifth and final visit to the home prior to the sale, Mrs. Cifani, without mentioning the odors or stale air, asked the sellers if there was anything wrong with the home, to which the Vanas said no. After taking possession of the property in June of 1992 and prior to the Cifanis moving in, Mrs. Delia Cifani would go to the house on a intermittent basis to clean it and get ready for the move. Mrs. Cifani began to complain of episodes of dizziness, headaches, disorientation and nausea, and attributed these problems 1 The Vanas are an elderly couple who are in their eighties. - 3 - to the odors which she allegedly detected in the home prior to the sale. These symptoms allegedly subsided when Mrs. Cifani departed the home and further prevented the Cifanis from living in the home on a full-time basis. In August of 1992, the Cifanis had the furnace, air humidifier and air conditioning system in the home inspected and cleaned by E.J. Stovicek Company. This inspection revealed no problems. On December 18, 1992, this company again inspected and cleaned the furnace and air humidifier, noting no problems. Thereafter, with the deleterious symptoms allegedly continuing, the Cifanis had the home inspected five additional times by different air quality control and HVAC experts between January 15, 1993 and December 16, 2 1994. These experts made a variety of recommendations to alleviate the symptoms, namely: to repair or modify select portions of the home's HVAC system hardware; to clean or replace the fabrics and carpeting; to paint over any exposed particleboard products; to increase the air flow through the home. The only problems in the HVAC installation and upkeep noted in these inspections was a minor leak around the furnace flue pipe inside the home and a concern about the location of the furnace exterior flue vent on the side of the home being too near the fresh air intake vent. It was thought by the hired experts that these two conditions could have been the source for excessive levels of 2 HVAC is an acronym for Heating, Ventilation and Air Conditioning. - 4 - carbon monoxide gas, which is a by-product of the combustion process in the furnace, within the home. The Cifanis, who were not 3 living in the house during this period , enacted some of these recommendations, such as cleaning the carpets, and addressed the two specific items concerning the exhaust flue pipe mentioned previously . The documentary evidence in the record indicates that at no point during the ownership of the home by the Cifanis, whether prior to or after implementing the repair or modification of the exhaust flue pipe, was there detected within the home measurable or excessive amounts of carbon monoxide gas or other noxious gases, including formaldehyde, which is used extensively in 4 many building materials . Additionally, carbon dioxide gas levels were measured and found to be within recommended industry 5 standards . The structural integrity of the home was also inspected and found to be satisfactory, with no water problems in the basement area. Despite these repairs, modifications and cleaning measures within the home, Mrs. Cifani obtained no relief 3 During this period of time, the Cifanis' son, Jeremia Cifani, was living in the home and he did not experience any of the symptoms noted by his mother. 4 Formaldehyde in building materials is commonly present in the form of urea-formaldehyde resin, which is used in the production of certain types of particleboard and fiberboard products, carpeting, fabrics and foam insulation. 5 Excessive levels of carbon dioxide gas, a by-product of exhalation, can indicate "stuffiness" and "is an excellent gauge of ventilation adequacy." See the October of 1993 inspection report prepared for the Cifanis by EssTek Ohio, Inc., at summary of air sample results. - 5 - from her symptoms when she spent time in the home. The Cifanis' son testified that he experienced no adverse symptoms during his four-year stay in the home except for a sore throat for a brief period of time, and that this sore throat condition was successfully treated with prescribed antibiotics. Eventually, the Cifanis replaced, in its entirety, the home's original furnace and air conditioning unit in November of 1994 and the symptoms disappeared. Repair records on the home's furnace and air conditioning units during the two-year ownership of the Vanas, provided during discovery by the E.J. Stovicek Company, indicate fourteen service calls were performed, with two of those for unspecified furnace odor complaints and the remainder for routine servicing and cleaning. These repair records and the accompanying complaints were not disclosed to the Cifanis prior to the sale of the home. The Cifanis filed their lawsuit on July 17, 1995, alleging fraudulent concealment/misrepresentation, negligence, breach of contract and unjust enrichment in the failure to disclose the alleged faulty HVAC system which caused expense and physical harm to the Cifanis. The Vanas' answer generally denied the complainants' allegations and also raised a number of affirmative defenses. The Vanas filed their motion for summary judgment on June 24, 1996. This motion was supported by copies of the home's purchase agreement, HVAC repair invoices, HVAC inspection reports, and - 6 - excerpts from the depositions of Sandra Gembus (the Cifanis' daughter) and Jeremia Cifani (the Cifanis' son). The Cifanis filed their brief in opposition to summary judgment on August 9, 1996. This brief in opposition addressed only the claim for fraudulent concealment/misrepresentation. This brief was supported by the following: (1) the affidavits of the Cifanis and their children, Sandra and Jeremia; (2) a copy of the home's purchase agreement; and, (3) HVAC inspection reports and repair invoices. The Vanas filed a reply brief on August 28, 1996, supported by more copies of documentary evidence and excerpts from depositions. Without opinion or elucidation, the trial court granted the Vanas' motion for summary judgment on October 2, 1996. This timely appeal followed presenting one assignment of error. I THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE ISSUES OF MATERIAL FACT REGARDING WHETHER THERE WAS A LATENT AIR QUALITY PROBLEM AT THE RESIDENCE PURCHASED BY APPELLANTS FROM APPELLEES WHICH CAUSED SERIOUS ILLNESS TO APPELLANT MRS. CIFANI, AND WHICH PROBLEM APPELLEES MISREPRESENTED AND/OR CONCEALED. The standard of review for a summary judgment ruling was stated in Morton Internatl., Inc. v. Aetna Cas. & Sur. Co. (1995), 106 Ohio App.3d 653, 661: Ohio law provides that before summary judgment can be granted, it must be determined 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 that conclusion, when viewing the evidence - 7 - in a light most strongly in favor of the party against whom the motion is made, is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Civ.R. 56(C). Likewise, "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. In order to determine whether there exists a genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law, a court may consider only "the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action ***." Civ.R. 56(C). In addition, an appellate court will review a lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. In the case sub judice, the basic complaint is that the home sellers, prior to the sale of the home and after being asked by the buyers whether there was anything wrong with the home but without the buyers specifically inquiring about the perceived concerns with the air quality or odors, fraudulently concealed or misrepresented the condition of the home's HVAC system resulting in illness and expense to the home buyers. The doctrine of caveat emptor governs real property sales transactions in Ohio and relieves a vendor of the obligation of revealing every imperfection that might exist in a residential property. Layman v. Binns (1988), 35 Ohio St.3d 176. Without such - 8 - a doctrine, nearly every sale would be subject to litigation by disappointed buyers. The Layman court specified the circumstances under which caveat emptor precludes recovery in an action by a purchaser for a defect in real estate: 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. Id. at the syllabus, citing with approval Traverse v. Long (1956), 165 Ohio St. 249. A latent defect is one which is not open to observation or discoverable upon reasonable inspection. Here, prior to the transfer of title by the parties, the buyers were suspect of the air quality in the home, yet took no steps to identify the source of the perceived problem, have the home inspected prior to the time of transfer, or inquire of the sellers as to the history of any air quality problems the sellers may have knowledge of. Thus, the first and second elements of Layman are unsatisfied. The appellants do, however, allege fraud against the sellers. It is clear that the doctrine of caveat emptor cannot be used to protect a vendor if the buyer can prove fraud. Layman, supra. In order to prove fraudulent misrepresentation, a buyer must establish each of the following elements: 1) a representation, or where there is a duty to disclose, concealment of a fact, 2) which is material to the transaction at hand, 3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to - 9 - whether it is true or false that knowledge may be inferred, 4) with the intent of misleading another into relying on it, 5) justifiable reliance upon the representation or concealment, and 6) a resulting injury proximately caused by the reliance. Schlecht v. Helton, Executrix of the Estate of Vera Schoeder, (Jan. 16, 1997), Cuyahoga App. No. 70582, unreported. Construing, as we must for purposes of summary judgment, the evidence herein most strongly in favor of the appellants, the appellants have failed to present evidence that the sellers knowingly misrepresented the air quality of the home or the condition of the HVAC system at the time of the sale. The documentary evidence presented fails to demonstrate that anything within the home which could be a source of a gaseous irritation was, when tested repeatedly both prior to and after the time of the repairs and modifications to the furnace exhaust flue, above the industry standards for such irritant, if such irritant was detected at all by inspection. Accordingly, the appellants have failed to present evidence to surmount summary judgment. The appellant's assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellants 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. Exceptions. PATRICIA A. BLACKMON, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .