COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72129 : DAVID OSINSKI, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION : ILIJA KORNJA, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. CV-290618 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: DANIEL S. WHITE (#0015290) MICHAEL A. SHORE CO., L.P.A. 23200 Chagrin Boulevard Beachwood, Ohio 44122 For Defendants-Appellees: ABRAHAM KAY (#0010686) 1330 Illuminating Building 55 Public Square Cleveland, Ohio 44113 SPELLACY, J.: Plaintiffs-appellants, David and Cynthia Osinski ( appellants ), appeal the judgment of the trial court in favor of -2- defendants-appellees, Ilija and Sazeta Kornja ( appellees ), thereby denying appellants' claim for fraudulent misrepresentation. Appellants assign the following six errors for our review: I. THE TRIAL COURT'S DECISION IN FAVOR OF THE DEFENDANTS-APPELLEES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONSTITUTED REVERSIBLE ERROR. II. THE TRIAL COURT'S DECISION TO ALLOW COUNSEL FOR THE DEFENDANTS-APPELLEES TO INTERROGATE PLAINTIFF-APPELLANT CINDY OSINSKI ON CROSS-EXAMINATION CONCERNING THE DEPOSITION OF HER HUSBAND CONSTITUTED REVERSIBLE ERROR. III. THE TRIAL COURT'S DECISION TO ALLOW THE DEFENDANTS-APPELLEES TO INTRODUCE WEATHER RECORDS CONSTITUTED REVERSIBLE ERROR. IV. THE TRIAL COURT'S DECISION TO LIMIT THE SCOPE OF THE OPINIONS EXPRESSED BY THE PLAINTIFFS-APPELLANTS' EXPERT WITNESS CONSTITUTED REVERSIBLE ERROR. V. THE TRIAL COURT'S DECISION TO DISALLOW THE INTRODUCTION OF THE PLAINTIFF- APPELLANTS' TRIAL EXHIBIT 4 CONSTITUTED REVERSIBLE ERROR. VI. THE TRIAL COURT'S DECISION TO DISALLOW REBUTTAL TESTIMONY FROM PLAINTIFF- APPELLANT CINDY OSINSKI CONSTITUTED REVERSIBLE ERROR. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On May 15, 1994, appellants entered into a Purchase Agreement with Appellees to buy appellees' home located at 8855 Priem Road in Strongsville, Ohio. Along with the Purchase Agreement, which specified that appellants bought the property in its present condition, appellees also signed a Residential Property Disclosure -3- form indicating they did not know of any current water leakage, water accumulation, excess dampness or other defects in the basement/crawl space. Shortly after taking possession of the property, appellants discovered a basement water leak. Approximately six months after discovering the leak, appellants contacted Ohio State Home Services, Inc. to repair the leaky basement. On June 7, 1995, appellants filed a complaint against appellees in the Cuyahoga County Court of Common Pleas. Appellants' complaint alleged that appellees had fraudulently lied or misrepresented the condition of the basement in their home. Appellants' case was referred to arbitration, and on February 26, 1996, the arbitrator found in favor of appellants on their fraudulent misrepresentation claim. Appellants were awarded $8,825.00 in damages. On March 12, 1996, appellees appealed the arbitrator's award and a bench trial was held on December 3-4, 1996. On January 30, 1997, the trial court reversed the arbitrator's decision and entered judgment in favor of appellees on appellants' claims. At trial, appellant Cindy Osinski testified that although appellees did not make any verbal representations regarding the condition of the basement, appellees had painted the basement white at some time prior to the sale of the Priem Road home and an odor existed in the basement at the time the home was purchased. Appellants' contractor, Earl Breckenridge, who repaired the basement, also testified at trial. Mr. Breckenridge stated that -4- because they had found hidden indications of water damage, appellees must have known about the water damage. Mr. Breckenridge opined that: [i]n my opinion these problems did not develop overnight and probably took a number of years to get to this point. Appellee Ilija Kornja also testified at trial. Appellee Ilija Kornja testified that she and her husband bought the house on Priem Road in 1991. Appellee testified that neither she nor her husband did any work on the house between 1991 and 1994, when appellants purchased the home. The paneling, carpeting and paint in the basement remained in the same condition as when appellees purchased the home. Appellee Ilija Kornja further stated that the Residential Property Disclosure form stating that she did not know of any current water leakage, water accumulation, excess dampness or other defects with the basement/crawl space was truthfully filled out. II. In their first assignment of error, appellants contend that the trial court's verdict in favor of appellees was against the manifest weight of the evidence. The test to be applied on appeal as to whether or not a judgment is against the manifest weight of the evidence was set forth as follows in Arnett v. Midwestern Ent., Inc. (1994), 95 Ohio App.3d 429, 431: We initially note that a judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight -5- of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280. In addition, under a manifest weight of the evidence test, the court of appeals is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co. V. Cleveland (1984), 10 Ohio St.3d 77, 80. Johnson, M.D. v. Lakewood Hospital, et al. (September 4, 1997), Cuyahoga App. Nos. 70943/71257, unreported. In the present case, appellees complied with R.C. 5302.30 when they completed the Residential Disclosure form. On this form, appellees stated that they did not know of any water leakage or other defects in the basement. Appellants, however, maintain that the appellees did not respond truthfully on the Residential Disclosure form. Appellants assert appellees had a duty to disclose material latent defects and a breach of that duty entitles them to damages resulting from nondisclosure. Specifically, appellants argue that the doctrine of caveat emptor was inapplicable and that appellees fraudulently misrepresented and concealed the defective condition of the basement. Pursuant to R.C. 5302.30, effective July 31, 1993, sellers of residential real estate are required to disclose information they possess concerning any material defect in the property. R.C. 5302.30(C) provides that any person who intends to transfer real property must complete and deliver to the transferor a property disclosure form. The form provides that the transferor must disclose material matters relating to the physical condition of the property to be transferred and any material defect in the property which is within the transferor's actual knowledge. R.C. -6- 5302.30(D). Compliance with the statute does not eliminate a seller's duty to disclose defects. Schlecht, et al. v. Helton (January 16, 1997), Cuyahoga App. No. 70582, unreported, citing Davis v. Kemptor (August 10, 1996), Union App. No. 14-95-C1, unreported. In Layman v. Binns (1988), 35 Ohio St.3d 176, syllabus, the Supreme Court held: 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. Under the rule of caveat emptor, buyers are responsible for discerning patent defects. Layman, supra. If a purchase agreement states that the buyer purchases the real property in its as is physical condition, the vendor has no duty to disclose latent defects. Schlecht, et al. V. Helton (January 16, 1997), Cuyahoga App. No. 70582, unreported citing Kossutich v. Krann (August 19, 1990), Cuyahoga App. No. 57255, unreported. A seller may be liable for non-disclosure of a latent defect when he is under a duty to disclose facts and fails to do so. Layman, supra. The elements of a cause of action for fraudulent misrepresentation include an actual or implied misrepresentation which is material to the transaction, made with knowledge that the statement is false and with intent to mislead another who relies upon the misrepresentation with resulting injury. Shumney, et al. v. Jones, et al. (July 2, 1992), Cuyahoga App. No. 63019, -7- unreported citing Klott v. Associates Real Estate (1974), 41 Ohio App.2d 118, 120-121. Concealment of a fact, where there is a duty to disclose, is also considered to be a false representation. Curr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 73. In the instant case, the trial court rendered a verdict for appellees and overruled appellants' claim for fraudulent misrepresentation and/or concealment. We find the trial court's verdict in favor of appellees was appropriate. At trial, the evidence revealed appellants did not discuss the condition of the basement with appellees prior to purchasing the home. Further, no verbal representations were made by appellees contradictingwritten representations set forth on the Residential Property Disclosure form. Appellant Mrs. Osinski testified she did not hire an inspector to look at the home prior to the purchase, but she inspected the home, including the basement, with a family member on approximately two occasions. At that time, Mrs. Osinski did not observe any problems in the basement. Furthermore, because she did not recall seeing cracks on the walls when she inspected the basement, Mrs. Osinski stated that she believed the basement had been freshly painted. Mrs. Osinski's contention, however, is not supported by any evidence regarding the age of the paint, when the paint was applied or what the paint covered. Appellants produced one witness at trial to support their claim appellees knowingly concealed material facts regarding the condition of the basement. Appellants' expert, their waterproofing contractor, testified that [i]n [his] opinion these problems did -8- not develop overnight and probably took a number of years to get to this point. The contractor's opinion, however, does not reveal that appellees knew of any leakage or water problems in the basement of the Priem Road home. A careful review of the record before us, reveals that appellants failed to produce evidence which would prove appellees knowingly misrepresented or possessed utter disregard for the truth of the fact that the basement had no water problems. The purchase agreement was as is and specifically noted that appellees had no knowledge of any hidden or latent defects, including but not limited to water seepage, wet basement or walls * * * . Furthermore, appellants admitted that no oral representations were made in coming to terms of the sale. The nondisclosure of defects and/or water leakage in the basement did not rise to the level of fraud for the reason the alleged defects were not latent. Reasonable inspection could have detected the likelihood of past and future water leakage in the basement. Thus, the doctrine of caveat emptor prevails and precludes recovery in this action for appellees failed to show (1) affirmative misrepresentations or misstatements of a material fact, (2) fraudulent concealment, or (3) existence of a latent defect. Hence, appellees are bound by the doctrine of caveat emptor and are precluded from recovery. Accordingly, appellants' first assignment of error is overruled. II. -9- For purposes of this appeal, appellants' second, third, fourth and sixth assignments of error will be addressed together. Initially, we note that appellants have failed to cite to any legal authority in their appellate brief supporting these four assignments of error. App.R. 12(A)(2) provides us with the authority to disregard an assignment of error presented for review if the party raising it * * * fails to argue the assignment separately in the brief, as required under App.R. 16(A). Chandler and Assoc., Inc. v. America's Healthcare Alliance, Inc. (October 30, 1997), Cuyahoga App. Nos. 71325 and 71832, unreported; North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342. App.R. 16(A)(7) requires the appellant to include in its brief * * * an argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies * * * . (Emphasis added). Since appellants failed to comply with the foregoing appellate rules and applicable case law, we decline to review these assignments of error. IV. Appellants' fifth assignment of error alleges the trial court erred in failing to admit documentary evidence of finance charges assessed to appellants in connection with the loan obtained for fixing the basement. -10- Because we have found appellee not liable on appellants' claim for fraudulent misrepresentation and/or concealment, the issue of damages is moot. Accordingly, appellants' fifth assignment of error will not be addressed. Judgment affirmed. 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. ANN DYKE, P.J. CONCURS; -11- DIANE KARPINSKI, J. CONCURS IN JUDGMENT ONLY. (SEE CONCURRING LEO M. SPELLACY OPINION ATTACHED) Judge N.B. This 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(B) 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 clerk per App.R. 22(B). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72129 DAVID OSINSKI, ET AL. : : : Plaintiffs-Appellants : : CONCURRING v. : : OPINION ILIJA KORNJA, ET AL. : : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19,1998 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I concur only in judgment because I disagree with the reasoning the majority adopts to dismiss the second, third, fourth, and sixth assignments of error. Although I agree that appellants failed to provide any citations to authorities or statutes in support of their assignments, I do not agree that this court may decline, solely on the basis of Appellate Rules 12 and 16 and the cases it cites, to review appellants' arguments. App.R. 12(A)(2) requires separate arguments under each assignment. That rule, along with the case law cited, is irrelevant to the case at bar, because appellant did argue each assignment separately. While App.R. 16(A)(7) requires citations, it does not authorize a court to disregard an assignment solely for the lack of citations. The two rules may not be -2- .