COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 82447 THOMAS W. YAHNER, ET AL., : : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : MARY K. KERLIN, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JULY 24, 2003 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 452376 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Thomas Yahner, Pro Se Michelle A. Yahner, Pro Se 6410 Olde York Road Parma Heights, Ohio 44130 For defendant-appellee: S. Robert E. Lazzaro, Esq. COSTANZO & LAZZARO, P.L.L. 13317 Madison Avenue Lakewood, Ohio 44107-4814 -2- MICHAEL J. CORRIGAN, P.J.: Plaintiffs-buyers Thomas and Michelle Yahner brought this fraud and breach of contract action against defendant-seller Mary Kerlin, alleging that she sold them a leaky and otherwise defective house and intentionally concealed that fact from them. In a written opinion, the court granted summary judgment to Kerlin, finding that the Yahners provided no evidence of active fraud and also failed to set forth evidence sufficient to create triable issues of fact on their remaining claims for relief. Our review of the briefs and the record convinces us that the court's opinion fully and thoroughly addressed the relevant issues and law, and that the court did not err by granting summary judgment. We therefore affirm the summary judgment for the reasons stated in the court's opinion, which we adopt and set forth as an appendix to this opinion. Judgment affirmed. -3- It is ordered that appellee recover of appellants her 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. MICHAEL J. CORRIGAN PRESIDING JUDGE PATRICIA ANN BLACKMON, J., and JAMES J. SWEENEY, J., CONCUR. 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX STATE OF OHIO ) IN THE COURT OF COMMON PLEAS ) SS: CUYAHOGA COUNTY ) CASE NO. CV-01-452376 THOMAS W. YAHNER, et al., ) ) Plaintiffs, ) ) vs. ) ) RULING ON MOTION FOR ) SUMMARY JUDGMENT MARY K. KERLIN, ) ) Defendant. ) Burt W. Griffin, J.: {¶1.} Inthisactionforbreachofcontract,fraud,andbreachofwarranty,plaintif W.YahnerandMichelleA.Yahner(hereinafter," plaintiffs"allegethatdefendant ) (hereinafter" defendant"concealedcertaindefectsinherpropertyandresidencewhichshe ) plaintiffs. {¶2.} This matter is before the Court on defendant'motion for summary ju s plaintiffs'brief in opposition thereto. Undisputed Facts {¶3.} The following facts are undisputed: {¶4.} OnoraboutMarch7,2001,thepartiesenteredintoaPurchaseAgreementinwhic plaintiffs agreed to purchase a property and residence owned by defendant, locat York Road, Parma Heights, Ohio 44130 (hereinafter, the " property" (See Purch ). attached as Exhibit A to the Complaint.) Plaintiffs were represented by a realto in the purchase of the property. The Purchase Agreement was prepared by plaintif {¶5.} ThePurchaseAgreementincludedapurchasepriceof$165,500.00. It also i the following " is"provision in lines 197-203: as Buyerhasexaminedthepropertyandagreesthatthepropertyisbeing purchased in its " IS"PRESENT PHYSICAL CONDITION AS includinganydefectsdisclosedbythe SELLERon the stateofOhio ResidentialPropertyDisclosure Form or identified by any inspection requested by either party. SELLER agrees to notify BUYER in writingofanyadditionaldisclosureitemsthatarisebetweenthedate ofacceptanceandthedateofrecordingofthedeed. BUYER has not relied upon any representations, warranties or statements about th property (including but not limited to its condition or use) unles otherwise disclosed on this AGREEMENT or on the Residential Property Disclosure Form. The Purchase Agreement also stated at line 6 that " BUYER accepts [the property] PRESENT PHYSICAL CONDITION'" . {¶6.} In connection with the Purchase Agreement, on January 28, 2001, de completedanOhioResidentialPropertyDisclosureForminwhichsheindicatedthatdefectsex withrespecttotheroof,basement/crawlspace,and" mechanicalsystems."(SeeDefend C.) {¶7.} With respect to whether she knew of any" current leaks or other withtherooforraingutters,"defendantcheckedtheboxmarked" "andstated:" yes has beenleaking."As to whether she knew of any" leaks or other material prob orraingutterssinceowningtheproperty(butnotlongerthanthepastfiveyears),"defendant "Leakin backsunporch. Fixed in 1998 by replacing door and theshold [sp.] in room bedroom)." 2 {¶8.} Withrespecttowhethersheknewofany" currentwaterleakage,wate excess dampness or other defects with the basement/crawl space, "defendant check marked " "and stated: " yes West wall in corner leaked during heavy rains this sp gutter and has not leaked since." {¶9.} In addition, with respect to whether defendant knew of any " cu defects with the mechanical systems,"defendant checked the box marked " "and sta "Fireplaceneedfirewallredone. Had inspection when we bought in 1988 and chimney us not to use them ` fire walls are rebuilt." till {¶10.} ThePurchaseAgreementcontainedan" inspectioncontingency"cla which the contract was subject to aninspection by a qualified inspector to be ch Aftertheinspection,plaintiffshadtheoptionofremovingtheinspectioncontingencyandac the property in its" is"present physical condition, accepting thepropertysubject as agreement to repair certain items, or terminating the Purchase Agreement. (Exhib Complaint at lines 111-120, 135-140.) {¶11.} Plaintiffs inspected the propertytwice before theypurchased it. I plaintiffsspentfromtwotothreehoursonapreliminarywalk-thruinspectingthepropertywi realtor. (See Michelle Yahner depo. at 9; Thomas Yahner depo. at 8.) In March 20 accompanied a professional home inspector in a three-hour inspection of the prop the" inspectioncontingency"clauseofthePurchaseAgreement. (Michelle Yahner depo. Thomas Yahner depo. at 8-10.) Also present were plaintiffs'realtor and Thomas Ya Plaintiffs spent about forty-five minutes in the basement during the home inspec Yahner depo. at 12.) After the inspection, plaintiffs accepted the property and 3 AmendmenttothePurchaseAgreementremovingtheinspectioncontingency. (Defendant'Exhi F.) {¶12.} Plaintiffs allege that shortly after moving into the property, th leakingbasement,frontfoyerandrearporch,aswellasastructurallydamagedgarage. (Comp at ¶7.) Plaintiffs furtherallegethat the defectswere undisclosed by defendant an caused the home to require extensive repair work. (Id. at ¶¶8-9.) {¶13.} Intheirthree-count Complaint, plaintiffs allege fraud (Count One) (Count Two), and breach of warranty (Count Three). Issues {¶14.} In her motion for summary judgment, defendant argues that she is judgmentasamatteroflawbecausereasonablemindscouldconcludeonlythatplaintiffswerea ofallallegeddefectsbeforetheypurchasedtheproperty. In addition, defendant argues have failed to support their fraud claim by establishing that there was a false misrepresentation made to them and that they justifiably relied on any such misr Defendant also asserts that the breach of contract and breach of warranty claims because plaintiffs purchased the property in an " IS"condition and under the the AS emptor. Opinion A. Fraud (Count One) {¶15.} Plaintiffs allege that defendant intentionally failed todisclosek property and intentionally concealed such defects. (Complaint at ¶¶11-13.) 4 {¶16.} InLaymanv.Binns(1988),35OhioSt.3d176,theOhioSupremeCourtstatedthat the doctrine of caveat emptor continues to apply in Ohio. The Court held in its Thedoctrineofcaveatemptorprecludesrecoveryinanactionbythe purchaserforastructuraldefectinrealestatewhere(1)thecondition complainedofisopen 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 th vendor. (Traverse v. Long (1956), 165 Ohio St. 249, approved and followed.) {¶17.} In addressing the question of when a defect is open to observation discoverable,theNinthDistrictCourtofAppealsheldthattheissueisultimatelywhetherth weresuchthatareasonablyprudentpersonwouldbeputonnoticeofapossibleproblem.Tiptonv Nuzum (1992), 84 Ohio App.3d 33, 38. " Once alerted to a possible defect, a p simply sit back and then raise his lack of expertise when a problem arises. Awar problem,thebuyerhasadutytoeitherto(1)makefurtherinquiryoftheowner,whoisunderadut nottoengageinfraud***,or(2)seektheadviceofsomeonewithsufficientknowledgetoapprai the defect."Id. {¶18.} In order to show fraud, the plaintiff must establish five essentia materialfalserepresentationoraconcealment;(2)knowinglymadeorconcealed;(3)withthe ofmisleadinganotherintorelyinguponit;(4)reliance,witharighttodoso,uponthereprese or concealment bythe partyclaiming injury;and (5) injuryresulting from the relia Preterm-Cleveland,Inc.(1987),33OhioSt.3d54,55;Finomorev.Epstein(1984),18OhioApp. 88, 90; Schwartz v. Capital Savings and Loan (1978), 56 Ohio App.2d 83, 86. {¶19.} If a purchase agreement states that the buyer purchases real prope physical condition, the vendor has no duty to disclose latent defects. Eiland v. 5 HunterRealty(1997),122OhioApp.3d446,457;Kayev.Buehrle(1983),8OhioApp.3d381,383. An" is"disclaimerclauseinarealestatepurchaseagreementbarssuitforpassivenon-discl as butdoesnotprotectasellerfrom action alleging positive misrepresentation or conce v. Kehn (Aug.18, 1994),CuyahogaApp. No. 66067, unreported at 8; Kossutich v. Kra 1990), Cuyahoga App. No. 57255, unreported at 4-5. {¶20.} Here,thePurchaseAgreementstatedthatplaintiffswerepurchasingtheprop its "`is'present physical condition,"therefore, defendant had no duty to disclos as However, defendant did have a duty to refrain from committing affirmative acts o misrepresentation or concealment of such latent defects. Eiland, supra; see also (Jan. 13, 2000), Cuyahoga App. No. 75127, unreported at 2. {¶21.} Viewing the evidence in the light most favorableto plaintiffs, the that defendant had experienced, or was aware, of anywater problems in the baseme or rear porch other than what she disclosed on the Ohio Residential Property Dis Furthermore, there is no evidence that defendant was aware of the alleged defect {¶22.} The undisputed evidence shows that plaintiffs had an unimpeded opp inspecttheentirepremises. Both Thomas and Michelle Yahner testified that they we frommovingabouttheentirepropertyduringtheMarch2001inspection. (T. Yahner depo. a M.Yahnerdepo.at9-10.) Although the house contained furnishings and belongings wh some areas from view, therewere no locked doors and plaintiffs were not prevente itemsoutoftheway. (Id.)MichelleYahnertestifiedthatsomefurniturewas,infact,movedd theinspection. (Id.) In other instances, plaintiffs opted not to move obstacles. 11-12.) Indeed, plaintiffs do not allege that defendant prevented them or their 6 thoroughlyinspectingtheentireproperty. Inasmuch as plaintiffs had an unimpeded o examinethepremises,absentfraud,plaintiffscannotrecoverdamagesbasedonimpairmentof opportunity to discover. Layman, supra. {¶23.} Withrespecttothebasement,itisundisputedthatdefendantdisclosedthat wallofthebasementhadpreviouslyleaked. Defendant represented in the Ohio Resident DisclosureForm:" Westwallincornerleakedduringheavyrainsthisspring2000. Fixed hasnotleakedsince."(SeeDefendant'ExhibitC.) Plaintiffs do not allege that defend s other disclosures or representations regarding the basement. Rather, plaintiffs allegations in their brief of" hidden, latent defectswhich werenot ascertainable b "culminated in aseverelyleakingbasement,"but,theydonotspecifythelocationofthesed howthedefectsdifferedfromwhattheyobservedintheinspectionprocess,orwhythedefectsw known to defendant but were not discoverable in the inspection process. {¶24.} Infact,plaintiffsadmitthattheyobserveddrystainsonthewestwallofthe (Plaintiffs'Affidavits,Exhibits CandDat¶5.) In addition, the report of plaintiff should have alerted them to the possibility of leaking in the basement. The Conf Inspection Report produced by plaintiffs'inspector indicates the presence of dry basement and a measurement of ten percent (10%) " active moisture per m (Defendant'Exhibit D at 9.) The report notes:" s Monitor dry stains. Past moist at [NW] ­All walls dry per meter at time of inspection."(Id.) The report also no basementcontainedextensivestorageandlimitedvisibilitywithrespecttothewallsandflo Inaddition, the reportindicatesthe presenceofasumppump which wasnot operatingand maintenance. (Id.) The corresponding notes states: " Exterior sump pit dry ­no 7 sumpappears[abandoned]. Exterior pump wires pinched by cover."(Id.)Thisshouldhav plaintiffstothepossibilitythattherehadbeenwaterproblemsinthepastwhichrequiredthe a sump pump, that the basement could potentially leak in the future and should b that there were areas of the basement which the inspector could not assess for l Gagnev. Jack(March7,2001),CuyahogaApp.No.58141,unreported(buyer'actionforfraudul s misrepresentation was precluded by caveat emptor where buyers bought the propert basement contained electric sump pump, basement floor had visible cracks and wal freshly painted). {¶25.} Moreover, the inspection report contains the following remarks wi basementdampnesswhichsupportaninferencethat,evenifleakageexistedwhendefendantmad her disclosure statement, she was unaware of the leakage: Often * * * the visible signs on the interior of a basement which would indicate a past or present water problem are concealed. For example, an area may be painted over, or basement storage may be piledagainstawallwhereaproblemhasoccurred. If there has been a dry period before the time of the inspection, signs of past wat penetrationmaynot be visible. In such cases, the inspector may no be able to detect the signs of basement dampness or water penetration. * * * BasementDampnessisaproblemthatsometimespersistsinspiteof effortsmadetocorrectit. Depending on the age and condition of the structure,youmaynotbeabletocorrectit. Basementleaksmaynot always leave signs, or may occur only in heavy rains or thaws. Coveredorpainted walls, floorsandceilingssometimesprevent detection of dampness or leaks. 8 (Id. at 8.) (Emphasis in original.) Plaintiffs testified that they read the insp onitintheirdecisiontopurchasetheproperty. (Thomas Yahner depo. at 18; Michelle Y at 22.) {¶26.} Basedontheevidence,itcouldonlybereasonablyconcludedthatplaintiffs noticethattherehadbeenwaterleakageinthepast,thatthebasementdidnothaveaworkingsum pumpsystemtokeepwaterout,andthatthebasementexhibitedactivemoisture. Plaintiffs w noticethatbasementmoistureproblemscanberecurringandmaynotalwaysbedetectedbyahome inspector. The inspection report alerted plaintiffs to the possibility of ongoin problems,obligingthemtoaskdefendantspecificquestionsaboutthebasement. SeeGagne,s at *14 (" seller of realty is not obligated to reveal all that he or she knows. A purchaser to make inquiry and examination." ). {¶27.} More importantly, there is no evidence that defendant concealed t defectsinthepropertyforthepurposeofmisleadingplaintiffs. Plaintiffs have present report which they claim shows that defendant committed fraud with respect to the (Plaintiffs'ExhibitF.) Plaintiffs'expert, Stephen Galli, R.A., an architect, sta heinvestigatedplaintiffs'basementonMarch9,2002. According to his affidavit, he f leakage along cracks in the basement, severalcoatsof foundation wall paint on th differing from the current white paint, one crack in the wall partly filled with horizontalcracksinthewallswhichhadbeenrepairedbut" wouldhaveleakedif quantitywasinternaltothewall"(Id.) He also states that" . OSB paneling"had to an area of the masonry basement wall which matched the leakage area. (Id.) He 9 An individual owning or occupying the home for over a year or so wouldexperienceandlearnthelocationsin[sp.]extentofwaterleaks or other troubled areas in the home. Wood panels in the basement hadbeenremovedpriortothetimethattheYahnerstookpossession of the property because the wood panels were warped. The seller knew or should have known of the existence of this condition. {¶28.} This evidence does not create an issue of fact as to defendant'act s oflatentdefects. With respect to the wood paneling, Michelle Yahner testified th downwhenplaintiffslookedatthehouse. (M. Yahner depo. at 43.) There is no reason that defendant attempted to conceal a latent defect by covering the leaky portio wood paneling and then removed the paneling prior to plaintiffs 'inspection of t Moreover,thereisnoevidenceastowhendefendantpaintedorrepairedthewallsinrelationto decision to offer the home for sale. Such evidence would be essential to establi fraud. {¶29.} Finally, the expert'statement that defendant" s knew or should ha condition in the basement does not create an issue of fact as to fraud. A findin proof that defendant had actual knowledge of the alleged defect and purposely mi concealedit. The expert'opinion that defendant" s knew"of the alleged defect is w Whether defendant " should have known"is an issue that would be relevant only i determination. It is not probative of defendant 'actual knowledge and is irr s determination of fraud. {¶30.} Withrespecttotherearporch,plaintiffshavenotidentifiedtheallegeddef to make the conclusory allegationin their briefthat the propertyhad " porchleaks rear donotidentifytheexactlocationoftheleak,theseverityoftheleak,orthesourceoftheleak 10 isnoevidencethatdefendantmadeanyfalserepresentationsorknowinglyconcealedanydefec the rear porch. Defendant disclosed in the Ohio Residential Property Disclosure back sunporch. Fixed in 1998 by replacing door and threshold [sp.] in room above bedroom)."(See Defendants 'Exhibit C.) In addition, plaintiff 'home inspector re s presenceof" activeleaks"intheroofofthehouse. (SeeDefendant'ExhibitDat5.) Accor s plaintiffs were on notice of potential leaking from the roof. {¶31.} With respect to the rearporch or sunroom, plaintiffs'expert state mayhavebeenmadein that area,they were not properly done, and the seller knew ors known about problems in this area."(Id. at ¶7.) As with the basement leakage, su insufficient to create a jury question as to defendant'fraudulent misrepresentat s evidencethat defendantknewthe repairs had been unsuccessful or that the roof con Therecordisdevoidofevidenceshowingthatdefendantmadetherepairswithapurposetoconce thedefectandmisleadplaintiffsastotheconditionoftheroof. Nor is there evidence th questioned defendant regarding the condition of the porch roof. {¶32.} Furthermore, there is no evidence that defendant made any false r regarding the condition of the front foyer. Plaintiffs state in their affidavits possession of the property,theynoticed a drystain around a light fixture, which defendant as having been fixed. (Plaintiffs 'Exhibits C and D at ¶6.) In additio plaintiffs'inspector stated that the gutters ofthe house needmaintenance and adv "extenddownspoutsawayfromhouse."(SeeDefendants'ExhibitDat5.) This should have al plaintiffs to the possibility of a water problem related to the gutters. Plainti 11 evidencethatdefendantwasawareoftheprobleminthefrontfoyerandknowinglyfailedtodisc the problem. {¶33.} The record contains no evidence that defendant was aware of any l propertyother than what she disclosed on the Ohio Residential Property Disclosur thereanyevidencethatdefendantmadeanyrepresentationsormisrepresentationstotheeffe thepropertywasfreeofwaterproblems. Accordingly, the Court finds there is insuffi of intentional misrepresentation or concealment to create a jury question as to {¶34.} Lastly, plaintiffs claim that soon after taking possession of the discoveredthatthegaragehadseverestructuraldamage. (Plaintiffs'affidavits, Exhibi Theyfurtherclaimthatpriortothattime,whentheyhadlookedatthegarage,theysawnoeviden of the structural problems. (Id.) {¶35.} Plaintiffs'expert notes in his affidavit that: Concerningtheproperty'garage,therearloadbearingmasonrywall s of the garage has an unsupported (hanging) section spanning approximately9'8". The garage and shed is in danger of being seriouslycompromised. This is a serious hazard. Bearing on this unsupported masonry are five rafters holding up approximately 10 linealfeetofthegarage'roof. The Yahners indicated that they were s not aware of this condition because a short section of the wall between the doorway and a boxed wood compartment which was under the unsupported masonry was trimmed with boards. The Yahnersalso stated that the tip of the wood compartment extending out the backside of the masonry into the shed was covered by the seller'personalgoods. This masonry and roof could have collapsed s at any time. Mr. Yahner has installed a steel column next to the doorwaysecuring the masonryoverhead until proper repairs can be made, removing the immediate danger. The seller knew or should have known about this hazard in the garage. 12 {¶36.} Plaintiffs contend that defendant should have disclosed the condi in the Ohio Residential Property Disclosure Form. Defendant checked the box mark answer to the question: " you know of any movement, shifting, deterioration, mat Do (otherthanvisibleminorcracksorblemishes)orothermaterialproblemswiththefoundation or interior/exterior walls?"(See Defendant'Exhibit C.) s {¶37.} The report from plaintiffs'inspector did not identifyanyproblems structure. However, the inspector noted that storage and materials presented lim isconsistentwithplaintiffs' testimonythatdefendant'storedbelongingsandapieceofwo s overthedefectiveportionofthegaragewallpreventedplaintiffsfromdiscoveringtheunsup masonry. (T. Yahner depo. at 38.) {¶38.} Plaintiffs have not produced any evidence showing that defendant condition of the garage masonry wall. Moreover, even if defendant knew of the co garage,thereisnoevidencethat defendantknewthat the condition wasdangerousorconst defectinthegarage. As statedsupra,afindingoffraudrequiresmorethanexperttestimony individual " should have "known about a fact. Here, no question of fact exists a defendanthadactualknowledgethatthegaragestructurewasdefectiveandintentionallycon that knowledge. {¶39.} Intheirbriefinopposition,plaintiffshavecitedmultiplecasesinwhichi were found as to the seller'fraud. However, a careful reading of these cases sho s easilydistinguishablefromthepresentcase. For instance, in several cases, the pur didnotcontainan" is"clause,therefore,theseller'merefailuretodiscloseknownlatentd as s would constitute fraud. Accordingly, summary judgment in favor of the seller was 13 where the evidence showed the seller knew of the latent defect and concealed it. Kwitkowski(Nov.2,1995),CuyahogaApp.No.68530,unreported(sellerhidthefactthatasupp wallinthesub-basementwasnotplacedonaconcretefooter);Vitanzav.Bertovich(Dec.2,199 Cuyahoga App. No. 64699, unreported (sellers represented that the basement was f leakage);Schulzv.Sullivan(1993),92OhioApp.3d205(sellersrepresentedinpurchaseagre thattheywereawareofnoknownbasementleakageorotherdefectswhichwouldmateriallyimpai the fitness of the property for its intended use). {¶40.} Inothercasescitedbyplaintiffs,thepurchaseagreementcontainedan" is andsummaryjudgmentforthedefendantwasimproperbecausetherecordcontainedevidencetha thedefendant-sellermadepositive,fraudulentrepresentationsastotheconditionofthepr Harris v. Burger (August 24, 1995), Cuyahoga App. No. 68303, unreported (seller homewasin" excellentcondition,"thattherewerenoproblemswiththewalkorfoundatio twocracksintherearbasementwallhadbeenrepaired;buyerslaterdiscoveredthegarageslab thefoundationhadstructuraldefectsasaresultofimproperlyconstructedstreetsinthedev whichhadcausedmanyhomestoshiftandledneighboringpropertyownerstoselltheirhomesove a periodof years);Shumneyv. Jones (July 2,1992), CuyahogaApp. No. 63019, unrepor told buyer that the basement had never leaked); Lance v. Bowe (1994), 98 Ohio Ap response to buyers'inquiries, seller orally assured buyers that although the fru problems, the rest of the basement did not leak). In this case, defendant made n representations. {¶41.} Plaintiffs have also cited Apesos v. Kemper Mechanical Services(1 App.3d 307, in which the Court of Appeals for the Second District reversed a gra 14 judgment in favor of the seller on the issue of whether a latent defect existed adutytodisclose. In the present case, defendant had no duty to disclose either o defectsorlatentdefectsbecausethepropertywaspurchased" is"The issue to be determi as . whetherdefendantfraudulently misrepresented or concealed any latent defects that of. Accordingly,Apesos does not apply. {¶42.} Finally,plaintiffs'reliance on DiNapoli v. Lewandowski (Sept. 30, App. C.A. No. 18897, unreported, is misplaced inasmuch as the Court of Appeals d addressthemeritsofthepurchasers'fraudulentconcealmentclaim. Rather, the Court ov appellant/sellers'assignments of error on procedural grounds. {¶43.} Plaintiffs have not met their burden of showing that defendant kno affirmative steps to misrepresent or conceal latent defects for thepurpose of de Accordingly, there is insufficient evidence of fraud to create a genuine issue o defendant is entitled to summary judgment with respect to Count One of the Compl B. Breach of Contract and Breach of Warranty (Counts Two and Three) {¶44.} Plaintiffs allege that defendant breached the Purchase Agreement b disclose known defects in the property. (Complaint at ¶17.) In addition, plainti defendant breached certain warranties imposed by law by delivering possession of which contained undisclosed and concealed defects. (Id. at ¶20.) {¶45.} Plaintiffs have not identified which specific provision of the Pur allegedlybreachedbydefendant. To the extent plaintiffs'claim is based on a theor 15 promisedthat,toherknowledge,therewerenosignificantdefects,theCourtfindsthatthePu Agreement in this case contained no such representation. {¶46.} Indeed,the contract has specific language placing the burden of di defectsonplaintiffs. The" inspection"provision of the Purchase Agreement stated was subject to inspection by a qualified inspector of the buyer 'choice. Subsequ s inspection, the Purchase Agreement gave plaintiffs the option of removing the in contingency and accepting the property in its " is"present physical condition, a as property subject to defendant'agreement to repair certain items, or terminating s Agreement. (Exhibit A to the Complaint at lines 111-120, 135-140.) It also conta cautions at lines 115-120: BUYER understands that all real property and improvements may containdefectsandconditionsthatarenotreadilyapparentandwhich may affect a property'use or value. * * * BUYER acknowledges s that it is BUYER'own duty to exercise reasonable care to inspect s and make diligent inquiry of the SELLER or BUYER'inspectors s regarding the conditions and systems of the property. {¶47.} It is beyond dispute that plaintiffs had an unimpeded opportunity premises,thatplaintiffsobtainedacompleteprofessionalinspectionoftheproperty,andt fullknowledgeoftheinspector'findings,plaintiffsproceededtoacceptthepropertyandco s withthepurchase. In doing so, plaintiffs retained the risk that the property con {¶48.} The case cited by plaintiffs in support of their breach of contrac warrantyclaimsisquitedifferentfromthepresentsituation. InHarrisv.Burger,supra,Cu App. No. 68303, the purchase agreement stated that " seller represents, to his k the 16 property has no latent, structural or other significant defects."Here, defendant representation in the Purchase Agreement. {¶49.} Accordingly,defendantisentitledtosummaryjudgmentwithrespecttoCount and Three of the Complaint. CONCLUSION {¶50.} Forthereasonsstatedabove,themotion forsummaryjudgmentofdefendantMa K. Kerlin is herebygranted. IT IS SO ORDERED. ___________________________________ BURT W. GRIFFIN, JUDGE DATE: January ______________, 2003 17 CERTIFICATE OF SERVICE A copy of the foregoingRuling on Motion for SummaryJudgment has been forw regular U. S. Mail this _____ day of January, 2003 to: Daniel S. White MICHAEL A. SHORE CO., L.P.A. 23200 Chagrin Boulevard Beachwood, Ohio 44122 Attorney for plaintiffs S. Robert E. Lazzaro COSTANZO & LAZZARO, P.L.L. 13317 Madison Avenue Lakewood, Ohio 44107-4814 Attorney for defendant ____________________________________ BURT W. GRIFFIN, JUDGE .