Barich v. Scheidler Med. Group, L.L.C.
2015 Ohio 4446
Ohio Ct. App.2015Background
- Barich conveyed three parcels at 533, 535, and 539 Park Ave., Hamilton, to Scheidler Group for $174,000 with a 15-year amortization and five-year balloon; deed delivered November 8, 2007.
- Purchase agreement allegedly stated the property was sold as is, with a handwritten note to that effect on the agreement attached to Barich’s complaint.
- Barich sued June 5, 2013 for breach of contract for failing to make monthly payments under the agreement.
- Scheidler Group opposed summary judgment and counterclaimed fraud, attaching a copy of the agreement with the “as is” language, and Barich submitted an affidavit asserting the same language existed.
- Scheidler Group argued material facts existed regarding the original contract’s “as is” clause and alleged fraud and nondisclosure. Barich argued the contract was clearly “as is” and undisputedly breached.
- Trial court granted Barich summary judgment on August 12, 2014; the court found no corroborating evidence of fraud beyond self-serving affidavits and affirmed the contract’s “as is” language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract included an 'as is' clause | Barich: contract explicitly 'as is' and no fact issue. | Scheidler: original contract did not include 'as is' wording. | Assignment of error 1 overruled; contract clearly states 'as is'. |
| Fraudulent inducement based on future development plans | Barich: alleged future-revival representations were false and induced breach. | Scheidler: representations about future actions are predictions, not fraud. | Assignment of error 2 overruled; future promises not actionable as fraud. |
| Fraudulent nondisclosure of latent defects with 'as is' sale | Barich: nondisclosure of latent defects breached duty despite 'as is'. | Scheidler: 'as is' clause relieves seller from disclosure duty. | Assignment of error 3 overruled; 'as is' clause defeats nondisclosure claim. |
Key Cases Cited
- Liegel v. Bainum, 2011-Ohio-6022 (12th Dist. 2011) (self-serving affidavits cannot create genuine issues of fact)
- Hillstreet Fund III, L.P. v. Bloom, 2010-Ohio-2961 (12th Dist. Butler 2010) (self-serving affidavits insufficient without corroboration)
- White v. Sears Roebuck & Co., 2011-Ohio-204 (10th Dist. Franklin 2011) (affidavits alone cannot defeat summary judgment absent corroboration)
- Deutsche Bank Natl. Trust Co. v. Carter, 2014-Ohio-5193 (12th Dist. Warren 2014) (self-serving affidavits insufficient to raise material factual issues)
- JPMorgan Chase Bank, NA v. Carroll, 2013-Ohio-5273 (12th Dist. Clinton 2013) (self-serving statements without corroboration insufficient for genuine issue)
- Fifth Third Mtge. Co. v. Orebaugh, 2013-Ohio-1730 (12th Dist. Butler 2013) (summary judgment standard and burden-shifting for movant)