Carrico v. Bower Home Inspection, L.L.C.
2017 Ohio 4057
| Ohio Ct. App. | 2017Background
- In Sept. 2015 Tim and Whitney Carrico contracted Bower Home Inspection, LLC to inspect a Mount Vernon house for visible wood‑destroying insects; sale was contingent on receipt of the report.
- Inspector Bower issued a written report stating "no visible evidence" of wood‑destroying insects and noting certain crawlspace areas were obstructed/inaccessible; the report disclaimed warranties for latent/concealed defects.
- After closing the Carricos discovered visible, extensive insect damage in crawlspace areas they contend were readily observable and not concealed.
- Carricos sued Bower and his LLC alleging breach of fiduciary duty, negligence, breach of contract, and violations of the Ohio Consumer Sales Practices Act.
- Defendants moved for summary judgment relying on an unsigned inspection report; after the Carricos opposed, defendants filed a reply attaching a signed copy of the report and an affidavit from Bower.
- Trial court granted summary judgment for defendants; on appeal the Fifth District reversed, concluding genuine factual disputes remained (timing and whether damage was latent) and finding the appellants waived any procedural objection to the late‑filed reply evidence by not moving to strike or seeking leave to file a surreply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly considered new evidence appended to defendants’ reply | Carrico: signed report and Bower affidavit were new and should not be accepted without opportunity to respond | Bower: reply evidence simply proved the existing contract and inspection findings | Court: Carrico waived procedural objection by not moving to strike or requesting leave to file a surreply, so the reply evidence was considered |
| Whether summary judgment was appropriate on claims alleging failure to report obvious, accessible damage | Carrico: affidavit raises that damage was blatant and observable at time of inspection, creating genuine factual dispute | Bower: contract scope and disclaimers eliminated duty to inspect inaccessible/obstructed areas and disclaim liability for concealed/future defects | Court: conflicting affidavits created genuine issues of material fact (when damage occurred; latent vs. observable), so summary judgment was improper |
Key Cases Cited
- Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427 (standard that summary judgment improper if material fact genuinely disputed)
- Inland Refuse Transfer Co. v. Browning‑Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321 (court may not resolve ambiguities on summary judgment)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (appellate review of summary judgment is de novo)
- Drescher v. Burt, 75 Ohio St.3d 280 (moving party’s initial burden on summary judgment)
- Henkle v. Henkle, 75 Ohio App.3d 732 (non‑moving party must present evidentiary materials to show genuine issue)