Fowler v. Fimiani, 2017 Ohio 9333

Patricia Fowler bought Carolyn Fimiani’s Mentor, Ohio house in 2014 after signing a purchase agreement that sold the property “as is” but was contingent on an acceptable professional home inspection.
Carolyn disclosed prior basement water intrusion on the Ohio Residential Disclosure Form (noting 2006 flood and waterproofing in 2007 and 2009) but did not list a 2013 rain/flooding event; Patricia admits the only seller representations were on that form.
Patricia’s inspector reported a horizontal hairline crack on the rear basement wall and recommended verifying proper backfill/drainage and waterproofing; Patricia waived the inspection contingency after negotiating limited repairs and closing-cost credit.
In June 2015 Patricia experienced basement flooding and sued Carolyn for breach of contract and fraudulent misrepresentation/concealment; Carolyn denied wrongdoing and moved for summary judgment.
The trial court denied Patricia’s motion to strike several exhibits, allowed Carolyn to supplement with an affidavit authenticating those exhibits, and granted summary judgment for Carolyn; Patricia appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused discretion by allowing defendant’s supplementation/authentication of exhibits without giving plaintiff additional response time	Fowler argued the court erred by permitting supplementation and denying her motion to strike without opportunity to respond to the authentication affidavit	Fimiani argued the documents were either already in the record (pleadings, discovery responses, inspector’s report) or irrelevant, and supplementation only authenticated previously disclosed materials	No abuse of discretion: documents were known to Fowler, some were pleadings or produced in discovery, and Fowler showed no prejudice from supplementation
Whether genuine issues of material fact exist on fraudulent misrepresentation/concealment such that summary judgment was improper	Fowler argued Fimiani failed to disclose known basement water problems (2008/2013) and concealed defects to induce purchase, so fraud claims survive despite "as is" clause	Fimiani argued the "as is" clause and the inspection contingency bar justifiable reliance; she denied fraudulent intent and pointed to the inspector’s report that put Fowler on notice of foundation/drainage issues	Summary judgment affirmed for Fimiani: Fowler cannot show justifiable reliance because the contract was contingent on inspection; no evidence of actual concealment or fraudulent intent that would overcome the inspection contingency and "as is" sale

Dresher v. Burt, 75 Ohio St.3d 280 (explains moving party’s burden to identify record materials supporting summary judgment)
Mootispaw v. Eckstein, 76 Ohio St.3d 383 (sets standard that, when viewing evidence most strongly for nonmoving party, only one conclusion adverse to nonmovant must be reasonable)
Cardi v. Gump, 121 Ohio App.3d 16 (stating elements of fraudulent misrepresentation cause of action)
International Brotherhood of Electrical Workers v. Smith, 76 Ohio App.3d 652 (court may consider unauthenticated documents where authenticity is not contested)
Knowlton Co. v. Knowlton, 10 Ohio App.3d 82 (same principle regarding consideration of evidentiary material on summary judgment)