McNabb v. Hoeppner
2011 Ohio 3224
Ohio Ct. App.2011Background
- Appellants McNabb sued Hoeppner and AccuSpec for fraud, negligent misrepresentation, and contract/negligence/warranty claims after purchase of a home.
- Seller Hoeppner filled a disclosure form stating no knowledge of leaks or water intrusions; form warned it was not a warranty and buyers should obtain their own inspections.
- Purchase agreement stated buyers relied on independent inspection and were not relying on seller representations.
- AccuSpec inspected the home but limitation clause confined inspection to readily accessible areas and did not require moving impediments; inspection warned it was not a warranty.
- Appellants later discovered uninspected attic and basement crawl spaces and moisture issues; AccuSpec re-inspected but findings did not alter original report.
- Trial court granted summary judgment; the court held no genuine issues of material fact and affirmed the dismissal of claims against Hoeppner and AccuSpec.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud: whether as‑is clause precludes fraud claim against seller | McNabb | Hoeppner | No genuine issue; no evidence of knowledge or reliance by Hoeppner |
| Negligent misrepresentation: whether seller duties or reliance existed | McNabb | Hoeppner | No justifiable reliance; no evidence of negligent misrepresentation by Hoeppner |
| AccuSpec: whether inspection contract breached duty or warranty | McNabb | AccuSpec | No breach of contract or standard of care; report not a warranty |
| Overall: whether summary judgment was proper given remaining factual questions | McNabb | Hoeppner/AccuSpec | Correct; no genuine issues of material fact precluded judgment as a matter of law |
Key Cases Cited
- Rogers v. Hill, 124 Ohio App.3d 468 (Ohio App. 1998) (as‑is clause not a shield against fraud claim unless fraud absent)
- Funk v. Durant, 155 Ohio App.3d 99 (Ohio App. 2003) (as‑is clause cannot relieve seller liability for false statements)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden shifting in summary judgment standard)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (reliance and evidence standards in fraud claims)
- Delman v. City of Cleveland Hts., 41 Ohio St.3d 1 (Ohio 1989) (negligent misrepresentation elements and reliance)