Schroeder v. Henness
2013 Ohio 2767
Ohio Ct. App.2013Background
- In 2004–2005, the Hennesses had drainage measures installed and a sump pump flood occurred in 2005, repaired the same day, and there were no recurring basement floods.
- In 2007, the Hennesses completed a Residential Property Disclosure Form but did not disclose the sump-pump flood in 2005 under Water Intrusion.
- The Schroeders purchased the home in 2008 'as is' with a right to inspections, including mold, and discovered mold in 2009.
- In 2010–2012, the Schroeders sued for fraud, failure to disclose, negligence, negligent misrepresentation, rescission, wrongful concealment, promissory estoppel, and punitive damages.
- The trial court granted summary judgment in favor of the Hennesses on fraud (except one pleaded claim), wrongful concealment, and failure to disclose; negligence and punitive damages were also resolved against the Schroeders.
- On appeal, the court affirmed, limiting the fraud claim to the 2005 sump-pump nondisclosure, and upheld the as-is clause/caveat emptor as to latent defects, and denied leave to amend to add Robbins Contracting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Civ.R. 9(B) properly applied to plead fraud with particularity? | Schroeders contend Civ.R. 9(B) was ignored and evidence beyond the complaint could be considered. | Hennesses argue only the pleaded claim matters for Civ.R. 9(B); responses to summary judgment cannot amend pleading. | Fraud limited to the pleaded 2005 sump-pump nondisclosure; Civ.R. 9(B) satisfied for that claim. |
| Did genuine issues of material fact exist to defeat summary judgment on fraud and related nondisclosure claims? | There were issues about drainage, exterior brick sealant, and latent defects affecting disclosure. | No genuine issues; the 2005 sump-pump flood was not a material defect and mold was not proven to be caused by it. | No genuine issue of material fact; summary judgment proper for fraud as limited to 2005 sump-pump nondisclosure and proximate causation not shown. |
| Does the as-is clause bar negligent or statutory non-disclosure claims for latent defects known to the seller? | Latent defects known to the seller may not be shielded by the as-is clause; disclosure duties remain. | As-is clause and caveat emptor bar such claims absent fraud; latent defects require disclosure only if known. | As-is clause does not shield from nondisclosure of latent defects actually known; no genuine issue to support negligent/non-disclosure. |
| Was the trial court’s denial of leave to amend appropriate to add Robbins Contracting as a defendant? | Extensive testing showed Robbins’ workmanship as a primary mold cause; amendment would not prejudice. | Delay and post-discovery testing would prejudice; amendment would cause trial delays. | Court did not abuse discretion; denial affirmed. |
Key Cases Cited
- Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494 (Ohio 2010) (fraud elements and pleading standards; summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary judgment burdens; Civ.R. 56 standards)
- Decaestecker v. Belluardo, 2008-Ohio-2077 (Ohio 2d Dist. Montgomery) (duty of seller to disclose under R.C. 5302.30; latent defects)
- Graber v. Emch, 2012-Ohio-1395 (Ohio 6th Dist. Sandusky) (as-is clause and latent defects; disclosure duties)
- Abrogast v. Werley, 2010-Ohio-2249 (Ohio 6th Dist. Lucas) (latent defects and disclosure obligations)