Case Information
*1
[Cite as
Greig v. Wallick
,
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES:
GARY L. GREIG : W. Scott Gwin, P.J.
: John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2010AP090036
:
: WILLIAM C. WALLICK : O P I N I O N Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County
Court of Common Pleas Case No. 2009CV040307 JUDGMENT: Affirmed In Part and Reversed and
Remanded In Part DATE OF JUDGMENT ENTRY: January 10, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant TZANGAS, PLAKAS, MANNOS & RICHARD W. HINIG RAIES, LTD 217 N. Broadway James M. McHugh New Philadelphia, Ohio 44663 Megan J. Frantz
220 Market Ave., South
Eighth Floor
Canton, Ohio 44702
[Cite as
Greig v. Wallick
,
Edwards, J.
{¶1} Defendant-appellant William Wallick appeals from the August 24, 2010 Judgment Entry of the Tuscarawas County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE {¶2} In 2005, appellant William Wallick sold his house to Gary Greig. At the time, appellant had owned the house for approximately 25 years. Prior to purchasing the house in July 2005 for $165,000.00, Greig had viewed it either two or three times and “probably looked at the basement twice.” Trial Transcript at 73. Greig testified that “there was nice white dry all on every part of that basement. And the floor was like glossy. I see where she [his real estate agent] meant that you could’ve ate off the floor. I mean it looked perfect.” Trial Transcript at 73. Greig testified that he reviewed the Residential Property Disclosure Form
in deciding to purchase the house. He testified that he remembered reviewing the form, which had been signed by appellant on May 2, 2005, because it indicated that the roof was only two years old. Appellant checked “No” on the Residential Property Disclosure Form in response to the following questions: “D) WATER INTRUSION: Do you know of any previous or current water
leakage, water accumulation, excess moisture or other defects to the property, including but not limited to any area below grade, basement, or crawl space?... “E) STRUCTURAL COMPONENTS (FOUNDATION, BASEMENT/CRAWL
SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any movement, shifting, deterioration, material cracks/settling (other than visible minor cracks or blemishes) or other material problems with the foundation, basement/crawl space, floors, or interior/exterior walls?” Greig further testified that he had a home inspection done. The inspection
report stated that it made no representations as to the condition of the basement walls because they were covered with dry wall. Greig moved into the house in October of 2005. He testified that he first
noticed water problems in the basement in the early spring of 2006. According to Greig, the east basement wall was leaking water. He testified that he cleaned up the water and waited to see if it would recur and that it did. Greig testified that he next checked the gutters, downspouts and drains to make sure that they were not clogged and functioned properly. However, the problem continued to get worse.
{¶8} In mid-2008, Greig contacted Pioneer Basement Solutions which recommended an exterior waterproofing system. When Pioneer tore out the drywall, it was discovered that the east wall was moderately bowed. Greig testified that the bow “went the entire length of the wall” and that there were big cracks in the wall. He also testified that the insulation that had been removed by Pioneer was moldy and had mildew and that there was mold on the drywall. Greig testified that he had a fortress stabilization system put in at Pioneer’s recommendation. Trial Transcript at 84. Jerry Whitaker, who was employed by Pioneer at the time, testified that there was mold on the front of the drywall and that, when the drywall was removed, there were fractures and cracks in the wall and several layers of caulking had been applied to the cracks. The following testimony was adduced when Whitaker was questioned about the cracks:
“A. Yeah, there was some bowing to the wall where the fracture had - - where the soil had started to push that fracture in.
“Q. Okay. And let’s first talk about the bowing. How would you describe the bowing of the wall?
“A. It was moderate. I wouldn’t say it was too far gone and I suggested we could arrest it, the situation, so it wouldn’t bow anymore.
“Q. Okay. And then let’s talk about the fractures or the cracks in the wall.
What did you observe regarding those?
“A. They were - -
“Q. And let me be more specific. How big were they?
“A. They were very - - some were hairline cracks, some were as big as a half inch to three quarters to an inch. Maybe stick your, you know, the tip of your finger in some cracks. Some were horizontal, some were the stair stepping type of cracks. Just pretty typical but not safe.
“Q. Okay. And how long were these cracks?
“A. They started out in the corner and from what we could tell they covered the whole length of the wall up to if I remember right, it was forty feet, the whole length of the rear wall.
“Q. So pretty long.
“A. Yeah, pretty long.
“Q. You talked about a crack that was half an inch wide. Was there caulking in that crack?
“A. Yeah, there was.
{¶23} “Q. And there were multiple layers of caulking in it?
{¶24} “A. The caulking was there and had pulled away from where they originally put it on so that told me that this wall was in fact moving. Whoever put the caulking there from that point it had moved so had stretched and pulled away from it. That’s when at that point I told Mr. Greig you might want to, you know, think about arresting the wall, keep it from moving anymore.
{¶25} “Q. So what you observed regarding the wall with the cracks and the bowing, was that something that you could just leave alone and let it be?
{¶26} “A. I couldn’t do it with good conscience, no. That’s why I strongly recommended to him to take a look at it and it needs to be corrected.
{¶27} “Q. And what did you recommend to him be done?
{¶28} “A. We recommended the fortress grid straps on that wall to keep it from moving any further. “Q. The caulking that you discovered, was it the same color or different
colors? “A. There were shades of white, some kind of a yellowish. I don’t know if
somebody couldn’t buy the whole one consistent color or if they were just different layers over time.” Trial Transcript at 38-39. Whitaker further testified that the caulking that was in the cracks and at
the base of the wall indicated that someone was trying to stop the water problem. He testified that there were layers of caulking. Whitaker testified that the leaking in the basement was caused by clogged footer drains on the exterior of the house that caused water to build up on the outside of the house. According to Whitaker, the soil then became heavier over time and caused the wall to bow and crack. He also testified that a bowed wall should be fixed even if it were bowed a little bit. When asked, Whitaker opined that the wall was significantly bowed and cracked when the house was sold to Greig in August of 2005 and that the basement wall leaked at that point in time. Whitaker testified that twelve fortress strips were used to stabilize the wall at a cost of $400.00 a piece to install and that Greig needed two additional fortress strips installed. In order to install the exterior drainage system, Pioneer had to remove some landscaping around Greig’s house. On April 15, 2009, Greig filed a complaint against appellant for fraudulent
misrepresentation and concealment and negligent misrepresentation. Greig, in his complaint, sought punitive damages. A bench trial was held on July 13, 2010. As memorialized in a Judgment Entry filed on August 24, 2010, the trial court found that Greig had proven, by a preponderance of the evidence, all of the elements of the claims of fraudulent concealment and fraudulent misrepresentation. The trial court granted Greig [1] judgment against appellant in the amount of $72,244.50. Of this amount, $42,244.50 was for economic damages, $15,000.00 was for noneconomic damages and $15,000.00 was for punitive damages. Of the $42,244.50, $14,720.00 was for past economic damages and
$27,524.50 was for future economic damages. Of the $14,720.00, $9,635.00 was for installation of an exterior drainage system and footer drains by Pioneer, $5,000.00 was for installation of twelve fortress footer straps, and $85.00 was for obtaining a mold estimate. The $27,524.50 in future economic damages can be broken down as follows: Move electrical box to install two additional Fortress straps - $585.00 Installation of two additional Fortress straps - $800.00 Replace drywall and studs - $995.00
Repair and replace landscaping to original - $1,597.50 Mold clean up - $3,547.00
Decreased value of property with bowed, cracked wall - $20,000.00. Appellant now raises the following assignments of error on appeal: “I. THE COURT’S AWARD WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
“II. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY RELATED TO MENTAL ANGUISH AND AWARDING COMPENSATION BASED ON THAT TESTIMONY.
“III. THE TRIAL COURT ERRED IN DETERMINING DAMAGES. “IV. THE TRIAL COURT ERRED IN AWARDING PUNITIVE DAMAGES.” I
Appellant, in his first assignment of error, argues that the trial court’s judgment finding that Greig had proven, by a preponderance of the evidence, all of the elements of the claims of fraudulent concealment and fraudulent misrepresentation was against the manifest weight of the evidence. We disagree.
In applying the manifest weight standard of review, our role is to determine
whether there is relevant, competent and credible evidence upon which a fact finder
could base its judgment. Cross Truck v. Jeffries , 5 th Dist. No. CA-5758,
{¶48} As stated above, the trial court found that appellant's conduct constituted a fraudulent misrepresentation. To prove fraud, a plaintiff must show that there was: (a) a representation, or where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying on it, (e) justifiable reliance upon the representation or concealment, and (f) resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs. , 23 Ohio St.3d 69, 491 N.E.2d 1101, (1986), paragraph two of the syllabus.
{¶49} As is stated above, appellee, in his complaint, alleged that appellant fraudulently concealed that the exterior basement wall was bowed and cracked and also fraudulently concealed that the wall was or had been leaking water. Appellant checked “No” on the Residential Property Disclosure Form in
response to the following questions: “D) WATER INTRUSION: Do you know of any previous or current water
leakage, water accumulation, excess moisture or other defects to the property, including but not limited to any area below grade, basement, or crawl space?... “E) STRUCTURAL COMPONENTS (FOUNDATION, BASEMENT/CRAWL
SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any movement, shifting, deterioration, material cracks/settling (other than visible minor cracks or blemishes) or other material problems with the foundation, basement/crawl space, floors, or interior/exterior walls?” Greig testified that he reviewed the same and, at trial, Paula Jane
Sulzener, his real estate agent, testified that there was no reason to believe that she did not go over the disclosure form with Greig because that was her normal practice. At the bench trial in this matter, parts of appellant’s deposition testimony were read into the record because appellant was not present at the trial. Appellant, during his deposition, testified that the east wall was bowed when he bought the house in 1980. Appellant testified that he dry walled the basement, but that he did not intend to sell the house when he put up the drywall. Appellant testified that he decided to have the basement dry walled because “[t]hat was the only thing on my list of things I wanted to do to the house…That was the last item on the list to finish up…” Trial Transcript at 19-20. He also denied putting caulk on the east wall. When asked whether he had the house on the market prior to doing the basement dry walling, appellant stated “absolutely not.” Trial Transcript at 21. At the bench trial, Jodi Bambeck testified that she worked with Cathy
Petro at Remax Experts Realty (now Experts Realty) in 2004. Bambeck testified that Exhibit 3, a Residential Agent Synopsis Report, showed that the subject house was listed on June 17, 2004 with Petro, but did not sell. The listing expired in December of 2004. She further testified that Exhibit 4, also a Residential Agent Synopsis Report, showed that Jeff Mathias listed the same property for sale on May 3, 2005 and sold it on July 29, 2005 to Greig. Bambeck testified that both exhibits were true and accurate copies of what was available on the Multiple Listing Service.
{¶56} At the bench trial, Bambeck further testified that Exhibit 20, a photograph, was taken in 2004. According to Bambeck, the picture showed what the basement looked like in June of 2004 when Petro first listed the property. She testified that the picture was a true and accurate picture kept in the ordinary course and scope of Expert Realty’s business. The picture shows that the east basement wall was not drywalled at the time of the first listing.
{¶57} Based on the foregoing, we find that there was competent, credible evidence supporting the trial court’s finding that appellant knew of the defective basement wall and fraudulently concealed and/or failed to disclose the same.
{¶58} Appellant’s first assignment of error is, therefore, overruled.
II Appellant, in his second assignment of error, argues that the trial court
erred in awarding Greig $15,000.00 for mental anguish. Appellant specifically contends that appellee presented no expert testimony to support such claim. A reviewing court will not reverse a trial court's decision regarding its
determination of damages absent an abuse of discretion. Kaufman v. Byers, 159 Ohio
App.3d 238,
damages for mental anguish. See, for example, Leforge v. Nationwide Mut. Ins. Co ., 82
Ohio App.3d 692,
{¶64} “Q. And what is your home to you? What’s the importance of your home to you?
{¶65} “A. Well, to me it’s like - - it’s independence and – I’m sorry, but it does affect me - -.” Trial Transcript at 105-106.
{¶66} Based on the foregoing, we find that expert testimony was not required to establish damages for mental anguish and that the trial court’s decision to award Greig $15,000.00 for the same was not arbitrary, unconscionable or unreasonable.
{¶67} Appellant’s second assignment of error is, therefore, overruled.
III Appellant, in his third assignment of error, argues that the trial court erred
in awarding Greig $27,524.50 in future economic damages and $14,635.00 (paid to Pioneer) in past economic damages. As is stated above, an abuse of discretion standard applies. See
Kaufman , supra. Thus, we must whether the trial court's decision was unreasonable, arbitrary or unconscionable. See Blakemore , supra. Appellant initially contends that Exhibits 10-13 should not have been
admitted, over objection, because they constituted hearsay. Exhibit 10 is a November
18, 2008, handwritten estimate from James in the amount of $995.00 for hanging
drywall on the basement wall and replacing studs. Exhibit 11 is a proposal dated
October 24, 2008, in the amount of $1,597.50 from Schoenbrun Landscaping, Inc. to
13
repair and replace landscaping removed during installation for the exterior drainage
system. While Exhibit 12 is a November 21, 2008, estimate from Ohms Law Electric in
the amount of $585.00 regarding providing labor and materials to move service
equipment away from the basement wall to allow for waterproofing, Exhibit 13 is a mold
clean up proposal from In-Door Air Quality Consultants in the amount of $3,547.00. No
testimony was presented by the persons who prepared the estimates or proposals.
Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). We find that the estimates constituted hearsay because they
were admitted to prove the truth of the matter asserted. See Noble v. Mandalin , Ohio App.3d 11,
$20,000.00 for the decreased property value of his house when there was no expert testimony supporting such award. At the bench trial, the following testimony was adduced when Greig was asked about how the bowed wall with fortress strips affected the value of his house: “A. Well, if you’re truthful and you want to sell your house you’re going to
have to disclose it and if I walk into a house and I can see that wall I’m running away from it. I’m not buying a house with a bowed basement wall and that’s my fear. If I don’t take one of those other steps which are costly, I’m going to lose value in that house when I got to sell it.
{¶74} “Q. And what is the value that you will lose?
{¶75} “A. I’d say about $20,000.00
{¶76} “MR. HINIG: No foundation.
{¶77} “THE COURT: I’m going to allow him as a homeowner to opine. Again, the value or the weight to be given Rick is something you’ll argue. “A. I’d say at least $20,000.00, Judge.” Transcript at 104. “Under the owner-opinion rule, an owner of real property, by virtue of his
ownership and without qualification as an expert, is competent to testify to his property's
fair market value. * * * The rule is based on the presumption that ‘the owner of real
estate * * * possess[es] sufficient acquaintance with it to estimate the value of the
property, and his estimate is therefore received although his knowledge on the subject
is not such as would qualify him to testify if he were not the owner.’ ” (Citations omitted.)
Cincinnati v. Banks ,
$14,635.00 in past economic damages. Of this figure, $9,635.00 was for installation of an exterior drainage system by Pioneer and to repair the footer drains, $5,000.00 was for the installation of twelve fortress straps to repair the bowed wall.
{¶81} Appellant argues that the $9,635.00 was to waterproof the house and repair the footer drains and that “[n]either of these was caused by the crack in the basement wall.” With respect to the $5,000.00 to install the fortress straps to repair the bowed wall, appellant maintains that “[t]he clogged drains caused water to accumulate behind the wall which in turn caused the bowing of the wall. None of that was caused by anything that [appellant] had done or even knew about.” However, the evidence was clear that appellant knew about the bowed
wall and fraudulently concealed and misrepresented the same. There also was testimony that that wall was leaking at least as of August of 2005 when Greig purchased the same and that attempts had been made to remedy the leaking problem by caulking. There were multiple layers of caulking at the base of the basement wall which was drywalled over by appellant. Based on the foregoing, we find that the trial court did not err in awarding
Greig the $9,635.00 for installation of an exterior drainage system by Pioneer and for repair of the footer drains and the $5,000.00 for the installation of twelve fortress straps to repair the bowed wall. Appellant’s third assignment of error is, therefore, sustained in part and
overruled in part.
IV Appellant, in his fourth assignment of error, argues that the trial court
erred in awarding Greig $15,000.00 in punitive damages. We disagree. The decision whether to award punitive damages is within the trial court's
discretion and, absent an abuse of discretion, the court's ruling will be upheld. See
Kemp v. Kemp , 61 Ohio App.3d 671,
Pleas is affirmed in part and reversed and remanded in part.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________ ______________________________ ______________________________
JUDGES
[Cite as
Greig v. Wallick
,
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GARY L. GREIG :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
WILLIAM C. WALLICK :
:
Defendant-Appellant : CASE NO. 2010AP090036 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Tuscarawas County Court of Common Pleas is affirmed in part and reversed and remanded in part. Costs assessed 87% to appellant and 13% to appellee.
_________________________________ _________________________________ _________________________________ JUDGES
Notes
[1] After Greig died, Carol Greig, the Executrix for the Estate of Gary Greig, was substituted as appellee in this case.