MICHAEL MORGAN, ET AL. v. BENJAMIN ROSS COHEN, ET AL.
No. 107955
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 12, 2019
2019-Ohio-3662
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 12, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-886008
Appearances:
Coakley Lammert Co. L.P.A., Cynthia A. Lammert, George S. Coakley, and Richard T. Lobas, for appellants/cross-appellees.
Wachter Kurant, L.L.C. and Mark I. Wachter, for appellees/cross-appellants Benjamin Ross Cohen and Meg Gerstenblith.
Reminger Co., L.P.A., Aaren R. Host, and Brian D. Sullivan, for cross-appellees Northeast Real Estate Group, L.L.C. and Nicole Frantz.
{¶ 1} This case involves a dispute arising out of a residential real estate transaction between plaintiffs-appellants Michael Morgan and Hannah Arnson (collectively, “buyers“) and defendants-appellees/third-party plaintiffs-cross-appellants Benjamin Cohen and Meg Gerstenblith (collectively, “sellers“). Buyers appeal the trial court‘s decision granting sellers’ motion for summary judgment on buyers’ claims for fraudulent misrepresentation and fraudulent inducement and denying buyers’ motion for partial summary judgment on the issue of liability, arising out of special assessments which buyers were required to pay after they purchased a condominium unit from sellers. Sellers cross-appeal the trial court‘s denial of their motion for summary judgment against third-party defendants-cross-appellees Northeast Real Estate Group, L.L.C. and Nicole Frantz (collectively, “Northeast“), who served as sellers’ real estate agent in the transaction, on their claims for contribution and indemnification.
{¶ 2} For the reasons that follow, we affirm the trial court‘s judgment.
Factual Background and Procedural History
{¶ 3} In May 2015, buyers agreed to purchase a residential condominium unit from sellers. The condominium unit, unit #311 (the “condominium unit,” the “unit” or the “property“), was one of approximately 13 condominium units in Random Road Lofts, a three-story apartment-style condominium complex, located at 2079 Random Road in the Little Italy area of Cleveland (collectively, the “condominium complex,” the “complex” or the “building“). The owners of units in
{¶ 4} Sellers purchased the condominium unit in 2011. In 2014, sellers decided to list the unit for sale. They retained Northeast as their real estate agent to assist them in selling the property and listed the unit for sale in the winter of 2015.
Water Issues in the Complex
{¶ 5} During the time sellers owned the unit, they experienced few problems with it. Sellers were aware, however, that owners of certain other units had experienced problems with water leaking into their units from outside. Sellers were also aware of a problem with a support beam over the driveway of the complex.
{¶ 6} Beginning in or around 2012, the condominium association hired consultants to investigate the cause of the water problem and retained counsel to negotiate with Fortney & Weygant, Inc. (“F&W“), the builder of the complex, and its insurer, CNA, in an effort to get them to make repairs and/or indemnify the association and affected unit owners for the cost of repairs and damages due to construction defects allegedly causing the water problem. The investigation and negotiations continued for several years. Unit owners were kept apprised of the status of the investigation and negotiations during association meetings — some of which sellers attended — and through meeting minutes and related correspondence, which the association sent to unit owners.
{¶ 7} Although sellers attended certain association meetings and received minutes from meetings where construction issues and the retention of consultants
{¶ 8} Cohen testified that it was his understanding that “there were some issues with other units in our building,” that “they were being dealt with” and that the problems “were specific to the individual units and were not * * * indicative of an endemic problem, with the building.” Cohen further testified that he believed either the owners of the affected units or the insurance company would be paying to fix those problems and that “this really didn‘t affect our unit, and, fortunately, * * * wouldn‘t affect us.” Gerstenblith similarly testified that she believed the issue was a matter of “getting the individual unit owners who had damage to their units, their repairs paid for and addressed,” which “did not seem relevant to us,” because sellers’ unit had sustained no damage. Gerstenblith stated that it was her understanding that the association was involved because multiple units were affected but that the costs to repair the affected units would be paid by the owners of those units or the builder or its insurer.
{¶ 9} In April 2015, the condominium association entered into a tolling agreement with F&W relating to the association‘s “claims * * * for relief against the
The Purchase Agreement, Sellers’ Disclosures and Buyers’ Due Diligence
{¶ 10} On May 19, 2015, sellers completed an Ohio residential property disclosure form (“RPDF“) for the property, as required by
{¶ 11} On May 21, 2015, Arnson contacted Lynn Singer, an acquaintance of Arnson‘s mother and then-secretary of the condominium association, to find out more about the building. Arnson testified that she inquired “about the building, her general opinion and thoughts of how everything was going.” Although the Singers’ unit was one of the units that had sustained water damage, Arnson testified that Singer had only “positive things to say” and told her that “they love the building.” Arnson testified that Singer made no mention of any structural problems with the building, water leaks or construction defects. Other than their receipt of the disclosures, buyers had no conversations or other communications with sellers regarding the unit, the condition of the building or the potential for litigation or additional charges or assessments prior to the sale.
{¶ 12} On May 27, 2015, the parties entered into a purchase agreement for the property. The agreement stated that the property was “being purchased in its ‘AS IS’ PRESENT PHYSICAL CONDITION” and was contingent upon the results of a professional general home inspection by buyers. The purchase agreement
{¶ 13} Buyers arranged for a general home inspection of the property by a professional inspector. Following the inspection, buyers agreed to waive the inspection contingency in the purchase agreement provided sellers made certain repairs and certain credits were issued against the purchase price. The repairs were made and the credits were issued.
{¶ 14} In the condominium addendum, sellers agreed to provide current and complete copies of the declaration, bylaws and rules and regulations of the condominium association, to buyers. Buyers, in turn, agreed to review and decide whether to approve these documents. Buyers further “agree[d] to consult with the Association and to inspect and make diligent inquiry about all aspects of the Property, its condition and systems, the condominium development, and its management and operations. This includes, without limitation, declarations and by-laws, professional management, board/association meeting minutes, fees, expenses, adequacy of reserve funds, budgets, rules and regulations * * * and all use and occupancy restrictions.” (Emphasis deleted.) In the condominium disclosure form, buyers “acknowledged” “having been advised to inspect and make diligent inquiry about all aspects of the Property, its conditions and systems, the condominium development, and its management and operations. This includes, without limitation, the documents provided by Seller, board/association meeting
{¶ 15} Buyers testified that, prior to closing on the property, they reviewed the declaration, the bylaws, the rules and regulations and reserve funds of the association, a proposed association budget and use and occupancy restrictions. Buyers, however, did not review any of the association‘s meeting minutes or “make inquiry” of any association board members or residents other than Singer regarding the association, the condition of the complex or its management and operations. Buyers testified that “[d]ue to sellers’ representations regarding the condition of the property, a lack of contemplated litigation, and a lack of contemplated assessments, we did not investigate further.” On June 20, 2015, buyers signed the condominium addendum indicating that they had “reviewed and approved” the condominium documents and “removed the contingency relating to [buyer‘s] review and approval of them.”
{¶ 16} On July 9, 2015, title on the property transferred from sellers to buyers. That same day, buyers received notice of a condominium association meeting scheduled for July 22, 2015 regarding the status of negotiations with F&W relating to construction defects.
{¶ 17} Buyers attended the July 22, 2015 condominium association meeting. Buyers testified that, at the meeting, they learned for the first time that there were “concerns about the construction of the building * * * along with negotiations and a potential lawsuit” and “the potential for special fee assessments to be levied against
Litigation by the Association and Special Assessments
{¶ 18} In August 2015, the condominium association filed suit against F&W and others involved in the construction of the building for improper construction and unworkmanlike performance based on alleged construction defects related to the water intrusion. The case settled in or around January 2017.
{¶ 19} Beginning in September 2015, various special assessments were levied against unit owners to cover legal expenses and remediation costs that were not covered by the settlement. Buyers testified that they paid nearly $60,000 in special assessments to the condominium association in 2016 and 2017 to cover their share of these costs and expenses.2
Buyers’ Lawsuit against Sellers
{¶ 20} In early 2017, in preparation for litigation against sellers, buyers reviewed, for the first time, the association meeting minutes for the time period prior to the sale. Arnson testified that if she had seen the meeting minutes prior to purchasing the unit, she would have been “concerned” about purchasing the
{¶ 21} On September 15, 2017, buyers filed a complaint, asserting claims of breach of contract, fraudulent misrepresentation and fraudulent inducement against sellers. Buyers alleged that sellers had made various false representations on the RPDF, condominium addendum and condominium disclosure form regarding their knowledge of material defects in the property, additional or proposed assessments, expenses or fees relating to the property and pending lawsuits involving the property. Buyers claimed that they had justifiably relied on sellers’ misrepresentations, that sellers’ misrepresentations were material to their decision to purchase the property and that sellers had made the misrepresentations with knowledge of their falsity, with reckless disregard for their truthfulness or with actual malice to induce them to purchase the property. Buyers sought to recover both compensatory and punitive damages, plus interest, costs and attorney fees from sellers.
{¶ 22} Sellers filed an answer and a third-party complaint against Northeast. In their answer, sellers denied the material allegations of buyers’ complaint and asserted various affirmative defenses. In their third-party complaint, sellers alleged
Motions for Summary Judgment
{¶ 23} The parties filed cross-motions for summary judgment. Sellers filed a motion for summary judgment on all buyers’ claims arguing that (1) sellers’ representations on the RPDF were not fraudulent because they had no duty to disclose any conditions outside their unit to buyers; (2) buyers were barred from recovery because they had failed to conduct their own due diligence prior to purchasing the property and (3) buyers could not establish their damages with reasonable certainty.3
{¶ 25} Northeast filed a motion for summary judgment on sellers’ claims for contribution and indemnification on the ground that there was no evidence that Northeast had any knowledge of any potential assessments or pending litigation involving the condominium association.5
{¶ 26} On November 6, 2018, the trial court granted sellers and Northeast‘s motions for summary judgment and denied buyers’ motion for partial summary judgment on liability. The trial court held that buyers’ breach of contract claim was barred by the “as is” clause in the purchase agreement and the doctrine of caveat emptor. With respect to buyers’ fraud claims, the trial court held that there was no evidence that sellers’ disclosures were false and that “[b]ased on Ritter [v. Cahill, 8th Dist. Cuyahoga No. 77790, 2001 Ohio App. LEXIS 3720 (Aug. 23, 2001)],” sellers “did not have a duty to disclose conditions in the common areas or other units owned by other parties.” The trial court further held that, because buyers had an opportunity to inspect the meeting minutes and had failed to do so, buyers were “‘charged with knowledge of the conditions that a reasonable inspection would have disclosed,‘” quoting Pedone v. Demarchi, 8th Dist. Cuyahoga No. 88667, 2007-Ohio-6809, ¶ 32, and could not establish that their reliance was justified or that sellers “had a duty to speak.” Because it had granted sellers’ motion for summary judgment, the trial court found that Northeast was entitled to summary judgment on sellers’ derivative claims for indemnification and contribution.
{¶ 27} Buyers appealed, raising the following two assignments of error for review:
FIRST ASSIGNMENT OF ERROR: The Trial Court erred in granting summary judgment to Defendants-Appellees Meg Gerstenblith and Benjamin Cohen.
SECOND ASSIGNMENT OF ERROR: The Trial Court erred in denying Plaintiffs-Appellants Michael Morgan and Hannah Arnson‘s Motion for Partial Summary Judgment on Liability.
{¶ 28} Sellers cross-appealed, raising the following cross-assignment of error for review:
If the trial court erred by granting summary judgment in favor of the appellees, and denying summary judgment in favor of the appellants, then the trial court erred by granting summary judgment to the third-party defendant/cross-appellees.
Law and Analysis
Standard of Review
{¶ 29} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference to the trial court‘s decision and conduct an independent review of the record to determine whether summary judgment is appropriate.
{¶ 30} Under Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law.
{¶ 31} On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
Buyers’ Motion for Summary Judgment on Fraud Claims against Sellers
{¶ 32} In its first assignment of error, buyers argue that the trial court erred in granting summary judgment in favor of sellers on buyers’ claims for fraudulent misrepresentation and fraudulent inducement6 because the trial court “erroneously concluded” that sellers did not make any misrepresentations to buyers and that buyers did not justifiably rely on any alleged misrepresentations by sellers. Buyers contend that the trial court‘s decision should be reversed because, “[a]t [a] minimum,” genuine issues of material fact exist as to “both of these points.”
{¶ 33} Buyers’ fraud claims are based on the representations sellers made in the RPDF, the condominium addendum and the condominium disclosure form. Buyers assert that, based on the information reported in the association meeting minutes and sellers’ execution of the tolling agreement, sellers knew at the time of the sale that (1) there were construction defects that affected all unit owners, (2) litigation was being contemplated by the association against various entities involved in the construction of the complex, (3) the association (and, ultimately, all
{¶ 34} Buyers argue that the trial court‘s determination that sellers’ disclosures were not misrepresentations is “unsupported by * * * the record” and is “inconsistent with”
{¶ 35} As a general rule, Ohio follows the doctrine of caveat emptor in real estate transactions, which precludes a purchaser from recovering for a structural defect if: “(1) the condition complained of is open to observation or discoverable upon reasonable inspection; (2) the purchaser had the unimpeded opportunity to examine the premises; and (3) there is no fraud on the part of the vendor.” Layman v. Binns, 35 Ohio St.3d 176, 519 N.E.2d 642 (1988), syllabus. “‘The doctrine of caveat emptor is designed to finalize real estate transactions by preventing disappointed real estate buyers from litigating every imperfection existing in residential property.‘” Psarras v. Rayburn, 11th Dist. Geauga No. 2018-G-0181, 2019-Ohio-2168, ¶ 54, quoting Thaler v. Zovko, 11th Dist. Lake No. 2008-L-091, 2008-Ohio-6881, ¶ 31. However, a seller may still be liable to a buyer if the seller fails to disclose known latent conditions. See, e.g., Binns at 178 (“a vendor has a duty to disclose material facts which are latent, not readily observable or discoverable through a purchaser‘s reasonable inspection“); see also Roberts v. McCoy, 2017-Ohio-1329, 88 N.E.3d 422, ¶ 18 (12th Dist.) (
{¶ 36} The elements of fraud7 are: (1) a representation of fact (or where there is a duty to disclose, concealment of a fact); (2) that is material to the transaction at issue; (3) made falsely, with knowledge of its falsity or with utter disregard and recklessness as to whether it is true or false; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the misrepresentation (or concealment); and (6) resulting injury proximately caused by the reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984).
{¶ 37} While caveat emptor still applies,
{¶ 38} If a seller fails to disclose a material fact on the RPDF with the intention of misleading the buyer and the buyer relies on the RPDF, the seller may be liable for a resulting injury. Wallington, 2010-Ohio-6181, at ¶ 18; Pedone, 2007-Ohio-6809, at ¶ 31. However, where, a party “‘has had the opportunity to inspect the property, he is charged with knowledge of the conditions that a reasonable inspection would have disclosed.‘” Pedone at ¶ 33, quoting Nunez v. J.L. Sims Co., Inc., 1st Dist. Hamilton No. C-020599, 2003-Ohio-3386, ¶ 17. Sellers of residential real property have no duty to inspect their property or to otherwise acquire additional knowledge regarding defects on their property. Roberts, 2017-Ohio-1329, 88 N.E.3d 422, at ¶ 17. “[T]he duty to conduct a full inspection falls on the purchasers and the disclosure form does not function as a substitute for such careful inspection.” Id.
{¶ 40} Following a thorough, independent review of the record, we find no genuine issues of material fact as to buyers’ fraud claims.
Sellers’ Alleged Fraudulent Misrepresentations
{¶ 41} First, buyers have not pointed to any evidence in the record that any statements by sellers in the disclosures were false when made or that sellers actively “concealed” any material information from buyers. Buyers contend that the
In the RPDF
- STRUCTURAL COMPONENTS (FOUNDATIONS, BASEMENT, CRAWL SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any previous or current movement, shifting, deterioration, material crack/settling (other than visible minor cracks or blemishes) or other material problems with the foundation, basement/crawl space, floors or interior/exterior walls?
No. - Do you know of any recent or proposed assessments, fees or abatements, which could affect the property?
No. - The following are other known material defects in or on the property:
None.
For purposes of this section, material defects would include any non-observable physical condition existing on the property that could be dangerous to anyone occupying the property or any non-observable physical condition that could inhibit a person‘s use of the property.
In the condominium addendum
- SELLER warrants that there are no (a) additional fees; (b) proposed or voted assessments; or (c) maintenance fee increases, except as follows:
None.
In the condominium disclosure form
Are there any other fees, other than the monthly maintenance fee, that unit owners must pay, e.g., assessments, reserve fund contributions?
No.- Does Seller have knowledge of any new or increased fees, expenses, or assessments under consideration by the board or association?
No. - Does Seller have knowledge of any pending lawsuits by or against the association?
No.
{¶ 42} With respect to sellers’ representations regarding in the RPDF regarding the physical condition of the property, as buyers acknowledge in their brief, the RPDF “relates specifically to [s]eller‘s unit, while the [condominium addendum] and [condominium disclosure form] contain representations about the Lofts.”8 Buyers have not shown that there were any structural problems or other “material defects” with the unit at the time of the sale and have not identified any authority interpreting the RPDF as requiring the disclosure of “defects” outside the unit being sold.
{¶ 43} With respect to sellers’ representation regarding “pending lawsuits,” it is undisputed that there were no “pending” lawsuits by or against the association at the time of the sale. A lawsuit is “pending” from its inception until a final judgment is entered by a court. A lawsuit is not “pending” before a complaint
{¶ 44} With respect to sellers’ representations regarding fees and assessments, it is undisputed that no fees or assessments other than the quarterly fee to the association — which was fully and accurately disclosed in the disclosures — had been charged or had been proposed to be charged against the owner of the unit prior to the sale. Although there is some discussion in the meeting minutes of hiring consultants and attorneys, there is nothing in the meeting minutes (or in the record otherwise) that indicates that, at the time of sale, unit owners who were not experiencing problems with water in their units would be required to pay (or that it had been proposed that such unit owners pay) any additional sums beyond the $1,500 quarterly association fee. Arnson admitted that there is nothing in the meeting minutes predating the sale “about charging unit owners something other than their regular monthly maintenance fees to handle any kind of additional expenses.” That additional charges or assessments may have been possible in the future did not render sellers’ representations false when made. Compare Ritter, 2001 Ohio App. LEXIS 3720 (affirming summary judgment in favor of sellers of
Justifiable Reliance
{¶ 45} Second, even if sellers had knowingly misrepresented a material fact or had concealed some material fact that they had a duty to disclose to buyers, there is no genuine issue of material fact that buyers could not have justifiably relied on sellers’ misrepresentation or concealment when purchasing the property.
{¶ 46} In determining whether a party justifiably relied on a representation, courts consider all of the relevant circumstances, including the nature of the transaction, the form and materiality of the representation, the relationship of the parties and their respective knowledge and means of knowledge. See, e.g., Kovacic v. All States Freight Sys., 8th Dist. Cuyahoga No. 69926, 1996 Ohio App. LEXIS 3474, 18 (Aug. 15, 1996); McDonald v. Fogel, 11th Dist. Trumbull No. 2018-T-0079, 2019-Ohio-1717, ¶ 20. Justifiable reliance reflects “a balance between reliance and responsibility“:
“The rule of law is one of policy and its purpose is, while suppressing fraud on the one hand, not to encourage negligence and inattention to one‘s own interests. There would seem to be no doubt that while in ordinary business transactions, individuals are expected to exercise reasonable prudence and not to rely upon others with whom they deal
to care for and protect their interests, this requirement is not to be carried so far that the law shall ignore or protect positive, intentional fraud successfully practiced upon the simple-minded or unwary.”
AmeriFirst Sav. Bank v. Krug, 136 Ohio App.3d 468, 495-496, 737 N.E.2d 68 (2d Dist.1999), quoting 50 Ohio Jurisprudence 3d, Fraud and Deceit, Section 132 (1984).
{¶ 47} Generally, “[t]he ‘question of justifiable reliance is one of fact.‘” Mar Jul, L.L.C. v. Hurst, 4th Dist. Washington No. 12CA6, 2013-Ohio-479, ¶ 61, quoting Crown Property Dev., Inc. v. Omega Oil Co., 113 Ohio App.3d 647, 657, 681 N.E.2d 1343 (12th Dist.1996). Where, however, no genuine issue of material fact exists as to whether a party justifiably relied on a misrepresentation, “summary judgment on that issue is appropriate.” March v. Statman, 1st Dist. Hamilton No. C-150337, 2016-Ohio-2846, ¶ 22.
{¶ 48} Buyers’ claim that sellers had knowledge of construction defects affecting the complex, the likelihood of litigation relating to those construction defects and the potential for additional fees and assessments to remedy the defects and/or fund the litigation is based on information contained in the association meeting minutes. Buyers point to several references in the association meeting minutes from 2011 to 2014 that they contend show (1) there were construction defects affecting the building as a whole (as opposed to issues in only certain units), (2) there was a dispute with the builder regarding liability for those defects and (3) that the cost to repair those defects and resolve the issues with the builder would be passed on to all unit owners. Buyers assert that because sellers attended certain
{¶ 49} In Brewer v. Brothers, 82 Ohio App.3d 148, 611 N.E.2d 492 (12th Dist.1992), the seller, who had performed the electrical work on the house, told the buyer he had “nothing to worry about” after the buyer asked the seller about the quality of the electrical system. Id. at 150. Although the purchase agreement stated that the property was being sold “as is,” the buyer had a right to perform an inspection of the electrical system, but did not do so, claiming that he had relied on the seller‘s representation in deciding not to have an electrical inspection. Id. After the sale, the buyer discovered extensive problems with the electrical work and sued the seller. Id. The Twelfth District held that neither the “as is” clause nor the buyer‘s failure to conduct an inspection precluded the buyer‘s claim for fraudulent misrepresentation, noting that a “buyer‘s duty to inspect * * * terminates when representations are made with respect to a material fact in response to a buyer‘s direct inquiry.” Id. at 152-154.
{¶ 50} In Brownstone Developers II, L.L.C. v. Jivan Properties, L.L.C., 5th Dist. Stark No. 207-CA-00160, 2008-Ohio-883, the buyer initially looked at the
{¶ 51} The Fifth District held that there were sufficient factual findings to conclude that the seller had fraudulently induced the buyer to purchase the property and that the buyer had reasonably relied on the seller‘s representation that all
{¶ 52} In Mar Jul, L.L.C., 2013-Ohio-479, the Fourth District held that the trial court had erred in granting summary judgment for the seller on the buyer‘s fraud claim relating to the seller‘s misrepresentation of rental income and the duration of assigned leases in connection with the “as is” purchase of a commercial property. Id. at ¶ 68. In that case, the buyer did not review the written leases to verify the lease terms prior to the sale. Id. at ¶ 54, 64. However, it was undisputed that even if he had attempted to do so, the written leases would not have revealed the “true rent” the tenants paid due to oral agreements that modified the written lease terms and would not have reflected whether tenants had, in fact, agreed to renew their leases as represented by the seller. Id. at ¶ 64-67. It was also noted that the seller had instructed the buyer not to speak with tenants prior to the sale. Id. at ¶ 64. The court held that there was a genuine issue of material fact as to whether the buyer justifiably relied on the seller‘s misrepresentations because the buyer‘s reliance was “not patently unreasonable” and it could not be said
“‘Where the means of obtaining the information in question were not equal, the representations of the person believed to possess superior information may be relied upon.‘” Andrew v. Power Marketing Direct, Inc., 10th Dist. [Franklin] No. 11AP-603, 2012-Ohio-4371, 978 N.E.2d 974, ¶ 62 quoting Fort Washington Resources, Inc. v. Tannen, 858 F.Supp. 455, 460 (E.D.Pa.1994). Conversely, “[a]n individual has no right to rely on a representation when the actual facts are equally open to both parties.” Takis L.L.C. v. C.D. Morelock Props., Inc., 180 Ohio App.3d 243, 905 N.E.2d 204, 2008 Ohio 6676, at ¶ 30 (10th Dist.).
{¶ 53} This case is unlike the cases relied upon by buyers. This is not a case where the buyers made a direct inquiry of the sellers and the sellers responded by providing affirmative misrepresentations regarding specific conditions relating to the property. This not a case where the sellers actively concealed information known to be a deciding factor in the buyers’ purchase decision or actively concealed a source of that information from the buyers. And this is not a case of “superior knowledge” or “unequal opportunity.”
{¶ 54} To the extent there was material information in the association meeting minutes relevant to buyers’ decision to purchase the property, buyers were on an “equal footing” with sellers with respect to that information, i.e., the source of the knowledge was the same for buyers and sellers and both buyers and sellers had access to the information prior to the sale. Indeed, in this case, buyers not only had the right and opportunity — but a contractual obligation — to “inspect” and “make diligent inquiry about all aspects of the Property, its condition and systems, the
{¶ 55} Arnson testified if she had reviewed the meeting minutes at issue prior to purchasing the unit, she would have “questioned” and been “concerned” about purchasing the property based on what she had read in the meeting minutes. Morgan went a step further. He testified that if he had been aware of the information in the meeting minutes, he would not have purchased the property. Buyers, however, chose not to look at the meeting minutes until 2017, when preparing to file suit against sellers.
{¶ 56} Based on the record before us, it cannot be said that buyers justifiably relied on any alleged misrepresentations, nondisclosure or concealment by sellers with respect to the matters at issue. See, e.g., Kovacic, 1996 Ohio App. LEXIS 3474, at 19 (“A plaintiff cannot allege an action for fraud where the true facts are equally open to both parties.“); cf. Bender v. Logan, 2016-Ohio-5317, 76 N.E.3d 336, ¶ 56 (4th Dist.) (“[C]ourts have understandably been unwilling to find justifiable reliance when a party failed to read a document before signing it. ‘“A person of ordinary mind cannot be heard to say that he was misled into signing a paper which was different from what he intended, when he could have known the truth by merely looking when he signed.‘“), quoting ABM Farms v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574 (1998), quoting McAdams v. McAdams, 80 Ohio St. 232, 240-241, 88 N.E. 542 (1909). Accordingly, the trial court properly granted sellers’ motion for
Other Rulings on Summary Judgment
{¶ 57} Because we find that the trial court properly granted sellers’ motion for summary judgment on buyers’ fraud claims, we overrule buyers’ second assignment of error, i.e., that the trial court erred in denying buyers’ motion for summary judgment as to liability on those same claims, and sellers’ cross-assignment of error, i.e., that the trial court erred in granting Northeast‘s motion for summary judgment on sellers’ claims for indemnification and contribution.
{¶ 58} Judgment affirmed.
It is ordered that appellees recover from appellants and that cross-appellees recover from cross-appellants the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR