Eiland v. Coldwell Banker Hunter Realty

• Citation: 122 Ohio App.3d 446,702 N.E.2d 116
• Decision Date: 25 August 1997
• Docket Number: No. 71369,71369
• Parties: EILAND et al., Appellants, v. COLDWELL BANKER HUNTER REALTY, Appellee.
• Court: United States Court of Appeals (Ohio)

Page 446

122 Ohio App.3d 446

702 N.E.2d 116

EILAND et al., Appellants, v. COLDWELL BANKER HUNTER REALTY, Appellee.

No. 71369.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Aug. 25, 1997.

Cynthia D. Smith, Cleveland, for appellants

Weston, Hurd, Fallon, Paisley & Howley Co., L.L.P., John M. Baker and John A. Albers, Cleveland, for appellee.

PORTER, Presiding Judge.

Plaintiffs-appellants Reginald and Lesia Eiland appeal from a summary judgment entered in favor of defendant-appellee Coldwell Banker Hunter Realty, real estate broker, on plaintiffs' claims of fraud against the broker arising out of their purchase of a home with a leaky basement. We find no error and affirm.

On January 12, 1995, plaintiffs filed suit alleging breach of contract and fraudulent misrepresentation in connection with their purchase of a home located at 3610 Antisdale, Cleveland Heights, Ohio. Defendants named were the owner/seller of the property, Jean Kelly, and the real estate broker she listed the property with, defendant-appellee Coldwell Banker.

On July 2, 1996, after completion of discovery, Coldwell Banker filed a motion for summary judgment, alleging that there was no genuine issue of material fact implicating it in any fraudulent misrepresentations as to the condition of the property. Plaintiffs opposed the motion with their own brief and exhibits. Copies of depositions were filed in support of the motion. The facts that appear of record and from the summary judgment papers appear below.

On April 11, 1994, plaintiffs contracted to buy the Antisdale Road residence from owner Jean Kelly. Kelly had lived in the house for seventeen years. Coldwell Banker, through its agent Don Vargo, represented the seller Kelly during this transaction. The purchase agreement stated:

"(p 1) * * * [T]he property shall include the land, all appurtenant rights, privileges, easements, and all buildings and fixtures in their present condition * * * .

" * * *

"(p 10) This property has been examined by PURCHASER. There have been no representations, warranties or statements concerning the condition of said premises, the value of same, the improvements thereon, the use that can be made of said premises, or anything concerning the same other than what is included in this written Purchase Agreement upon which PURCHASER has relied."

Plaintiffs' real estate broker, L. Bland and Associates, and its agent, Lylia Bland, prepared the purchase agreement on its form, even though plaintiffs also agreed that Bland was also acting on behalf of Kelly according to the agency disclosure statement executed on April 11, 1994. Bland and Coldwell Banker were to split the seven percent realtor's commission fifty-fifty.

Plaintiffs acknowledged that neither Coldwell Banker nor its agent Vargo made any representations to them regarding the condition of the basement before execution of the purchase agreement. They also acknowledged that they were buying the property in its "as is" condition on April 11, 1994, per Paragraph 1 of the purchase agreement. Plaintiffs admitted that they never discussed any part of the purchase agreement with Coldwell Banker or Vargo and were aware that the purchase agreement contained no provision for a home inspection.

Plaintiffs also acknowledged receipt on April 11, 1994 of a residential property disclosure form as mandated by R.C. 5302.30. The statements contained on the residential property disclosure statement were made by Kelly and not Coldwell Banker or Vargo. A disclaimer to that effect stated: "The representations contained on this form are made by the owner and are not the representations of the owner's agent or subagent." Vargo apparently filled out the form with information supplied by Kelly, who signed it on October 25, 1993, over five months before the sale. Item D of the residential property disclosure form inquires:

"Do you know of any current water leakage, water accumulation, excess dampness or other defect with the basement/crawlspace?

"If Owner knows of any repairs, alterations or modifications to the Property or other attempts to control any water or dampness problems in the basement or crawlspace since owning the Property (but not longer than the past five years), please describe."

Kelly, the owner, answered "no" to these questions. Plaintiffs sought no additional information for the five-month gap from October 25, 1993 to April 11, 1994, the date of sale. The acknowledgment signed by plaintiffs stated their "UNDERSTAND[ING] THAT THE STATEMENTS ARE MADE BASED ON THE OWNER'S ACTUAL KNOWLEDGE AS OF THE DATE SIGNED BY THE OWNER."

Kelly's deposition transcript indicated affirmatively that she was not aware of any current water problems in the basement and did not know of any repairs, modifications, or alterations to the property to control water problems within the past five years. This same information was contained in the property disclosure statement, which she filled out with Vargo's help. Kelly did acknowledge, however, that water seepage had been a problem at one time due to roots of a tree that she had removed when she had the basement waterproofed over five years ago, but stated that she had put carpet down on the basement floor thereafter and there had been no recurrence of the seepage. She told Vargo about this history. Vargo's deposition was not taken.

The evidence also indicated that soon after the purchase agreement was signed, but before closing, the plaintiffs visited the property and expressed concern about water standing in the backyard after a storm. The plaintiffs acknowledged that they were told about the waterproofing by Kelly at that time. They brought in their own expert inspector about a week after they entered into the purchase agreement, who found "some signs" of past moisture in the basement. The expert also conducted a moisture meter test, which indicated low levels of moisture. Mrs. Eiland stated that the inspector's finding dampness in the walls did not deter them from going through with the purchase. Plaintiffs never obtained copies of receipts or other waterproofing papers from Kelly to pin down the date of the waterproofing. Nor did plaintiffs or their expert inspector ever look behind the sofa in the basement where the paneling was stained. Mrs. Eiland noticed the stains where the sofa had been and smelled an odor of dampness on the first day she received the keys and took possession, around July 1, 1994.

Plaintiff Reginald Eiland admitted that five to six years prior to purchasing the home, he had been a real estate broker for one year and participated in the sale and purchase of two homes on the behalf of two clients during that year.

On September 3, 1996, the trial court granted Coldwell Banker's motion for summary judgment. Plaintiffs voluntarily dismissed their claim as to Jean Kelly without prejudice, and this appeal ensued.

JURISDICTION

Because of the concerns raised by the dissenting opinion and the recurring nature of the problem, we will first address the threshold issue of whether this case presents a final appealable order over which this court has jurisdiction. We hold that it does.

The plaintiffs originally named Jean Kelley and Coldwell Banker as defendants to their complaint. Coldwell Banker moved for summary judgment, which was granted. Plaintiffs voluntarily dismissed their claim without prejudice against Kelley pursuant to Civ.R. 41(A)(1)(a) and filed their notice of appeal herein from the summary judgment in favor of Coldwell Banker.

The dissent contends that the Civ.R. 41(A)(1)(a) dismissal is a nullity because the plaintiffs can dismiss only the whole action and not the claims against a single codefendant, i.e., Kelley. Under the dissent's theory, the claims against Kelley are still treated as pending in the case below notwithstanding the plaintiffs' dismissal of them because there has been no "entry of judgment adjudicating all the claims and the rights and liabilities of all the parties" within the meaning of Civ.R. 54(B). We do not believe that it was ever the intent of Civ.R. 54(B) to preserve claims that have been voluntarily dismissed.

As a result, the majority has determined to treat the appeal as one from a final appealable order pursuant to guidelines adopted by this court en banc on December 3, 1993, which state as follows:

"GUIDELINES FOR 54(B) APPLICATION TO DETERMINE FINAL APPEALABLE ORDERS

"1. Civ.R. 54(B) will be applied only where there are claims or actions against parties still presently pending in the trial court.

"2. If claims or actions against former parties were dismissed without prejudice at any time during the proceedings below, they will be treated 'as if no action had been brought at all' as to those parties. DeVille Photography, Inc. v. Bowers (1959), 169 Ohio St. 267, 272 [8 O.O.2d 281, 283-284, 159 N.E.2d 443, 446]; Johnston v. Cartwright (C.A.8, 1965), 344 F.2d 773, 774.

"3. Where it appears that claims or actions are still pending between or among some or all of the parties below, are not otherwise moot, and the trial court has not properly certified that there is 'no just reason for delay' under Civ.R. 54(B), the case will be dismissed sua sponte with the right of reinstatement after obtaining a final appealable order."

It is important to review the history of this problem in this court to fully appreciate the reasoning behind the guidelines and the purposes served by their adoption.

In 1993, this court was confronted with a number of sua sponte dismissals of appeals which presented the following scenario, similar to the instant case:

Plaintiff sued defendants A and B. Defendant A obtained summary judgment in his favor. In order to appeal that judgment, plaintiff voluntarily dismissed defendant B without prejudice, pursuant to Civ.R. 41(A)(1)(a) and filed a notice of appeal from the summary judgment in favor of A.

Some panels of this court were sua sponte dismissing this kind of...