F. Garry Laymann v. Bradley O. Binns

• Decision Date: 23 December 1986
• Docket Number: 86-LW-4120,86 CA 12
• Parties: F. Garry LAYMANN, et al., Plaintiffs-Appellees, v. Bradley O. BINNS, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

F. Garry LAYMANN, et al Plaintiffs-Appellees, v. Bradley O. BINNS, et al Defendants-Appellants.

No. 86 CA 12.

86-LW-4120 (2nd)

Court of Appeals of Ohio, Second District Miami

December 23, 1986

H. Fred Hoefle, Cincinnati, for defendants-appellants.

Robert A. Pratt, Piqua, for plaintiffs-appellees.

OPINION

WILSON Judge.

This cause arises from the Miami County Court of Common Pleas wherein plaintiffs-appellees, after trial to the court, were awarded for fraud in the amount of $40,000.

The findings of the trial court are as follows:

On January 30, 1978, the Defendants, Mr. and Mrs. Binns conveyed by Warranty Deed the residential property to the Plaintiffs, Mr. and Mrs. Layman.

The Plaintiffs were able to pay $75,000.00 cash for the property, because Mr. Layman had recently sold a farm he owned in an adjoining county. Ramona Olding was his sales agent on the farm, and the Plaintiffs asked her to find them a house over by Covington, Ohio. Mrs. Olding saw the Binns' property advertised in a newspaper and called the listing broker, Mr. Yates. She was not informed of any problems with the structure, and didn't notice anything wrong with the basement wall or house when she showed it on two (2) separate occasions.

The Plaintiffs had no experience with the building of homes or other structures, and they didn't notice anything out of the ordinary when they inspected the property. Mr. Layman was interested in using part of the basement for an office and asked Mr. Binns, who was present at the time, what caused a wet spot around the basement door. At no time did Mr. or Mrs. Binns point out the bowed basement wall to the Plaintiffs.

Mr. Binns was experienced in building homes and he had developed the lot and contracted with a builder to build the house in 1972. Problems developed with the construction of the house which resulted in a lawsuit being filed in 1973. Part of the problem was the bowed basement wall. The lawsuit was settled with the builder, and another builder estimated the cost to repair the problem would be Four Thousand Dollars (4,000.00).

when the Defendants listed the property with Mr. Yates in 1977, they specifically informed him of the bowed basement wall problem and wanted it to be pointed out to all potential buyers. Mr. Yates informed his sales persons, but did not specify it on the MSL listing or inform other sales persons outside his office, such as Mrs. Olding.

The Laymans decided to sell the property in 1981 and wanted to list the property for $125,000.00. But they learned for the first time that there was a structural defect and listed it for $90,000.00. They got no buyers for that price and reduced the price to $70,000.00. The expert witnesses who testified as to the cost of repairing the structure at that time varied from $32,000.00 to $49,000.00.

No one was interested in buying the property and the Plaintiffs' financial condition was such that they abandoned it in August, 1984, and moved to Florida.

The house was sold at a foreclosure sale for $46,666.00, being two-thirds of the appraised value of $70,000.00

The basement wall problem was a defect in the structure which was known to the Defendants. The defect was not apparent upon inspection to inexperienced persons such as the Plaintiffs. Although the Defendants made the information available to their real estate agent, they had a duty to point out the defect to the Plaintiffs when they were looking at the house. Failure to do so amounted to a fraud upon Mr. and Mrs. Layman. Filbey v. Cooper (1973), 37 Ohio Misc. 119; Mitchell v. Slocum (1981), 7 Ohio Misc.2d 33.

As a result of the fraud, the Plaintiffs were damaged. They are entitled to such damages as will fairly compensate them for the wrong suffered as a natural and proximate result of the fraud. Forest v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164. After considering the evidence relating to damages, the Court determines that Plaintiffs have been damaged in the amount of $40,000.00.

Appellants assert four assignments of error, the first two of which are argued together and read:

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY RENDERING JUDGMENT FOR APPELLEES WHICH WAS CONTRARY TO LAW AND BASED UPON INSUFFICIENT EVIDENCE IN THE FOLLOWING RESPECTS:

(1) THE FAILURE OF THE TRIAL COURT TO APPLY THE DOCTRINE OF CAVEAT EMPTOR WAS CONTRARY TO LAW UNDER THE CIRCUMSTANCES OF THIS CASE.

(2) THE FAILURE OF THE TRIAL COURT TO HOLD APPELLEES TO THEIR DUTY TO INSPECT THE PREMISES WAS CONTRARY TO LAW:

(3) THE FINDING OF THE TRIAL COURT THAT APPELLANTS WERE GUILTY OF FRAUD WAS INCORRECT AND BASED UPON INSUFFICIENT EVIDENCE:

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THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN AWARDING JUDGMENT...