Gilbey v. Cooper, 56081
| Decision Date | 20 June 1973 |
| Docket Number | No. 56081,56081 |
| Citation | 37 Ohio Misc. 119,310 N.E.2d 268 |
| Parties | , 66 O.O.2d 366 GILBEY et al. v. COOPER et al. * |
| Court | Ohio Court of Common Pleas |
Joseph Baronzzi, Lisbon, for plaintiffs.
Bryce W. Kendall, Salem, for Coopers.
Earl R. Miller, Salem, for Capels.
This matter came on to be heard, on the Complaint of the plaintiffs, Clifford Gilbey and Karen S. Gilbey and the Answers of Kenneth Cooper and Margaret Cooper, and Robert Capel. The matter was referred to the Hon. Louis Tobin, Judge, by Journal Entry of March 22, 1973, by the Hon. J. Warren Bettis, Judge, to be heard on the transcript of testimony and oral arguments of the parties.
The Complaint asks for actual and punitive damages relative to the sale by the Coopers to the Gilbeys, through the auspices of the Robert Capel Agency, by and through their Agent, Bruce Capel, on March 15, 1969, of the piece of real estate known as 770 Benton Road, Perry Township, Columbiana County, Ohio, and being Lots Number 1285 and 1286, part of plat No. Four, Salem Heights, Allotment, Vol. Seven, Page 55, of Columbiana County Plat Records and being the same property conveyed to the Coopers by Frank Sepic in Vol. 893, Deed Records of Columbiana County, Ohio.
The Complaint states that the plaintiffs bought the land as described but were never informed by the defendants or their agent, that part of the property was being taken by the state of Ohio for road purposes and never told by the defendants that there was a temporary easement for work purposes taken by the state of Ohio, and therefore, asks for actual damages in the amount of five thousand dollars ($5000), and punitive damages in the same amount. The defendants' answer denies the essential allegations of the Complaint and also alleges there were stakes marking the boundary of the easement of the front yard of the premises referred to in the Complaint at the time of the negotiations.
The court finds the following to be the facts:
One: Bruce Capel was at all times an agent of the Robert Capel Real Estate Agency and at all times represented them in this negotiation. Also, that he was the agent, for the Coopers in the negotiations between the Coopers and the Gilbeys.
Two: The following are the dates of importance in this case: The center line of the new road was made a matter of record on August 9, 1968. That a temporary and permanent easement was taken by the state on January 23, 1969, and signed by the Coopers, for which they were compensated some $3750 on January 15, 1969, but that said easement was never recorded in the Columbiana County, Ohio, records until March 18, 1969.
Three: That a listing was made by the Capel Agency to sell the property for $10,500 and a listing agreement was made with the Capel Agency on Amrch 8, 1969.
Four: That a purchase agreement was signed by the Gilbeys to purchase said property on March 15, 1969, which the court finds to be a binding agreement to buy the property therein described subject to all road and street easements. That a deed was given on April 4, 1969, recorded on April 9, 1969. The court also finds the matter was financed through the Home Savings and Loan of Salem, Ohio, who obtained an abstract on the same for mortgage purposes but at no time did they offer to show, nor was it shown, to the Gilbeys. That the abstract does show the easement, but at the time the Gilbeys entered into the purchase agreement, to-wit: March 15, 1969, a binding agreement, this matter was not of record. The court also finds that there were some stakes in the ground. Mr. Baird, state surveyor, states that said stakes of the easement were not placed before August, 1969, and on the temporary easement, June 29, 1970.
The court also finds from the evidence, that the Gilbeys were shown the property by Bruce Capel in the presence of the Coopers. That they asked how far the line ran and were shown the line where the road was then and assessed by Mr. Bruce Capel that the by-pass would not touch their land, without any...
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Foust v. Valleybrook Realty Co.
...have a duty to disclose any material facts which are not visible and nondisclosure is willful misrepresentation. Gilbey v. Cooper (1973), 37 Ohio Misc. 119, 310 N.E.2d 268 . Appellees were entitled to rely upon the representations of the realtor because of the fiduciary nature of the relati......
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