Klott v. Associates Real Estate

• Decision Date: 29 October 1974
• Citation: 41 Ohio App.2d 118,70 O.O.2d 129,322 N.E.2d 690
• Parties: , 70 O.O.2d 129 KLOTT et al., Appellants, v. ASSOCIATES REAL ESTATE et al., Appellees.
• Court: Ohio Court of Appeals

Page 118

41 Ohio App.2d 118

322 N.E.2d 690, 70 O.O.2d 129

KLOTT et al., Appellants, v. ASSOCIATES REAL ESTATE et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 29, 1974.

Syllabus by the Court

Where the fact that the water supply on real property is provided by a well instead of a community system is neither purposefully hidden from the purchaser of such property, nor latent and incapable of being observed, there is no duty on the part of the vendor to bring this to the purchaser's attention, and such failure does not constitute fraud and deceit.

Garber, Wilcox & Deshler, Dana A. Deshler, Jr., Columbus, for appellants.

Robins, Preston & Beckett Co., L. P. A., and John A. Sentz, Jr., Columbus, of counsel, for appellees.

HOLMES, Judge.

This matter involves the appeal of a judgment of the Municipal Court of Franklin County, sustaining a motion on behalf of the defendants, the appellees herein, to dismiss the complaint of the plaintiffs, the appellants, on the basis that such complaint failed to state a cause of action. The facts, as alleged by the plaintiffs, giving rise to the filing of this complaint, the motion to dismiss and the judgment from which this appeal emanated, in brief, are as follows:

The plaintiffs, Terry and Wanda Klott, desiring to purchase property in Grove City, Ohio, signed a purchase agreement with defendants William and Diana Stewart. Associates Real Estate was the brokerage firm which represented Mr. and Mrs. Stewart, the sellers of such property. The plaintiffs allege in their complaint that after the closing of the real estate transaction, they moved into the premises in question on March 31, 1973, and that on April 1, 1973, the plaintiffs 'became aware of the malfunctioning of the water well on the premises' and 'on or about April 2, 1973, the plaintiffs discovered that the water well had been in dire need of repair prior to the time they purchased the property.'

The plaintiffs then proceed to set forth the nub of their cause of action in the first claim for relief, within clause 9, as follows:

'Defendants, the Associates Real Estate and Reed McIntosh did not disclose to the Plaintiffs prior to or at the time of the real estate closing that the said premises had a water well instead of city water. The Plaintiffs assert that said Defendants were negligent in not discovering that the premises had a water well instead of being serviced by the city water and that they were negligent in not informing the Plaintiffs that there was a water well. If the Plaintiffs had known that the premises used well water instead of city water they would not have purchased the property.'

The second cause of action, or claim, adopted all of the allegations of the first claim, and further stated:

'(The Stewarts) failed in their duty to disclose to the plaintiffs prior to or at the time of the real estate closing that there was a water well on said premises and that the well was in need of repairs. Said Defendants knew of the existence of the water well and that it was in need of repairs.'

Further, in paragraph 3 of the 'Second Claim,' the plaintiffs allege as follows:

'Plaintiffs were unaware that the premises had a water well until after the real estate closing on March 7, 1973. The Plaintiffs would not have purchased the property had they known of the existence of the well and that it was not functioning properly. As a result of the fraudulent nondisclosure and concealment by the Defendants of the fact that there was a faulty water well, the Plaintiffs were damaged by the amounts they have expended on the repair of the well and the interest rate on the loan.'

The trial court first dismissed the claim against defendants Associates Real Estate and Reed McIntosh, and subsequently the trial court dismissed the action against the Stewarts. Only the matter relating to the second claim against the Stewarts has been appealed. Plaintiffs argue that such second claim states a valid claim upon which relief can be granted by the trial court.

Plaintiffs argue that the second claim of their complaint conforms to the requirements of Civ.R. 8(A) and (E) in that the averments made are a short and plain statement of the basic facts of the case and that the averments are simple, concise and direct. Furthermore, plaintiffs contend that the facts stated by the complaint are set out in enough particularity to conform to Civ.R. 9(B), and that the complaint stated sufficient facts to apprise the defendants as to what the claim for relief is in this case.

Further, the plaintiffs claim that such complaint sets forth all of the necessary elements to make out a case based upon fraud and deceit, and that 'as a matter of law that in an action for fraud, when one party has knowledge of a latent defect, such as a defective water well, he must disclose such information to the other party.' In support of such proposition, the plaintiffs cite Hadley v. Clinton County Importing Co. (1862), 13 Ohio St. 502, and Gilbey v. Cooper (1973), 37 Ohio Misc. 119, 310 N.E. 268.

At the outset, we must determine the extent of the duty of a vendor of real estate to a vendee where there is no other special relationship between the parties other than vendor-vendee. It is rather obvious that the vendor may not, in the process of such sale procedure, engage in an action or inaction constituting fraud or deceit. The elements set forth in 24 Ohio Jurisprudence 2d 635, Fraud and Deceit, Section 20, which constitute the basis of a charge of fraud and deceit are: actual or implied representations or concealment of a matter of fact which relates to the present or past, and...