Lillie Gates-Hewlett v. City of Cleveland
| Decision Date | 23 August 2001 |
| Docket Number | 01-LW-3466,78863 |
| Parties | LILLIE GATES-HEWLETT, Plaintiff-Appellant v. CITY OF CLEVELAND, ET AL., Defendants-Appellees |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas Case No. CV401600
For plaintiff-appellant: ROY M. KAUFMAN, ESQ., LEODIS HARRIS ESQ., 745 Leader Building, 526 Superior Avenue, N.E Cleveland, Ohio 44114-1401
For defendant-appellee City of Cleveland, et al. : DANIELLE L. PECENKA, ESQ., VALERIE DOVE PEARLMAN, ESQ., Assistant Directors of Law, City of Cleveland, City Hall - Room 106, 601 Lakeside Avenue, Cleveland, Ohio 44114
For defendant-appellee Friends of Shaker Square: CLARK D. RICE, ESQ., Koeth, Rice & Pelsozy Co., LPA, 1280 West Third Street, Cleveland, Ohio 44113
The appellant, Lillie Gates Hewlett, appeals the decision of the trial court granting summary judgment in favor of the appellees, Friends of Shaker Square, the City of Cleveland and its employee, David Ware. For the reasons set forth below, we affirm the decision of the trial court.
In 1995, the appellant purchased a home from the appellee Friends of Shaker Square (FOSS), a non-profit organization now known as Shaker Square Area Development Corp. As part of the purchase agreement, the appellant was to receive a grant for renovation work to restore the purchased property located at 2629 East 121stStreet, Cleveland, Ohio. The house had originally been purchased by FOSS at a HUD foreclosure sale for $22,000.00. FOSS then contracted with Gentry Brothers Construction to perform the rehab work on the home before the appellant would take possession.
As part of the rehab work, the appellee, City of Cleveland, issued FOSS a grant of $3,500.00 from the Community Development Department Division of Rehabilitation and Conservation forthe sole purpose of painting the exterior of the home.
The appellant alleges that the actions of the City of Cleveland and FOSS precluded her from being able to obtain the benefits of tax abatement. The allegations maintained that FOSS hired a contractor who failed to pull the required permits prior to the appellant taking possession of the home. The appellant further contends that the City's failure to police all aspects of the renovation, including whether or not the proper permits were pulled, kept her from receiving $750 a year in tax abatement.
Additionally,the appellant contends that the actions of Dave Ware, the City of Cleveland Painting Inspector, constituted fraudulent misrepresentation. Mr. Ware's presence at the home was due to the fact the City had funded the painting of the house; therefore, an inspector from the City was required to inspect the job performance. The appellant maintains that Mr. Ware held himself out as a full inspector and that she relied on his statements that the house was in appropriate condition.
Subsequent to the execution of the purchase agreement, the appellant inspected the property and completed a progress inspection report. After the appellant took possession of the home, she noticed several defects that were not noticeable earlier since the windows had been boarded up at the time. The appellant maintains that there are major defects in the home, including cracks in the walls and ceilings, electrical problems, a wet basement, and the presence of asbestos.
Appellant's first assignment of error states:
I. THE LOWER COURT ERRED WHEN IT GRANTED DEFENDANT FRIENDS OF SHAKER SQUARE'S MOTION FOR SUMMARY JUDGMENT.
This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704.
Civ.R. 56(C) concerns summary judgment and provides in part:
***
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Civ.R. 56(E) provides in pertinent part:
In reviewing a motion for summary judgment, the court must construe the evidence and all reasonable inferences in a light most favorable to the party opposing the motion. Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 517 N.E.2d 904; Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64, 375 N.E.2d 46. In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the court stated:
In appellant's first assignment of error, she contends that the trial court improperly granted FOSS's motion for summary judgment. Her allegations center around the failure of FOSS to properly pull the necessary work permits which caused the appellant to lose out on a ten year property tax abatement. The appellant further alleged that FOSS falsely signed the residential disclosure statement indicating that they were not aware of the presence of any asbestos in the home, nor of any water in the basement.
Initially, this court finds that the appellant's assignment as it discusses FOSS's failure to pull the necessary permits is not to be reviewed by this court. "Ohio law is clear that questions not raised and determined in the court below cannot be considered by a reviewing court." Dickman v. Dickman (October 17, 1985), Shelby App. No. 17-84-3, unreported, 1985 Ohio App. LEXIS 9103, at 3, citing Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207; Goldberg v. Indust. Comm. (1936), 131 Ohio St. 399; Republic Steel Corp. v. Board (1963), 175 Ohio St. 179, syllabus.
In the appellant's lower court complaint, there was no contention that FOSS failed to obtain the necessary permits and that the direct consequence of this failure resulted in the appellant losing ten years of tax abatement. The allegations regarding the failure to pull the necessary permits as stated in the complaint related solely to the contractors, Gentry Brothers, who were dismissed from the complaint by the trial court.
The only remaining allegation relates to FOSS's failure to disclose water problems in the basement. Since the purchase of the home was completed under an "as-is" contract, the rules of caveat emptor must apply. This court has discussed the issue of caveat emptor in Jenkins v. Kollar et al (April 27, 2000), Cuyahoga App. No. 76049, unreported, 2000 Ohio App. LEXIS 1851. In Jenkins, the court cited Layman v. Binns (1988), 35 Ohio St.3d 176, where the Ohio Supreme Court considered a claim of a purchaser that the failure to disclose a bowed wall constituted fraudulent concealment. In Layman, the court noted:
The doctrine of caveat emptor precludes recovery in an action by the purchaser for a structural defect in real estate where (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.***
Additionally, in Tipton v. Nuzum (1992, 84 Ohio App.3d 33, a case regarding alleged water seepage into the basement, the court found:
Once alerted to a possible defect, a purchaser may not simply sit back and then raise his lack of expertise when a problem arises. Aware of a possible problem, the buyer has a duty to either (1) make further inquiry of the owner, who is under a duty not to engage in...
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