Thackston v. Zembower

• Decision Date: 18 May 2023
• Docket Number: 21 MA 0112
• Citation: 2023 Ohio 1690
• Parties: CHARLES B. THACKSTON et al., Plaintiffs-Appellants, v. MICHAEL P. ZEMBOWER, JR., Defendant-Appellee.
• Court: Ohio Court of Appeals

1

2023-Ohio-1690

CHARLES B. THACKSTON et al., Plaintiffs-Appellants, v. MICHAEL P. ZEMBOWER, JR., Defendant-Appellee.

No. 21 MA 0112

Court of Appeals of Ohio, Seventh District, Mahoning

May 18, 2023

Civil Appeal from the Court of Common Pleas of Mahoning County Ohio Case No. 2020 CV 1493

Atty James E. Lanzo, for Plaintiffs-Appellants and

Atty Christopher A. Maruca, The Maruca Law Firm, LLC, for Defendant-Appellee.

BEFORE: Carol Ann Robb, David A. D'Apolito, Mark A. Hanni, Judges.

OPINION AND JUDGMENT ENTRY

Robb, J.

{¶1} Appellants, Charles B. Thackston and Samantha Thackston, appeal the trial court's decision granting summary judgment in favor of Appellee, Michael P. Zembower, Jr. Appellants argue the trial court erred by failing to consider unobjected to but noncompliant summary judgment evidence and that genuine issues of material fact remain. The trial court's decision is affirmed in part, and reversed in part, and remanded.

Statement of the Case

{¶2} In May of 2020, Appellants purchased a home from Appellee located in Poland Ohio. After moving in, Appellants allegedly experienced flooding in the basement, which was not disclosed on the residential property disclosure form.

{¶3} Appellants filed suit in September 2020. They claimed Appellee breached the residential purchase agreement and made misrepresentations in the residential property disclosure form. Appellants alleged the basement flooding led them to discover "serious deterioration in the foundation" which was also not disclosed. Appellants claimed the condition of the home was not in conformity with Appellee's statements and representations in the residential property disclosure form. They also alleged Appellee affirmatively concealed existing water damage and the condition of the foundation. They requested compensatory and punitive damages. (Complaint.)

{¶4} The purchase agreement is attached to Appellants' complaint. It indicates under section 11, "Residential Property Disclosure Form," the "Buyer has reviewed and signed copy, attached." The corresponding boxes are initialed by "ST" and "CT." Under section 14, titled "Inspections," the contract provides in part: "Buyer agrees to accept property in its 'AS IS' condition excepting that the Buyer shall have 0 calendar days after the date of written acceptance of the contract by both parties * * * to have an inspection * * *." Thereafter, the boxes are initialed by the buyers next to the words "Buyer declines inspection". (Complaint, Exhibit 1.)

{¶5} Exhibit 2, attached to Appellants' complaint, is a copy of the residential property disclosure form signed by Appellee on May 21, 2020 and Appellants on May 25, 2020. It contains no affirmative disclosures; each box is either marked "No" or "N/A" for not applicable. (Complaint, Exhibit 2.)

{¶6} The potentially applicable disclosures on Appellee's residential property disclosure form are section D and E which provide: "D) WATER INTRUSION: Do you know of any previous or current water leakage, water accumulation, excess moisture or other defects to the property, including but not limited to any area below grade, basement or crawl space?" (Emphasis sic.) The corresponding box is checked "No." The form then states: "If 'Yes', please describe and indicate any repairs completed * * *." The adjacent lines are blank. (Complaint, Exhibit 2.)

{¶7} The next disclosure question under Section D) WATER INTRUSION states: "Do you know of any water or moisture related damage to floors, walls or ceilings as a result of flooding, moisture seepage, moisture condensation; ice damming; sewer overflow/backup; or leaking pipes, plumbing fixtures, or appliances?" The corresponding box is checked "No." Immediately thereafter, the form provides: "If yes, please describe and indicate any repairs completed * * *." The lines after this query are blank. (Complaint, Exhibit 2.)

{¶8} Section E states:

E) STRUCTURAL COMPONENTS (FOUNDATION, BASEMENT/CRAWL SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any previous or current movement, shifting, deterioration, material cracks/settling (other than visible minor cracks or blemishes) or other material problems with the foundation, basement/crawl space, floors, or interior/exterior walls?

(Emphasis sic.) The corresponding box is marked "No." And the corresponding lines that advise the seller to "describe and indicate any repairs, alterations or modifications to control the cause or effect of any problem identified (but not longer than 5 years)" is blank. (Complaint, Exhibit 2.)

{¶9} The parties agreed to have the case decided by the magistrate pursuant to Civ.R. 53(A)(C)(2). (January 28, 2021 Entry.) After the exchange of discovery, Appellee moved for summary judgment in October of 2021. Appellee urged the court to find he was entitled to summary judgment because Appellants purchased the home as is. The only evidence offered in support was his affidavit, in which Appellee avers in part: "6. I never knowingly lied on the disclosure form or with any disclosures or statements made at any time in the process of the sale. [And] 7. I never attempted to conceal any history of water damage on the premises." (October 4, 2021 Summary Judgment Motion, Zembower Affidavit.)

{¶10} Appellants opposed summary judgment and submitted the affidavit of Appellant Samantha Thackston in support. It states in part: "4. If Defendant provided accurate statements regarding the history of water intrusion at the residence, my husband and I would have rescinded our previous agreement to purchase said property under R.C. 5302.30(K)(2)."

{¶11} Attached to Samantha's affidavit is what appears to be an estimate for repairs to the residence secured by Appellee dated before the home was sold to Appellants. This document seems to be an internal document from a waterproofing company. It states in part that the owner "reported water in basement on heavy rains." It lists Appellee's name and address as the owner. While the document appears to be signed, it is not notarized or authenticated. There is no corresponding affidavit or testimony by an individual with personal knowledge attesting to its contents or creation. (November 8, 2021, Response, Exhibit A.)

{¶12} The trial court subsequently granted summary judgment in Appellee's favor. The magistrate's decision explained in detail why it did not consider Plaintiff's exhibit A, the estimate purportedly secured by Appellee:

[T]he document itself appears to have been completed by an inspector and there is little, if any, legible reference to "Callow Basement Waterproof." This Exhibit "A" submitted by Plaintiff * * * appears to be inadmissible hearsay that the Magistrate will not consider * * *

To the extent that the Exhibit contains statements of the Defendant, himself, the same would be admissible as the admission of a party opponent pursuant to Evid.R. 801 (D)(2) which statements are not hearsay. However, neither the affidavit nor the Exhibit to which it refers bears any information, which would authenticate the document as the statement of the Defendant, and * * * the Affidavit of Samantha Thackston is unable to authenticate it as such. A qualified representative of "Callow Basement Waterproof" would likely be possessed of sufficient personal knowledge to be competent to authenticate this document.

(November 29, 2021 Magistrate's Decision.) After expressly holding it would not consider this exhibit, the magistrate found no genuine issues of material fact existed for trial and Appellee was entitled to judgment as a matter of law. The trial court entered judgment consistent with the magistrate's decision. Civ.R. 53(C)(2).

{¶13} Appellants raise one assignment of error on appeal.

Assignment of Error: Summary Judgment

{¶14} Appellants' sole assignment of error contends:

"The trial court erred in failing to consider the affidavit and attached documents of the Plaintiffs-Appellants as even if the same were hearsay it went unobjected to and should have been considered."

{¶15} Appellants' assignment of error consists of two arguments. First, they contend the trial court erred by not considering the waterproofing estimate attached to Samantha's affidavit because Appellee did not object. Second, Appellants argue because Appellee did not deny having knowledge of a prior water intrusion or failing to disclose his knowledge on the residential property disclosure form, summary judgment was not warranted because genuine issues of fact remain for trial. We agree in part.

{¶16} Appellate courts review decisions awarding summary judgment de novo. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 191, 699 N.E.2d 534 (8th Dist.1997). We review the trial court's decision independently and without deference, pursuant to the standards in Civ.R. 56(C). Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

{¶17} Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion adverse to the nonmoving party. Holliman v. Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). The initial burden is on the moving party to set forth specific facts demonstrating that no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 29-293, 662 N.E.2d 264 (1996). If the movant meets this burden, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial. Id.

{¶18} A "material fact" for...