Horejs v. Kitchin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Michael Horejs, et al., :

: Case No. 1:19-cv-855

Plaintiffs, :

: Judge Susan J. Dlott

v. :

: Order Granting Motion for Summary

David Kitchin, et al., : Judgment

:

Defendants. :

This matter is before the Court on Defendants’ Motion for Summary Judgment. (Doc.

47.) In this case, Plaintiffs Michael and Lauren Horejs allege that Defendants David and Nancy

Kitchin breached a contract and made fraudulent misrepresentations about mold and water

intrusion issues in connection with the sale of their residential property at 8695 Twilight Tear

Lane, Cincinnati, Ohio 45249 (“the Property”) to the Horejses. The Kitchins have moved for

summary judgment following discovery. Because no material facts are in dispute and the

Kitchins are entitled to judgment as a matter of law, the Court will GRANT summary judgment.

I. BACKGROUND

A. The Property Prior to Ownership by the Kitchins

Non-parties Fe and Lito Alino resided at the Property from 1988 until 2001. (Doc. 51 at

PageID 1500.) The Alinos hired a contractor to finish part of the basement of the house during

the 1989–1990 timeframe. (Id. at PageID 1501.) Fe Alino stated in her Affidavit dated February

23, 2002 that the Alinos did not experience or were not aware of “any problems in the house

associated with outside water intrusion at any level of the house; sewer backup issues; structural

and/or settling problems in the basement; and/or mold and mold odor problems in the basement.”

(Id.) She also stated that they did not “perform any work in the basement related to any of the

issues mentioned above, including removing basement walls, removing foil sheeting in the

basement, installing and/or applying leveling compound to the basement floor, or any other such

work.” (Id.) However, she clarified in a second Affidavit dated May 6, 2022 that she and her

husband “did not continuously observe the work being performed” by the contractors during the

basement finishing project, so she did not know “how the work was done.” (Doc. 61 at PageID

1712–1713.) She knew only that that “framing and drywall were installed over the concrete

basement walls” and that a “drop ceiling was also installed.” (Id. at PageID 1713.)

B. The Kitchins Own and Reside at the Property

The Kitchins purchased the Property in 2001 and lived there for approximately seventeen

years. (Doc. 47-1 at PageID 1424; Doc. 47-2 at PageID 1433.) The Kitchins asserted that they

had no knowledge “of water intrusion events in the basement” during the years they lived in the

home. (Doc. 47-1 at PageID 1425; Doc. 47-2 at PageID 1434.) They further asserted that they

did not “ever experience any mold or observe any mold anywhere in the home.” (Doc. 47-1 at

PageID 1425; Doc. 47-2 at PageID 1434.) Relatedly, they asserted that they did not “ever

experience a sewer backup or sewer related issues.” (Doc. 47-1 at PageID 1426; Doc. 47-2 at

PageID 1435.) Finally, in regard to the exterior basement walls, the Kitchins stated that they had

“absolutely no knowledge of any brick foil sheeting being removed or the lack thereof behind the

basement walls, nor did [they] ever repair or remove or replace any of the drywall in the

basement from the time [they] owned the residence to the day [they] moved out.” (Doc. 47-1 at

PageID 1426; Doc. 47-2 at PageID 1435.)

The Kitchins described doing limited work in the basement of the home. A home

inspector retained by the Kitchins when they purchased their home told them that the basement

floor was not level. (Doc. 47-1 at PageID 1424; Doc. 47-2 at PageID 1433.) They retained

contractors to level the floor so they could put up a wall and create a bedroom in the basement.

(Doc. 47-1 at PageID 1424; Doc. 47-2 at PageID 1433.) The Kitchins stated that the contractors

told them there were no structural problems with the basement slab. (Doc. 47-1 at PageID 1424;

Doc. 47-2 at PageID 1433.) Later, the Kitchins removed and replaced the carpeting in the

basement in 2007. They asserted that they saw no signs at that time of a defective slab nor of

mold or water intrusion. (Doc. 47-1 at PageID 1425; Doc. 47-2 at PageID 1434.)

In 2016, the Kitchins noticed brick mortar cracking in the front face of the house and in

the chimney area. (Doc. 47-1 at PageID 1425; Doc. 47-2 at PageID 1434.) They enlisted the

services of a structural engineer to inspect the home. (Doc. 47-1 at PageID 1425; Doc. 47-2 at

PageID 1434.) The structural engineer, Tracy Mitchell, PE, provided a written report and

recommended only minor repairs:

Based upon the size, location, and patterns of the cracks in the brick veneer I

recommend that the old mortar be completely removed in small sections and new

mortar tuck pointed to restore the bond between the bricks. After these repairs are

made if any new movement takes place it will be evident by similar cracks

between the bricks as seen now. If this happens then the installation of steel piers

below the foundations may be required.

(Doc. 34 at PageID 261.)

C. Sale of the Property to the Horejses and the Residential Property Disclosure Form

The Kitchins put the Property up for sale in 2018. In connection with the sale, the

Kitchins completed a State of Ohio Residential Property Disclosure Form on May 7, 2018. The

Kitchins denied “actual knowledge” of water problems in the house:

A) WATER SUPPLY: . . . Do you know of any previous or current leaks,

backups or other material problems with the water supply system or the quality of

the water? Yes No If Yes, please describe and indicate any repairs

completed (but not longer than the past 5 years): __________________

* * *

B) SEWER SYSTEM: . . . Do you know of any previous or current leaks,

backups or other material problems with the sewer system servicing the property?

Yes No If “Yes”, please describe and indicate any repairs completed (but not

longer than the past 5 years): __________________

* * *

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?

Yes No If “Yes”, please describe and indicate any repairs completed:

__________________

Do you know of any water or moisture related damage to floors, walls or ceilings

as a result of flooding; moisture seeping; moisture condensation; ice damming;

sewer overflow/backup; or leaking pipes, plumbing fixtures, or appliances?

Yes No If “Yes”, please describe and indicate any repairs completed:

__________________

Have you have had the property inspected for mold by a qualified inspector?

Yes No

* * *

Purchaser is advised that every home contains mold. Some people are more

sensitive than others. If concerned about this issue, purchaser is encouraged

to have a mold inspection by a qualified inspector.

* * *

K) DRAINAGE/EROSION: Do you know of any previous or current flooding,

drainage, settling or grading or erosion problems affecting the property? Yes

No

If “Yes”, please describe and indicate any repairs, modifications, or alternations to

the property or other attempts to control any problems (but not longer than the

past 5 years) : __________________

(Doc. 2 at PageID 70–72 (emphasis in the original).)

Conversely, the Kitchins acknowledged a prior issue with the foundation and a skylight

leak, which they addressed:

C) ROOF: Do you know of any previous or current leaks or other material

problems with the roof or rain gutters? Yes No If yes, please describe and

indicate any repairs completed (but not longer than the past 5 years): LEAK

AROUND THE HALL BATHROOM SKYLIGHT, REPAIRED BY TECTA

AMERICA ROOFING ON 2.26.18 – NO LEAKS SINCE.

* * *

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?

Yes No If “Yes”, please describe and indicate any repairs, alterations or

modifications to control the cause or effect of any problem identified (but not

longer than the past 5 years): NOTICED A CRACK IN THE CHIMNEY

BRICKS – HAD A STRUCTURAL ENGINEER (TRACY MITCHELL, PE) TO

ASSESS ON 10.5.16 – FOUNDATION WAS REPORTED FINE – HAD GARY

KING, MASTER BRICK MASON REPAIR CRACKS.

(Id. at PageID 70–71 (emphasis in the original).) The Kitchins both initialed and dated the first

four pages of the disclosure form and then signed the last page. (Id. at PageID 69–73.)

The Horejses entered into a Contract to Purchase the Property on July 7, 2018. (Id. at

PageID 56–63.) The Kitchins provided the Horejses with a copy of the Residential Property

Disclosure Form, which the Horejses signed to acknowledge receipt. (Id. at PageID 58, 73.) In

the Contract to Purchase, the Horejses waived the right to conduct inspections of the Property “to

determine the material physical condition of the house, land, improvements, fixtures, equipment,

any additional structures, and any hazardous conditions on the Real Estate[,]” other than the right

to “walk-through the property with in [sic] 14 days of contract acceptance.” (Id. at 59.) The

Contract to Purchase provided that the Kitchins would “NOT BE RESPONSIBLE FOR AN

UNKNOWN AND/OR DISCLOSED DEFECTS” and that the Horejses had been “ADVISED

BY REALTOR® TO CONDUCT INSPECTIONS OF THE REAL ESTATE.” (Id.

(emphasis in the original).) The Kitchins provided the Horejses with a copy of the 2016

structural engineer’s report prior to the completion of the sale. (Doc. 42 at PageID 1077.) The

Horejses made an “as is” offer to purchase—to accept the Property without modification or

repairs—based on the representations made by the Kitchins. (Doc. 37 at PageID 725.) The

Kitchins vacated the Property on September 11, 2018, the date the sale closed. (Doc. 35 at

PageID 330.)

The Horejses walked through the home four times prior to closing, with two of those

visits happening before they put in their offer. (Doc. 37 at PageID 720.) They walked through

each room of the home and the basement. Lauren Horejs testified that she noticed an odor in the

basement on the second and subsequent walkthroughs, but that Nancy Kitchin attributed the odor

to their family’s cat and dog, including specifically the cat litter box. (Id.) Lauren Horejs

described it as “an off-putting smell,” but she “couldn’t put [her] finger on exactly what it was.”

(Id.) She did not notice any water stains or signs of water intrusion or water leaks. (Id. at

PageID 720, 724.) Lauren Horejs’s father, Rick Arquilla, the former chief operating officer at

Roto-Rooter, also walked through the home before the Horejses made the offer to purchase the

Property. (Doc. 46 at PageID 1309.) He did not notice a smell nor see evidence of water stains

during his walk through. (Id. at PageID 1310.)

D. The Horejses Detect Mold and Water Intrusion in the House

The Horejses continued to notice an odor in the basement after they closed on the

purchase of the Property. (Doc. 37 at PageID 729.) They hired Stanley Steamer to clean the

carpet, but that did not eliminate the odor. (Id.) The odor increased when the home furnace was

turned on in late October or November 2018, and it spread throughout the house. (Id.) Rick

Arquilla then suggested that they hire Roto-Rooter to check for mold. (Id. at PageID 729–730;

Doc. 46 at PageID 1312.)

Jason Garrett, a field supervisor with Roto-Rooter, came to inspect the house for mold.

(Doc. 39 at PageID 862, 865.) He visibly detected the presence of mold on the baseboards in the

basement, on the back of drywall and stud framework, on the back of risers on the steps, on the

carpet tack strips, and on personal items in the storage room. (Id. at PageID 865–867.) He also

detected the presence of water in the basement playroom on the carpet and pad using a thermal

camera. (Id. at PageID 865.) He discovered that a humidifier attached to the HVAC unit was

turned off and that the filter was rotten and covered with mold. (Id. at PageID 870.) The

humidifier had been sealed off behind drywall in the utility room in the basement. (Id. at PageID

880.)

Garrett returned to the house several times. He concluded that there were two sources of

water in the basement of the Property. The first source was hydrostatic pressure on the

foundation slab of the house that caused cracks and allowed water seepage. (Id. at PageID 869.)

When Garrett and Anthony Jordan used a laser measure, they determined that there was a three-

inch dip in the foundation slab. (Id. at PageID 870.) The second source was a leaking drainpipe

or stack running vertically on the back wall of the kitchen. (Id. at PageID 869, 876.) The stack

leak had caused an eight square foot section of the kitchen floor to have cupped. (Id. at PageID

869.) Garrett acknowledged that he could not “speak for” the Kitchins as to whether they had

knowledge of the water intrusion issues and the mold in the house. (Id. at PageID 880.)

Steven Bostic, a forensic architect, noted other water intrusion problems about which he

believed the prior owners would have been aware. First, he determined that code-required

window and door sill flashings were not installed during the house construction. (Doc. 43 at

PageID 1106–1107, 1149.) He found that significant damage or rotting on the plywood under

the doors and windows after the basement had been deconstructed. (Id. at PageID 1149; Doc. 38

at PageID 755, 839.) Second, he learned from Roto-Rooter and saw evidence that foam

sheathing had been removed from the back exterior wall of the house. (Id. at PageID 1106,

1148.) Finally, he determined that the foam sheathing was accessed and removed from the

interior of the home, as opposed to being removed from the exterior, because there was no sign

that the brick masonry had been redone. (Id. at PageID 1106, 1148–1149.) He opined that the

most likely reason that foam sheathing would be removed is that it had become water saturated

and had to be taken out as part of a prior water or mold remediation project. (Id. at PageID 1106,

1148–1149.) He also noted that a leveling compound was used on the basement floor slab prior

to the installation of carpet. (Id. at PageID 1111, 1149.) He stated that the use of the leveling

compound would have added time and cost to the carpet installation, and it is something that the

house owner would have known about. (Id. at PageID 1111, 1149–1150.) Bostic testified at his

deposition that he was unable to determine the dates that defects would have been evident or

when the work he described would have been completed. (Id. at PageID 1104, 1114.) As such,

he did not know if the work he assumed had been done was completed during the time that the

Kitchins owned the house. (Id. at PageID 1114.)

James Graham, a structural engineer retained by the Horejses, also speculated that the

only reason to remove that sheathing was as part of a prior mold or water damage remediation

project. (Doc. 38 at PageID 756, 773.) He also stated that he did not know who removed the

sheathing. (Id. at PageID 756.)

Anthony Jordan, then a lead water mitigation technician for Roto-Rooter, participated in

the remediation process. He deconstructed the basement by removing the carpet, baseboards,

drywall, and walls. (Doc. 57 at PageID 1588, 1606–1607.) He found mold, primarily on the

back wall of the house, but also on the kitchen wall and floor behind and underneath the

cabinets. (Id.at PageID 1606–1607.) He then cleaned the areas containing the mold. (Id. at

PageID 1610–1611.) The remediation process took one month. (Id. at PageID 1612.)

Jordan signed and dated a March 27, 2019 statement in which he concluded that the

Kitchins had to have known about previous water damage to the house. He gave several bases

for his conclusion:

Based on my Professional opinion, the homeowners previous to the Horejs’ [sic]

knew about the water damages that took place in this home.

KITCHEN

The dining area and kitchen hard wood floors are all the same finish, the

hardwood has cupping & crowning along with separation; this was covered up

with sanding and refinish work. What makes me believe a water loss occurred, is

that only these areas were finished while the other areas were not finished.

MAIN SEWER STACK

The house is shifting and the main stack was cracked due to the stress on the

stack. This looked like it was cracked for quite sometime.

BATHROOM

Mold was on the base boards. When lifting the ceiling tile there was microbial

growth present.

BAR

Due to the house shifting, water was coming in from the deck, the wall was not

sealed properly, lack of maintenance on tuck point. I shot a laser of the floor and

it showed a 3 inch drop in the floor.

KIDS PLAY AREA

There was previous water damage in this area. There was evidence of new mortar

done recently at the tuck points. There was evidence of new carpet and pad on

the floor. In the walls, there was new framing, new insulation, and a vapor barrier

added.

(Doc. 57-1 at PageID 1654.)1

1 Jordan admitted at his deposition that he did not have “any actual knowledge whether a [floor] refinish was done”

on the kitchen floor. (Doc. 57 at PageID 1620.) He testified that he assumed the main stack was cracked because of

the house shifting, but he admitted that he is not structural engineer and that he believed there was probably other

possible causes for a crack in the stack. (Id. at PageID 1621.) He thought the crack in the stack would cause visible

Finally, Kevin Saylor, then a plumbing technician at Roto-Rooter, did a forensic

investigation of the sewer system at the Property on January 21, 2019 and February 15, 2019.

(Doc. 50-1 at PageID 1454, 1466, 1472.) The camera inserted into the sewer line showed that

the “system was flooded, bellied out, back pitched, [and] retaining water.” (Id. at PageID

1461.)2 The camera detected toilet paper, waste, and feces in the sewer pipe. (Id.) Saylor

concluded that the sewer system had experienced a prior backup because such accumulations do

not occur overnight and only occur with a backup. (Id. at PageID 1472–1475.) In fact, he

mistakenly assumed that a camera investigation had been requested because of a known sewer

back up. (Id. at PageID 1462.) He did not know when the backup would have occurred, nor did

he have other evidence that a back-up had occurred. (Id. at PageID 1460, 1462, 1475.) He also

concluded that the system did not have the “proper fall to . . . lead the waste sewage to the

exterior of the home toward the city sewer.” (Id. at PageID 1467.) He recommended that the

sewer system on the Property needed to be replaced. (Id.)

The first time that the Horejses personally observed water enter the house was in March

2019 during the mold remediation process in the basement. (Doc. 37 at PageID 724.) Lauren

Horejs stated that “when it was a strong rain, water would come in like a waterfall” in the

unfinished part of the basement that was also unfinished when the Kitchins owned the Property.

(Id.)

E. Procedural History

The Horejses initiated this suit against the Kitchins by filing their Complaint in Hamilton

County, Ohio Court of Common Pleas on September 5, 2019. (Doc. 2.) The Horejses asserted

evidence of water leaking out of the drop ceiling in the basement, but he saw no evidence of water in the drop

ceiling himself. (Id. at PageID 1622.)

2 A belly in a pipe is a section of pipe that has a dip or lower elevation than the ends of the pipe. (Doc. 46 at

PageID 1307.)

claims for (1) breach of contract, (2) fraudulent misrepresentation and concealment, (3) negligent

misrepresentation and/or concealment, and (4) unjust enrichment. The Kitchins removed the suit

to this District Court and then filed an Answer denying liability on all counts. (Docs. 1, 4.)

On January 18, 2022, Plaintiffs filed a First Amended Complaint against the Kitchins

adding Rick Arquilla as a Plaintiff, but they asserted the same four claims for relief. (Doc. 23.)3

The Kitchins filed a second Answer again denying liability on all counts. (Doc. 25.)

On August 31, 2022, the Kitchins filed the pending Motion for Summary Judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 47.) The Horejses and

Arquilla then filed their Memorandum in Response, to which the Kitchins filed a Reply. (Docs.

60, 62.)

II. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if “there is no genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to

show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 585–587 (1986); Provenzano v. LCI Holdings, Inc., 663

F.3d 806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with

affidavits or other proof or by exposing the lack of evidence on an issue for which the

nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322–324 (1986). In responding to a summary judgment motion, the nonmoving party may not

rest upon the pleadings but must “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

3 The Court granted leave to the Horejs to join Arquilla pursuant to Rule 20 of the Federal Rules of Civil Procedure

because discovery revealed that he paid for some of the remediation work performed at the Property. (Doc. 22.)

(1986).

A court’s task is not “to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the

light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also EEOC v. Ford Motor Co.,

782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists

when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir.

2014) (“A dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could

return a verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted).

“Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at

248. “The court need consider only the cited materials, but it may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3).

III. ANALYSIS

The Kitchins move for summary judgment on all claims without analyzing each claim

separately on the merits. Instead, the Kitchins assert broadly that, pursuant to the doctrine of

caveat emptor and the “as is” purchase of the Property by the Horejses, they cannot be liable on

any of the claims asserted against them absent a showing that they committed fraud. Plaintiffs

do not dispute that they must prove fraudulent misrepresentation or fraudulent concealment to

succeed on their claims. (Doc. 60 at PageID 1704–1706.)4

4 The Contract to Purchase did not contain a clause explicitly stating that the sale was an “as is” purchase.

However, as the Horejses implicitly acknowledge, the effect is the same given that the Horejses waived their right to

have the Property inspected and to make the contract contingent upon such inspection. (Doc. 2 at PageID 58–59.)

Their realtor described their offer as an “as is” offer. (Doc. 37 at PageID 725.) There can be no claims for negligent

misrepresentation or breach of contract in an “as is” purchase absent affirmative fraud. See Rodgers v. Sipes, No. 3-

11-19, 2012-Ohio-3070, ¶ 41, 2012 WL 2553921, at *7 (Ohio App. July 2, 2012) (stating that as “as is” clause can

bar a claim for breach of contract); Tutolo v. Young, No. 2010-L-118, 2012-Ohio-121, ¶ 52, 2012 WL 121081, at *9

The Supreme Court of Ohio explained as follows:

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.

Layman v. Binns, 35 Ohio St. 3d 176, 519 N.E.2d 642, 642 at syllabus (1988). Moreover,

“[w]hen a buyer contractually agrees to accept property ‘as is,’ the seller is relieved of any duty

to disclose the property’s latent conditions and only has the duty not to commit an affirmative

fraud.” Stackhouse v. Logangate Prop. Mgt., 172 Ohio App. 3d 65, 872 N.E.2d 1294, 1299

(2007); see also Kaye v. Buehrle, 8 Ohio App. 3d 381, 457 N.E.2d 373, 376 (1983) (“[W]hen a

buyer contractually agrees to accept property ‘as is,’ the seller is relieved of any duty to

disclose.”). “An ‘as is’ clause bars an action for ‘passive nondisclosure’ but does not shield the

seller from an ‘active’ fraud or commission (as opposed to a fraud of omission), i.e., a

misrepresentation or fraudulent concealment.” Hubbard Fam. Tr. v. TNT Land Holdings, LLC,

2014-Ohio-772, ¶ 20, 9 N.E.3d 411, 420 (Ohio App. 2014). An “as is” clause “is inapplicable if

the property disclosure form contains misrepresentations.” Id., 9 N.E.3d at 422.

The elements of fraud under Ohio law are:

1) a representation, or in a situation where there was a duty to disclose, a

concealment of fact; 2) which fact is material to the transaction; 3) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to

whether it is true or false that knowledge may be inferred; 4) with the intent of

misleading another into relying upon it; 5) justifiable reliance on the

misrepresentation; and 6) a resulting injury proximately caused by the reliance.

E-Poch Properties, LLC v. TRW Auto. U.S., LLC, 286 F. App’x 276, 281 (6th Cir. 2008) (citation

omitted). Plaintiffs “may present circumstantial evidence to show the required knowledge or

(Ohio App. Jan. 13, 2012) (same); Mynes v. Brooks, No. 08CA3211, 2009-Ohio-5017, ¶¶ 32–35, 2009 WL

3049401, at *6–7 (Ohio App. Sept. 14, 2009) (stating “as is” clause bars claim for fraudulent misrepresentation).

intent.” Seitz v. Harvey, No. 25867, 2015-Ohio-122, ¶ 33, 2015 WL 223856, at *7 (Ohio App.

Jan. 16, 2015).

Here, Plaintiffs point to the findings of the Roto-Rooter employees and other contractors

they retained to remediate the house to argue that the Kitchins must have known about mold and

water intrusion issues on their property. Their arguments ultimately, however, do not create a

genuine issue of material fact that the Kitchins actually knew about and misrepresented or

concealed defects in the home. The Court will start with the assertion that the Kitchins had to

have known about mold and water intrusion issues in the basement. The Kitchens denied on the

Residential Property Disclosure Form that they knew about any leaks, water accumulation,

excess moisture, or defects or damage related to water intrusion. (Doc. 2 at PageID 70.)

It is undisputed that the Roto-Rooter contractors found significant amounts of mold in the

basement several months after they purchased the Property. However, Plaintiffs have not

established that the Kitchins knew about the mold. Most of the mold found by Roto-Rooter

appears to latent, that is, hidden or concealed behind drywall, on the topside of ceiling tiles, and

on carpet tack strips. (Doc. 39 at PageID 865–867, 880.) There is no evidence the mold existed

when the Kitchins replaced the basement carpet in 2007. Nor is there evidence that they did any

remodeling which would have required them to remove or replace the drywall on the exterior

walls.

To the extent that the mold might have been visible on the baseboards when then

Kitchins owned the Property, the evidence is not sufficient to create a genuine dispute of fact that

the Kitchins knew it or took steps to conceal it. The Kitchins never tested for mold, David

Kitchin denied being aware of a moldy smell in the basement, and Nancy Kitchin denied

experiencing mold. (Doc. 34 at PageID 230; Doc. 35 at PageID 332.) Likewise, the Horejses

walked through the house four times before the closing, and Arquilla walked through the house

one time before the closing, but none of them testified to seeing the mold. When the Horejses

asked about an odor in the basement, Nancy Kitchin told them it was related to the cat’s litter

box. (Doc. 37 at PageID 720.) If the Horejses were concerned about the odor, the terms of the

Contract to Purchase clearly put the burden on them as the buyers “TO CONDUCT

INSPECTIONS” for issues “THAT ARE OF CONCERN TO BUYER.” (Doc. 2 at PageID

59 (emphasis in the original).) Moreover, the Residential Property Disclosure Form explicitly

stated that “every home contains mold” and that the “purchaser is encouraged to have a mold

inspection.” (Id. at PageID 71 (emphasis in the original).)

The analysis is similar for Plaintiffs’ argument that there was additional evidence of

water intrusion in the basement sufficient to prove that the Kitchins must have known about the

problem. To begin, the Horejses did not observe water actively enter into the basement until

March 2019 during a heavy rainfall, approximately one-half year after they contracted to

purchase the Property from the Kitchins. (Doc. 37 at PageID 724.) That fact alone is obviously

not sufficient to establish that water had previously entered the home during rain showers when

the Kitchins owned the Property, much less that the Kitchins knew about the instrusion. What

the Horejses offer instead is insufficient circumstantial evidence and speculation.

Jason Garrett of Roto-Rooter detected the presence of water in the basement playroom in

or around November 2018, but only using a thermal camera. (Doc. 39 at PageID 865.) Garrett

did not testify that he would have detected the water absent a camera. Garrett also discovered a

leaking crack in the plumbing stack that ran vertically from the kitchen to the basement bar, but

that crack was concealed behind drywall. Steve Bostic and James Graham, a forensic architect

and structural engineer, respectively, found signs of long-term water damage in areas that had

been concealed by drywall, including rotted wood and evidence that foam sheathing had been

removed from the back exterior wall of the house. (Doc. 38 at 755–756, 773; Doc. 43 at PageID

1148–1149.) They both opined that the most likely reason to have removed the sheathing would

have been because it was water saturated. (Doc. 38 at PageID 773; Doc. 43 at PageID 1106,

1148–1149.) Bostic candidly testified that he could not determine when the water damage

occurred nor when the sheathing was removed. (Id. at PageID 1104, 1114.)

Even if this evidence is sufficient to suggest that there was water intrusion into the house

prior to the time that the Horejses owned the Property, it does not establish that the Kitchins

knew about the damage. The rotting wood and evidence of removed sheathing was discovered

only when the drywall was removed. The Kitchins denied that they repaired or replaced drywall

on the exterior walls when they owned the Property, and their testimony was not refuted. (Doc.

34 at PageID 230; Doc. 35 at PageID 332.) Conversely, Fe Alino, the first homeowner, averred

that she and her husband hired contractors to finish the basement with framing, drywall, and drop

ceilings, and she explained that they did not “continuously observe” the work to see how it was

done. (Doc. 61 at PageID 1713.)5 This evidence does not create a sufficient basis for a

reasonable jury to conclude that the Kitchins—as opposed to the Alinos or the Horejses—

removed the sheathing or that the Kitchins knew about water intrusion into the basement.

Plaintiffs’ last argument concerns the sewer system. The Kitchens denied on the

Residential Property Disclosure Form that they knew about any leaks, backups, or material

problems with the sewer system. (Doc. 2 at PageID 70.) The Horejses point to evidence that

Kevin Saylor, the Roto-Rooter plumber, determined in early 2019 that the sewer system on the

Property was bellied out, retaining water, and full of waste and fecal matter. (Doc. 50-1 at

5 In any event, evidence suggesting that a contractor should have been aware of a defect and should have notified

the homeowner of the defect “is not probative of actual knowledge” on the part of the homeowner. Sietz, 2015-

Ohio-122, ¶ 45, 2015 WL 2223856, at *9.

PageID 1461.) This was several months after the Horejses had closed on the house in September

2018. (Doc. 35 at PageID 330.) Saylor believed there had been a prior backup of the sewer

system based on the amount of sewage in the pipe. (Id. at PageID 1472–1475.) Saylor admitted,

however, that he did not know when this sewage backup would have occurred. (Id. at PageID

1460, 1462, 1475.) He admitted that the condition of the sewer system could not have been

determined without the camera scope, in absence of a sewage backup. (Doc. 41 at PageID

1035.) The Horejses offer no physical evidence that sewage backed up into the home. In fact,

Fe Alino, the Kitchins, and the Horejses all deny that there was a sewage backup when they lived

on the Property. (Doc. 51 at PageID 1501; Doc. 34 at PageID 226, 230; Doc. 35 at PageID 335;

Doc. 36 at PageID 430.) As such, there is not sufficient evidence for a jury to conclude that the

Kitchens knew about and concealed or misrepresented the condition of the sewer system on the

Residential Property Disclosure Form.

In sum, Plaintiffs have not provided evidence of fraud sufficient to overcome the doctrine

of caveat emptor and the “as is” nature of the sale. The Kitchins disclosed to the Horejses prior

to the sale of the Property the discovery of a crack in the chimney bricks and provided the

Horejses with a copy of a structural engineer’s 2016 report on the issue. The Horejses agreed to

purchase the Property, despite knowledge of the prior chimney brick crack and of an odor in the

basement, based only on their own “walk-through the [P]roperty.” (Doc. 2 at PageID 59.) They

expressly waived the right to make the sale contingent upon a home inspection ignoring the

warnings in the Contract to Purchase and the Residential Property Disclosure Form to have

inspections conducted. (Id.) The forensic investigations conducted at the direction of Arquilla

and the Horejses in late 2018 and early 2019 revealed a host of mold and water intrusions

problems, but the evidence was not sufficient to establish when the problems first arose nor

prove that the Kitchins knew about the problems and misrepresented or concealed them.

Without such evidence, there are no genuine disputes of material fact, and Plaintiffs cannot

establish fraud as a matter of law.

IV. CONCLUSION

For the foregoing reasons, the Kitchins’ Motion for Summary Judgment (Doc. 47) is

GRANTED.

IT IS SO ORDERED.

BY THE COURT:

S/Susan J. Dlott

Susan J. Dlott

United States District Judge