Michael Horejs v. David Kitchin

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 16, 2023
• Docket: 22-4009
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0281n.06

No. 22-4009

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 16, 2023 DEBORAH S. HUNT, Clerk ) MICHAEL HOREJS; LAUREN HOREJS; RICK ) ARQUILLA, ) ON APPEAL FROM THE Plaintiffs-Appellants, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHIO ) DAVID KITCHIN; NANCY KITCHIN, ) OPINION ) Defendants-Appellees. )

Before: BOGGS, GIBBONS, and McKEAGUE, Circuit Judges.

BOGGS, Circuit Judge. In September 2018, David and Nancy Kitchin sold the home that

they had lived in for seventeen years to their friends, Michael and Lauren Horejs. Prior to the sale,

the Horejses personally inspected the home four times. Mrs. Horejs noticed an off-putting smell

in the basement, which Mrs. Kitchin attributed to her dog and cat. The Horejses did not otherwise

notice any issues with the home and waived their right to further inspection. More than three

months after the Horejses moved in, they turned on their furnace, and the smell permeated the

household. The Horejses also visually identified mold growing in the basement. After a costly

remediation process, the Horejses sued the Kitchins for breach of contract, fraud, unjust

enrichment, and negligent misrepresentation.

The district court granted summary judgment to the Kitchins. For the following reasons,

we affirm. No. 22-4009, Horejs, et al. v. Kitchin, et al.

I. BACKGROUND

A. Prior Ownership and Repair of the Property

From 1988 until 2001, Fe and Lito Alino owned and lived in the single-family, two-story

home located at 8695 Twilight Tear Lane in Cincinnati, Ohio. In 1989, the Alinos hired a

contractor to refinish the basement. Mrs. Alino did not observe the work, but was told that the

contractor installed (1) a drop ceiling and (2) framing and drywall over the concrete basement

walls. Mrs. Alino stated that this was the only construction work that the Alinos performed on the

home. She also testified that they never experienced any issues with the house associated with

water intrusion, sewer backup, structural deficiencies, or mold.

In 2001, the Alinos sold their property to David and Nancy Kitchin, who lived there for the

next seventeen years. During a pre-purchase inspection, the Kitchins’ home inspector noticed that

the basement floor was not level. Because the Kitchins wanted to construct a bedroom for their

daughter in the basement, they hired a contractor to level the flooring and assure them of the

structural integrity of the slab, which the contractor did. The Kitchins replaced the basement carpet

in 2007 and claim that there was no indication, at that time, of mold or water intrusion, or that the

slab was defective.

In 2016, the Kitchins noticed cracks in the brick mortar on the front face of their house and

in the chimney area. They enlisted a structural engineer to inspect the home. The engineer provided

a written report, which stated:

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.

A brick mason repaired the cracks.

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The Kitchins testified that during their residency they did not experience or know of any

issues related to “water intrusion events in the basement,” “sewer backup,” or “mold anywhere in

the home.” They also stated that they did not perform any maintenance work on the drywall in the

basement and that they were unaware of the lack, or removal, of brick foil sheeting behind the

basement walls.

B. The Horejses’ Offer and Purchase of the Property

In 2018, the Kitchins contracted to sell their property to the Horejses. Before closing, they

provided the Horejses with a completed copy of a State of Ohio Residential Property Disclosure

Form. On that form, the Kitchins denied any knowledge of leakage or of material problems

stemming from water intrusion, the water supply, or the sewer system. They also denied

knowledge of any water- or moisture-related damage or of drainage/erosion issues affecting the

property. The Kitchins, however, admitted that they did not have the property inspected for mold

by a qualified inspector. Two lines down from that admission, the form warned:

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.

The Kitchins did acknowledge a leak from the hall-bathroom skylight, which was repaired in

February 2018, and the mortar-crack issue, which was repaired in 2016. They also provided the

Horejses with a copy of the structural engineer’s 2016 report.

For their part, the Horejses visited the home four times before closing, including twice

before making an offer. They walked through every room of the house and the basement on each

occasion. During the second, third, and fourth walk-throughs, Mrs. Horejs noticed an “off-putting

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smell” in the basement.1 When she asked Mrs. Kitchin about it, Mrs. Kitchin attributed the odor

to her cat’s litter box and the fact that the cat and their dog lived in the basement. Mr. Horejs stated

that he “smelled something” only once. He credited Mrs. Kitchin’s explanation “because [the

Horejses had] a dog of [their] own” and he assumed that the smell was probably just the dog. Mrs.

Horejs did not see any sign of water intrusion or leakage. Her father, Rick Arquilla, also visited

the home before the Horejses made an offer. Arquilla, the former COO of the plumbing and water-

mitigation company Roto-Rooter, did not smell any off-putting odors and also did not see any sign

of water intrusion or leakage.

In July 2018, the Horejses signed and sent the Kitchins a Contract to Purchase the Property.

In the Contract, 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,” but reserved the right “to

walk-through the property with in [sic] 14 days of contract acceptance.” The Contract further stated

that:

“SELLER(S) . . . SHALL NOT BE RESPONSIBLE FOR ANY UNKNOWN AND/OR DISCLOSED DEFECTS IN THE REAL ESTATE. BUYER ACKNOWLEDGES THAT BUYER HAS BEEN ADVISED BY REALTOR® TO CONDUCT INSPECTIONS OF THE REAL ESTATE THAT ARE OF CONCERN TO BUYER AND HAS BEEN PROVIDED THE OPPORTUNITY TO MAKE THIS CONTRACT CONTINGENT UPON THE RESULTS OF SUCH INSPECTION[S].”

The Horejses believed that they made an “as-is offer . . . [and] agree[d] to purchase the

home . . . without any modifications or repairs.” They would later explain that they waived their

1 In his deposition, Arquilla stated that the Horejses did not smell anything until over three months later, when they first turned on the house’s furnace.

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right to an inspection because the Kitchins, who were trusted family friends, had told the Horejses

that the house “was well taken care of.”

In September 2018, the Horejses closed on the house and moved in.

C. Mold and Water-Intrusion Issues

But the smell in the basement persisted. The Horejses hired a carpet-cleaning service to no

avail. Summer turned to autumn. The Horejses turned on their furnace, and the foul odor spread

throughout the house. After animal control failed to locate the source, Arquilla suggested checking

for mold.

On January 4, 2019, Arquilla sent Jason Garrett, a field supervisor at Roto-Rooter, to

investigate the odor. Garrett inspected the basement and identified mold on various baseboards,

both sides of the drywall, the studs and framework behind the dry wall, the tack strips that held the

carpet in place, and personal belongings in the basement utility room. Using a thermal camera, he

also identified water in the basement carpet. Garrett informed the Horejses that there was

“significant mold throughout the basement” and advised them to move out of the house until his

team could remediate the issue.

Garrett returned to conduct follow-up investigations as to the source of the mold. He

identified two main causes: hydrostatic pressure entering through fault lines in the house’s

foundation and a leaking drain-pipe. Garrett further noticed stain differences on the wood floor

and, using a laser, discovered a three-inch dip in the basement slab. On a later visit, Garrett

removed the cover of a humidifier attached to the HVAC system and noted that the filter was rotted

through and covered in mold.

When asked if there was any evidence that the previous owners knew about the water-

intrusion and mold issues, Garrett responded that he “[could]n’t speak” to that.

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Anthony Jordan, a water-mitigation technician at Roto-Rooter, also participated in the

remediation process. He visually identified mold on the basement utility-room door and drop

ceiling. Jordan then removed portions of the basement and found mold under the carpet and behind

the baseboards, drywall, and back wall. He also discovered mold upstairs in the kitchen area,

underneath some of the wall cabinets. Jordan and his team began to clean the contaminated

portions of the kitchen and basement, a process that took about one month.

Unlike Garrett, Jordan opined that the Kitchins must have known about the water damage.

Jordan set out his findings as follows:

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 [sic].

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.

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Jordan, however, later testified that he did not know whether a refinish had been performed. He

also acknowledged that he is not a structural engineer and that there could have been other causes

for the house shifting other than a crack in the main stack. Jordan assumed that the previous owners

would have identified the crack due to the water damage to their drop ceiling or kitchen cabinets,

but admitted to seeing no such water damage.

Arquilla also hired Steven Bostwick, a forensic architect, to investigate the damage.

Bostwick identified other water-intrusion issues, at least some of which, he believed, prior owners

would have been aware of. First, he noted that water was entering the home because it had been

constructed without code-required sill pans under the window of the first-floor office and under

the patio/deck doors in the kitchen and living room. This resulted in significant damage to the

underlying plywood, which Bostwick was able to identify only after the basement had been

deconstructed. Because the defect had been part of the original construction, Bostwick guessed

that the “leakage [may have] started as early as in the first couple years after the construction was

complete.” Bostwick also identified the absence of code-required sill pans as the most likely source

of water in the basement wall.

Second, Bostwick observed that “the [basement] wall’s exterior [foam] sheathing had been

removed almost completely and not replaced.” Bostwick noted that such removal “could only

occur if the entirety of the drywall and insulation had been removed during some prior construction

activity.” He opined that the “most reasonable cause for the observed exterior sheathing’s removal

would be during a prior water intrusion/mold remediation as those events typically involve the

removal of affected/contaminated materials.” Bostwick concluded that the homeowners at the time

would have known that the sheathing had been removed, as the need to remove it “would have

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been reported to the homeowner during a remediation and or renovation” and the “removals would

also have typically been described in invoices.”

Third, Bostwick noted that a “leveling compound was installed prior to the carpet

installation as a means to level out settlement and cracking of the original floor slab.” He concluded

that because the leveling compound would have added time and cost to the carpet installation, the

prior homeowners “would have known or been made aware of the floor settlement and slab

cracking either by observation of the floor during carpet installation or by the contractor

performing the installation.”

Bostwick later acknowledged that he could not specify whether the speculated remediation

would have taken place when the Alinos or the Kitchins owned the house. He also noted that the

deterioration of the plywood would have been difficult to see “unless someone popped their head

up . . . above the ceiling where there were stains on the ceiling.”

James Graham, a structural engineer who worked alongside Bostwick, also concluded that

somebody likely removed the basement wall’s exterior foam sheathing during a previous mold-

remediation procedure. But like Bostwick, he also could not identify who had ordered the removal

of the sheathing. Graham also admitted that he did not know of any previous mold remediation

and that his theory was speculative––though he stated that, in his experience, “there’s no reason to

remove exterior sheathing” absent a mold or water-saturation issue.

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

investigation of the house’s sewer system. Using a camera, Saylor and a field supervisor observed

that the “system was flooded, bellied out, back pitched, [and] retaining water.” Saylor

recommended that the entire system be replaced. Based on the amount and location of sewage

debris, Saylor concluded that there must have been a previous backup. But he also admitted that

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he had no actual knowledge of a prior backup and could not pinpoint when the backup would have

occurred.

In her deposition testimony, Mrs. Horejs acknowledged that she and Mr. Horejs did not see

any evidence of water intrusion during the first three months living at the home. She also stated

that they did not see water entering the home until March 2019, during the remodeling. Arquilla

also stated that neither “the Horejses nor myself noticed anything” until the furnace was turned on

and “that’s when all hell broke loose.”

D. Procedural History

In September 2019, the Horejses sued the Kitchins in Ohio state court. They asserted claims

for (1) breach of contract; (2) fraudulent misrepresentation and concealment; (3) unjust

enrichment; and (4) negligent misrepresentation. The Kitchins removed the case to federal court

and, after nearly three years of discovery, moved for summary judgment.

The district court granted the Kitchins’ motion for summary judgment on November 10,

2022. The court first noted that neither party disputed that the Horejses’ offer to purchase the home

was made “as is.” And, while the purchase contract did not contain an express “as is” clause, the

Horejses expressly waived their right to an inspection and believed that they were purchasing the

home “as is.” The district court thus concluded that this was an “as is” purchase. It further noted

that, under Ohio law, an “as is” purchaser is precluded from obtaining relief for negligent

misrepresentation or breach of contract absent a demonstration of affirmative fraud. If the Horejses

could not establish affirmative fraud, caveat emptor would shield the Kitchins from liability for

structural defects that were discoverable upon reasonable inspection, and the “as is” nature of the

sale would relieve the Kitchins of any duty to disclose latent conditions.

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In their response opposing summary judgment, the Horejses provided findings and

testimony from contractors who had renovated the home to argue that the Kitchins must have

known about the mold and water-intrusion issues. But the district court concluded that this

evidence was “speculative” and insufficient to demonstrate “a genuine issue of material fact that

the Kitchins actually knew about and misrepresented or concealed defects in the home.” The court

emphasized that the Kitchins consistently denied knowledge of the issues and that the Horejses

did not observe the issues on multiple walk-throughs and not until living at the home for over three

months. Because “the evidence was not sufficient to establish when the problems first arose nor .

. . that the Kitchins knew about the problems and misrepresented or concealed them,” the district

court held that the Horejses could not establish fraud as a matter of law and granted summary

judgment to the Kitchins on all claims.

The Horejses timely appealed.

II. ANALYSIS

We have jurisdiction pursuant to 28 U.S.C. § 1332. This court reviews de novo a district

court’s grant of summary judgment. Safety Specialty Ins. Co. v. Genesee Cnty. Bd. of Comm’rs,

53 F.4th 1014, 1020 (6th Cir. 2022). Summary judgment is appropriate “where there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). We draw all reasonable factual inferences in the light most favorable to the

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

A federal court sitting in diversity applies the choice-of-law rules of the state in which it

sits. Miller v. State Farm Mut. Aut. Ins. Co., 87 F.3d 822, 824 (6th Cir. 1996). Under Ohio law,

courts apply different interest-analysis tests depending on whether the underlying claim is based

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in contract or tort. Id. at 824–25. Here, because the parties entered into the purchase contract in

Ohio and the alleged fraud occurred in Ohio, there is no dispute that Ohio law controls.

In Ohio, the doctrine of caveat emptor bars a purchaser’s recovery for a structural defect

in real estate where “(1) the defect [was] open to observation or discoverable on reasonable

inspection, (2) the purchaser [had] an unimpeded opportunity to examine the premises, and (3) the

vendor [did] not engage in fraud.” Layman v. Binns, 519 N.E.2d 642, 644 (Ohio 1988). Caveat

emptor does not preclude claims based on latent defects. See Stackhouse v. Logangate Prop.

Mgmt., 872 N.E.2d 1294, 1299 (Ohio. Ct. App. 2007). But “[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.” Ibid. Thus, while caveat

emptor and an “as is” clause operate to bar claims for “passive nondisclosure,” they do not “protect

a seller who positively misrepresents or conceals the complained of condition[s].” Hubbard Fam.

Trust v. TNT Land Holdings, LLC, 9 N.E.3d 411, 420 (Ohio Ct. App. 2014); Rodgers v. Sipes,

2012 WL 2553921, at *7 (Ohio Ct. App. July 2, 2012) (noting that “an ‘as is’ clause in a contract

can bar a breach of contract claim”).

The elements for a claim of fraudulent misrepresentation include: (1) an actual or implied

misrepresentation, (2) which is material to the transaction, (3) made with knowledge that the

statement is false, (4) with the intent to mislead another, (5) who relies on the misrepresentation,

and (6) with resulting injury. Southworth v. Weigand, 2002 WL 2027523, at *3 (Ohio Ct. App.

Sep. 5, 2002); Hubbard Family Trust, LLC, 9 N.E.3d at 421.

Barring exceptional circumstances, arguments that are not raised below are forfeited on

appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008).

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A. Caveat Emptor and the “As Is” Nature of the Purchase

The Horejses argue that the doctrine of caveat emptor does not bar their claims, because

the defects to the house were not discoverable upon reasonable inspection.

Reasonable minds could disagree about whether an inspection of the home would have

revealed the various defects discovered during the remediation process. Before the Horejses turned

on the furnace, the defects were invisible. That the Horejses did not discover the source of the odor

or evidence of water intrusion on any of their four pre-purchase visits––and not until after three

months of living at the home––also suggests that the defects were latent. To ascertain the source

and extent of the mold, the contractors were required to rip up the carpet and tear apart the

basement, actions that may not be reasonable for a pre-purchase home inspection. See Southworth

v. Weigand, 2002 WL 2027523, at *4 (Ohio Ct. App. Sep. 5, 2002) (noting that where “the

extensive damage [is] hidden under carpeting and wallpaper[,] [it] is not reasonable to expect a

home inspector or potential buyer to remove carpeting and wallpaper to ascertain if there is a

problem”). The sewer-system issues were also only discoverable upon the hiring of a plumbing

specialist and use of a camera. In sum, it is debatable whether a reasonable inspection would have

revealed these defects and, thus, whether caveat emptor applies to bar the Horejses’ non-fraud-

based claims.

Nevertheless, those claims would still be barred if the Horejses purchased the home “as

is.” See Stackhouse, 872 N.E.2d at 1299. The Horejses thus argue that the district court erroneously

found that the purchase contract was an “as is” contract, even though it did not contain an “as is”

clause.

The Horejses did not make this argument below. In fact, in their response to the Kitchins’

motion for summary judgment, they appear to state just the opposite:

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Despite the Defendants [sic] insistence that the “as is” clause in the real estate contract and the doctrine of caveat emptor – aka buyer beware – protects them from Plaintiffs’ claims, Defendants’ defenses fail because “both caveat emptor and the ‘as is’ clause of the purchase agreement are nullified by a fraudulent misrepresentation or fraudulent failure to disclose[.]”

In an email containing the purchase contract that the Horejses’ realtor sent to the Kitchins, the

realtor wrote: “Please keep in mind that this is an as-is offer. Mike and Lauren [Horejs] think the

Kitchins have taken very good care of their house and are willing to pass on any home inspections

and believe this is a great home.” In her deposition testimony, Lauren Horejs agreed that she and

her husband were making an “as is” offer. She understood that they were “agreeing to purchase

the home as it currently [was] without any modifications or repairs.” And, as discussed above, they

waived inspection of the property, despite being warned about the presence of mold in every home

and that “SELLER(S) . . . SHALL NOT BE RESPONSIBLE FOR ANY KNOWN AND/OR

UNDISCLOSED DEFECTS IN THE REAL ESTATE.” R. 2, PID 59 (emphasis in original).

Under these circumstances, whether or not there was an “as is” clause in the contract is

beside the point. The district court based its judgment on the arguments before it. The Horejses

never argued that this was not an “as is” contract: they maintained that it was. Having done so, the

Horejses cannot now claim the reverse on appeal. As a result, the Horejses have forfeited any

challenge to the district court’s grant of summary judgment to the Kitchins on the non-fraud-based

claims. Scottsdale, 513 F.3d at 552.

B. The Horejses’ Remaining Fraud Claim

Neither caveat emptor nor an “as is” clause precludes relief for fraudulent

misrepresentation or concealment. See Stackhouse, 872 N.E.2d at 1299. The Horejses claim that

the evidence that they have provided raises a genuine issue of material fact as to whether the

Kitchins knew about the various defects and misrepresented or concealed them.

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First, they point to the testimony of Garrett, who detected water in the basement carpet,

identified two sources of water intrusion in the basement, and noted a three-inch dip in the

basement slab. The Horejses also rely on Jordan’s observations that parts of the kitchen’s

hardwood floor had been refinished, suggesting prior water issues, that the drain stack was cracked,

and that water was entering the basement because the back wall had not been properly sealed. They

also cite Bostwick’s findings that the lack of sill pans around the doors contributed to water

intrusion and that the exterior sheathing along the back wall had been removed, suggesting a prior

water or mold remediation project. Based on this testimony, and the fact that the Horejses

experienced mold growth in the basement within four months of living at the home, the Horejses

argue that the Kitchins must have known.

We disagree. As discussed above, a reasonable inspection of the home would likely have

failed to reveal the various defects. The Horejses walked through the home four times prior to the

purchase and did not see any evidence of mold or water intrusion. And although the Horejses

smelled an off-putting odor––Arquilla did not––they credited Mrs. Kitchin’s statement that the

smell came from the dog and cat. Until they turned on the furnace, the Horejses lived in the home

for over three months without incident. And professional plumbers discovered the source and

extent of the mold, water-intrusion, and sewer-system issues only after taking apart the basement

and performing sophisticated camerawork.

The record indicates that the Kitchins, who lived in the house for seventeen years,

undertook repairs for structural defects of which they were aware, including leveling the basement

slab and repairing mortar cracks. For the latter, they received a structural engineer’s report that

recommended only minor repairs and listed none of the issues identified by the Roto-Rooter

employees. All of this information was provided to the Horejses prior to the sale. The Horejses

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have not produced evidence of any other repairs undertaken by the Kitchins that would indicate

knowledge of the latent defects. And the Kitchins have consistently denied any such knowledge.

The Ohio Residential Property Disclosure Form cautions that “every home contains

mold” and cautions any purchaser “concerned about this issue . . . to have a mold inspection

by a qualified inspector.” That is what the Horejses should have done. The district court did not

err in holding that there was no genuine issue of material fact as to the Kitchins’ actual knowledge

of the latent defects. On this record, they appear to have been just as hidden from the Kitchins as

they were from the Horejses.

III. CONCLUSION

Because the Horejses have failed to demonstrate a genuine issue of material fact as to

whether the Kitchins knew about the latent defects and sought to conceal them, we AFFIRM the

district court’s grant of summary judgment.

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