Pascoe v. Detke

• Court: Ohio Court of Appeals
• Decided: May 28, 2026
• Docket: 115577
• Status: Published

Opinion

[Cite as Pascoe v. Detke, 2026-Ohio-1971.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MOLLY PASCOE, ET AL., :

Plaintiffs-Appellants, : No. 115577 v. :

ELEANOR DETKE, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 28, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-989136

Appearances:

Ice Miller LLP, Michael B. Pascoe, Robert Port, and Ally Petrillo, for appellants.

Susan M. Gray; Thomas C. Loepp, Law Office, Co., LPA, and Thomas C. Loepp; and Anxhela Dalipi, for appellee Eleanor Detke.

Marshall Dennehey P.C., and Jillian L. Dinehart, for appellees Carolyn Bentley and Howard Hanna Real Estate. MARY J. BOYLE, J.:

This appeal involves a dispute arising out of a residential real estate

transaction between plaintiffs-appellants Michael Pascoe (“Michael”) and Molly

Pascoe (“Molly”) (collectively the “Pascoes”), and defendants-appellees, Eleanor

Detke (“Detke”), Carolyn Bentley (“Bentley”), and Howard Hanna Real Estate

(“Howard Hanna”). The Pascoes appeal the trial court’s decision granting Detke’s

and Bentley and Howard Hanna’s motions for summary judgment. The Pascoes

raise the following three assignments of error for review:

Assignment of Error I: The trial court erred as a matter of law in granting summary judgment in favor of [Detke] based on (i) the doctrine of caveat emptor and (ii) the “as-is” clause in the residential purchase agreement between [the Pascoes] and Detke to preempt [the Pascoes’] fraud claims for which there was substantial evidence to defeat summary judgment.

Assignment of Error II: The trial court erred as a matter of law in apply[ing] the doctrine of caveat emptor because of the existence of fraud and the issues complained of are not open and obvious.

Assignment of Error III: The trial court erred as a matter of law in finding that there was no evidence to support [the Pascoes’] claims for fraud, concealment, conspiracy, or negligence against Detke, [Bentley,] and [Howard Hanna].

Because the conditions that the Pascoes complain of were either open

and able to be discovered upon reasonable inspection or were otherwise not

actionable as a basis for a fraudulent-misrepresentation or inducement claim, we

affirm the trial court’s decision. I. Facts and Procedural History

On September 3, 2020, the Pascoes entered into an agreement

(“agreement”) with Detke to purchase a then 108-year-old home located on Lake

Avenue in Lakewood, Ohio (“property”) for $408,000. Bentley represented Detke

with the sale and is an independent contractor of Howard Hanna, the broker. The

Pascoes were not represented by a realtor. The property was first listed for sale on

February 13, 2020. Detke completed the Residential Property Disclosure Form

(“February 2020 Disclosure Form”) on February 14, 2020. The February 2020

Disclosure Form states, in pertinent part:

C) ROOF: Do you know of any previous or current leaks or other material problem with the roof or rain gutters? x Yes □ No

If “Yes”, please describe and indicate any repairs completed (but not longer than the past 5 years): Limb from neighbor[’s] tree (to west) fell on roof and needed repair. (2019)_________________________

D) WATER INTRUSION: . . . Do you know of any water or moisture related damage to floors, walls, or ceiling as a result of . . . leaking pipes[?] □ Yes x No

...

G) MECHANICAL SYSTEMS: Do you know of any previous or current problems or defects with the following existing mechanical systems? . . .

3) Central heating x Yes □ No

If the answer . . . is “Yes”, please describe and indicate any repairs to the mechanical system (but not longer than the past 5 years): 3rd floor units never been used in years being updated now______________ (Emphasis in original.) (February 2020 Disclosure Form, p. 2-4.) At the time this

Disclosure Form was completed, Detke indicated she was in the process of repairing

the third-floor heating units. Detke also indicated that the roof was repaired in 2019

because of damage from the neighbor’s tree.

In July 2020, which was prior to the sale of the property to the

Pascoes, Detke had a water leak. Detke hired Parkway Plumbing (“Parkway”) to

complete the repair, which was covered by Detke’s homeowner insurance. Prior to

entering into the agreement with Detke, the Pascoes were given a copy of a

subsequent disclosure form that Detke completed on August 24, 2020 (“August

2020 Disclosure form”. Relevant to this case, the August 2020 Disclosure Form

provides:

C) ROOF: Do you know of any previous or current leaks or other material problem with the roof or rain gutters? □ Yes x 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 water or moisture related damage to floors, walls, or ceiling as a result of . . . leaking pipes[?] x Yes □ No

If “Yes”, please describe and indicate any repairs completed: Leak was found in main pipe with a large portion of stack replaced and elbow off it.______________________________________________

G) MECHANICAL SYSTEMS: Do you know of any previous or current problems or defects with the following existing mechanical systems? . . . 3) Central heating □ Yes x No

If “Yes”, please describe and indicate any repairs completed (but not longer than the past 5 years):

_______________________________________________ _______________________________________________

(Emphasis in original.) (Aug. 2020 Disclosure Form, p. 2-4.) The leak Detke

referenced in paragraph D of the August 2020 Disclosure Form is the leak from July

2020. Detke did not reference the previous issues with the central heating or roof

from the February 2020 Disclosure Form on this subsequent form.

As part of the agreement between Detke and the Pascoes, the Pascoes

bought the property in its “‘AS IS’ PRESENT PHYSICAL CONDITION.” (Sept. 3,

2020 Agreement, p. 1.) The agreement also contained an “inspection contingency”

clause, which permitted the Pascoes to have the home inspected before the purchase

was completed. The Pascoes signed the August 2020 Disclosure Form and

acknowledged that “it is BUYER’S own duty to exercise reasonable care to inspect

and make diligent inquiry of the SELLER or BUYER’S inspectors regarding the

condition and systems of the property.” (Sept. 3, 2020 Agreement, p. 3.)

On September 15, 2020, the Pascoes had a home inspection

completed on the property. Michael did not attend the home inspection, and Molly

sat outside on the porch during the inspection. The inspection report stated that the

house was 108 years old. The inspector noted that the plumbing system had copper

piping for the water supply. The inspection was of the visible piping and did not note any leaks in the water supply piping, which was rated “satisfactory.” The

drain/waste piping was rated “fair” and the report noted that most of the piping was

in the walls or floors and was not visible. There was some older cast iron and copper

drain piping visible in the basement that required monitoring.

With regard to the heating system, the report noted that it was a

Dunkirk natural gas/hot water system estimated to be 10-15 years old with a design

life of 30-40 years. The report noted that the heating system was entirely

satisfactory. Additionally, the hot water heater was estimated to be over 25 years

old and required monitoring. As to the roof, the report states that the shingles are

“very worn” and at the end of “useful service life.” The inspector recommended a

roofing company review and quote the cost of replacement. After the inspection was

completed, Bentley and the Pascoes discussed the roof. The roof was replaced with

a complete tear off and replacement of shingles as part of the sale.

Sometime around January 2022, which was approximately 14

months after the Pascoes took possession of the property, the Pascoes experienced

a water leak. According to Michael, after he drained the bathtub on the second floor,

water leaked down into the first floor foyer. The Pascoes hired a plumber, who

determined that there were leaks in the main stack, which had to be replaced. The

stack is the pipe that runs from the basement to the third floor and carries away all

water from the home. During this repair, the Pascoes discovered that the central

heating system piping was improperly assembled and the installed zone valves were

not functioning, which they also repaired. In November 2023, the Pascoes filed a lawsuit against Detke,

asserting claims for fraudulent inducement, fraudulent misrepresentation,

negligent misrepresentation, and breach of contract.1 The Pascoes sought damages

for the cost of the repairs. The complaint was later amended in October 2024, and

included Bentley and Howard Hanna as defendants. The Pascoes brought the

following nine causes of action: Count One — fraudulent inducement against Detke;

Count Two — fraudulent misrepresentation against Detke; Count Three — negligent

misrepresentation against Detke; Count Four — breach of contract against Detke;

Count Five — civil conspiracy against Detke, Bentley, and Howard Hanna; Count Six

— breach of R.C. 4735.67(A) against Bentley and Howard Hanna; Count Seven —

fraud against Bentley and Howard Hanna; Count Eight — negligent

misrepresentation against Bentley and Howard Hanna; Count Nine — respondeat

superior against Howard Hanna.

In the amended complaint, the Pascoes alleged Detke falsely

represented that a large portion of the main stack was replaced. Acknowledging that

the word “large” is subjective, the Pascoes contend that of the entire stack, which

runs from the basement through the third floor, “only approximately three to four

feet of the stack had been replaced.” (Amended complaint, Oct. 16, 2024.)

According to the Pascoes, Detke also falsely represented that there was one leak on

a single occasion. Rather, they alleged that there were multiple leaks on three

1 We note that throughout the proceedings in the trial court and on appeal,

Michael, an attorney, was one of the attorneys representing himself and Molly. separate floors over a period of several days. The Pascoes claimed that while they

had the property inspected, the inspection report did not discover and could not

have discovered the material, latent defects with the stack.

As a result of the January 2022 water leak, the Pascoes alleged that

they had to undertake investigative demolition into the wall where the stack was

located. This investigation revealed water damage inside the walls. The

investigative demolition also revealed a crack in part of the stack that had been

caulked over with silicon, which the Pascoes contended demonstrated that Detke:

(1) was aware of a defect in the pipe; (2) had engaged in “slipshod repairs” in

violation of the relevant codes; and (3) had not disclosed the defect in the pipe.

According to the Pascoes, they engaged in further work and found numerous code

violations related to wiring and plumbing. Ultimately, the Pascoes replaced the

entire stack and drain lines. The Pascoes allege that the cost of the replacement and

attendant work was in excess of $12,000.

The Pascoes further alleged that during this repair work, they became

aware of an issue with the central heating system. Specifically, the central heating

system would improperly call for heat across the system when any one location that

was wired into the system was activated. According to the Pascoes, they were

required to install regulators into the heating system to address the improper wiring

and individual smart thermostats to address the issue for a cost in excess of $5,000

and were required to repipe the boiler and hot water heater at a cost in excess of $4,000. The Pascoes maintained that they were also required to replace the boiler

at only half of its expected life because of the improper piping and zone-valve issues.

The Pascoes additionally alleged that Detke failed to disclose the

fallen-branch issue with the roof on the August 2020 Disclosure Form even though

she disclosed it on the February 2020 Disclosure Form. The Pascoes claimed that

they relied upon and believed Detke’s representations in the August 2020 Disclosure

Form when purchasing the property. And as a result of Detke’s representations,

they have been damaged in an amount not less than $115,000.

With regard to Bentley, the Pascoes alleged that they discovered the

February 2020 Disclosure Form, which disclosed material defects that were not

listed on the disclosure form provided to them in August 2020. According to the

Pascoes, Bentley was aware of the February 2020 Disclosure Form, was aware of the

defects disclosed on that form that listed material defects in the central heating

system and the structural integrity of the roof of the property, and did not provide a

copy of that form to them at any time prior to the sale of the property. Specifically,

the Pascoes alleged that a February 14, 2020 text-exchange between Detke and

Bentley reveals that Detke stated to Bentley it was cold that day and “the heat was

not sufficient” for the house. (Amended complaint, Oct. 16, 2024.) Detke inquired

about rescheduling “the showings until Monday when it would be 40 degrees, and

the issue would be ‘less noticeable.’” (Amended complaint, Oct. 16, 2024.) “Bentley

responded that the rescheduling for Monday was fine as long as Sunday would also

be reasonably comfortable so there were two days of reasonably comfortable temperature, and the house could adjust.” (Amended complaint, Oct. 16, 2024.)

The Pascoes alleged that Bentley conspired with Detke to conceal the defects from

potential purchasers.

The Pascoes further alleged that they were aware of a prior failed sale

and when they asked Bentley about the cause of the failed sale, Bentley concealed

that a failed property inspection was the true cause of the failed sale and that the

leak in the stack was extensive. According to the Pascoes, Bentley replied that “the

husband was out of town and that after he saw the [p]roperty he did not find it

suitable and so he intentionally cratered the sale.” (Amended complaint, Oct. 16,

2024.) As an employee and agent of Howard Hanna, the Pascoes alleged that

Howard Hanna is liable for all of Bentley’s acts and omissions. Additionally, the

Pascoes alleged that in the furtherance of Detke’s fraud, Bentley and Howard Hanna

violated their statutory duties under R.C. 4735.67(A) to disclose any material defects

in the property.2 According to the Pascoes, Bentley was entitled to the full

commission of $18,125 for the sale because they did not have a real estate agent.

The Pascoes sought a recission of the agreement; full refund of all

amounts invested in improvement of the property, interest on mortgage loans,

property taxes, and all other recission damages they are entitled to under law, as

well as compensatory damages in excess of $25,000; noneconomic damages up to

the statutory threshold of $500,000; punitive damages against Detke for the lesser

2 R.C. 4735.67(A) governs a licensee’s duty to disclose to purchasers. of 10% of her net worth or the two times compensatory damages cap; punitive

damages against Bentley for the lesser of 10 percent of her net worth or the two times

compensatory damages cap; punitive damages against Howard Hanna for an

amount to be proven at trial; attorney fees, costs, and expenses; and disgorgement

of all profit.

The matter proceeded with extensive discovery, culminating with the

filings of respective motions for summary judgment by the Pascoes, Detke, and

Bentley and Howard Hanna.3 In September 2025, the trial court, considering all the

evidence and construing it in a light most favorable to the nonmoving party, found

that Detke and Bentley and Howard Hanna are entitled to judgment as a matter of

law and denied the Pascoes’ motion for partial summary judgment. In reaching its

decision, the court stated:

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 (1988). In general, the caveat emptor doctrine governs the obligation of sellers to disclose information in real estate transactions and precludes any reliance on certain misrepresentations made by a seller or seller’s agent concerning the condition of that property. Schmiedebusch v. Rako Realty, Inc., 2005-Ohio-4884, ¶ 19 (5th Dist.).

In Ohio, the seller has no duty to disclose latent defects if a purchase agreement states that the buyer purchases real property in its “as is” physical condition. Neiberding v. Barrant, 2021-Ohio-2593, ¶ 44 (8th

3 We note that in October 2024, Detke filed a third-party complaint against

Parkway for indemnification and contribution. Detke hired Parkway to fix the July 2020 leak before she sold the property to the Pascoes. Parkway filed its own motion for summary judgment, which the court denied as moot. Parkway is not a part of this appeal. Dist.), citing Eiland v. Coldwell Banker Hunter Realty, 122 Ohio App.3d. 446, 457, 702 N.E.2d 116(1997).

The purchase agreement in this matter contained an “as is” clause. [The Pascoes] agreed to purchase the property after having opportunities to inspect the property, having a home inspection completed, agreeing to a roof replacement, and negotiating the price of the property. The court finds that [the Pascoes] have failed to present evidence that [Detke, Bentley, and Howard Hanna] knew of and/or concealed any of the alleged defects. The court further finds no evidence of fraud, concealment, conspiracy, or negligence against any of the named defendants in this matter. As such, [Detke, Bentley, and Howard Hanna] are entitled to judgment as a matter of law on all of [the Pascoes]’ claims and summary judgment is proper under Civ.R. 56(C).

(Journal entry, Sept. 12, 2025.)

It is from this order that the Pascoes appeal, raising three

assignments of error for review.

II. Law and Analysis

Within their assigned errors, the Pascoes challenge the trial court’s

grant of defendants’ respective motions for summary judgment on the following

three bases: (1) the trial court erred by applying the “as is” clause because this clause

does not apply to fraud claims; (2) the trial court erred in its application of the

doctrine of caveat emptor because this doctrine also does not apply to fraud claims;

and (3) the trial court erred in finding there was “no evidence” to support the

Pascoes’ claims. We note that with the first two bases, the Pascoes only challenge

the trial court’s ruling on their fraudulent-inducement and fraudulent-

misrepresentation claims against Detke. And for their third basis, the Pascoes

challenge the trial court’s ruling on their breach-of-contract and civil-conspiracy claims against Detke, their fraud, civil-conspiracy, and R.C. 4735.67(A) claims

against Bentley, and their respondeat superior claims against Howard Hanna.

A. Summary Judgment Standard of Review

An appellate court reviews the grant or denial of summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). In a de novo

review, this court affords no deference to the trial court’s decision and

independently reviews the record to determine whether the denial of summary

judgment is appropriate. Hollins v. Shaffer, 2009-Ohio-2136, ¶ 12 (8th Dist.).

Summary judgment is appropriate if (1) no genuine issue of any

material fact remains; (2) the moving party is entitled to judgment as a matter of

law; and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and construing the evidence most strongly in favor of the nonmoving

party, that conclusion is adverse to the party against whom the motion for summary

judgment is made. Id., citing State ex rel. Cassels v. Dayton City School Dist. Bd. of

Edn., 69 Ohio St.3d 217 (1994).

The party moving for summary judgment bears the burden of

demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party must then point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. Trial courts should

award summary judgment only after resolving all doubts in favor of the nonmoving party and finding that “‘reasonable minds can reach only an adverse conclusion’”

against the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-

359 (1992), quoting Norris v. Ohio Std. Oil Co., 70 Ohio St.2d 1, 2 (1982).

B. Fraudulent Misrepresentation and Fraudulent Inducement

Here, the Pascoes claimed fraudulent misrepresentation and

fraudulent inducement against Detke. The elements of fraudulent

misrepresentation are:

“(1) a representation, or where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (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 on it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.” Cardi v. Gump (1997), 121 Ohio App.3d 16, 22, 698 N.E.2d 1018, citing Schlecht v. Helton (Jan. 16, 1997), 8th Dist. No. 70582, 1997 Ohio App. LEXIS 114.

Pedone v. DeMarchi, 2007-Ohio-6809, ¶ 28 (8th Dist.).

This court has stated that “[t]he elements of fraudulent inducement

are essentially the same as those for fraudulent misrepresentation, fraudulent

concealment, and fraudulent nondisclosure.” Id. at ¶ 29, citing Information Leasing

Corp. v. Chambers, 2003-Ohio-2670, ¶ 84 (1st Dist.) Therefore, the Pascoes’

fraudulent-inducement and fraudulent-misrepresentation claims as treated as one.

Cantlin v. Smythe Cramer Co., 2018-Ohio-4607, ¶ 37 (8th Dist.) (where this court

relied on Pedone and treated plaintiffs fraud and fraudulent inducement claims as

one). We note that “[a]n action for fraud may be grounded upon failure to

fully disclose facts of a material nature where there exists a duty to speak.” Layman,

35 Ohio St.3d 176, 178 (1988). “Buyers are protected by law against ‘being misled

by others into making unwise decisions which result in financial loss’ when sellers

fail to ‘fully disclose’ material facts.” Avila v. Hughes, 2021-Ohio-2463, ¶ 36 (12th

Dist.), quoting Miles v. McSwegin, 58 Ohio St.2d 97, 99-100 (1979). Furthermore,

“a party is under a duty to speak, and therefore liable for nondisclosure if the party

fails to exercise reasonable care to disclose a material fact which may justifiably

induce another party to act or refrain from acting, and the non-disclosing party

knows that the failure to disclose such information to the other party will render a

prior statement or representation untrue or misleading.” Miles at 100, citing 3

Restatement of the Law 2d, Torts, 119, § 551, Subsections (1 and 2); see also

Armbruster v. Mason, 1982 Ohio App. LEXIS 14819, *11-12 (5th Dist. July 20,

1982); Avila at ¶ 37; and Shannon v. Fischer, 2020-Ohio-5567, ¶ 17 (12th Dist.).

C. R.C. 5302.30

R.C. 5302.30 establishes a circumstance in which a seller of

residential real estate has a duty to speak. In Ashmus v. Coughlin, 2025-Ohio-2412,

the Ohio Supreme Court recently analyzed the disclosure requirement of

R.C. 5302.30. The Ashmus Court stated that Ohio’s residential property disclosure

“form is designed to allow sellers ‘to disclose material matters relating to the

physical condition of the property to be transferred.’” Id. at ¶ 15, quoting

R.C. 5302.30(D)(1). These include “the condition of the structure of the property, including the roof, foundation, walls, and floors,” and “any material defects in the

property that are within the actual knowledge of the transferor.”

R.C. 5302.30(D)(1). This court has stated that “material defects” are those that are

“dangerous to anyone occupying the property and that inhibited the occupant’s use

of the property.” Nieberding v. Barrante, 2021-Ohio-2593, ¶ 35 (8th Dist.).

The statute further requires that “[e]ach disclosure of an item of

information that is required to be made in the property disclosure form . . . and each

act that may be performed in making any disclosure of an item of information shall

be made or performed in good faith.” R.C. 5302.30(E)(1). R.C. 5302.30(A)(1)

defines “good faith” as “honesty in fact in a transaction involving the transfer of

residential real property.” If the seller fails to disclose a material fact on the form

with the intent to mislead the buyer, and the buyer relies on the form, the seller may

be liable for any resulting injury. Nieberding at ¶ 23, citing Pedone, 2007-Ohio-

6809, ¶ 31 (8th Dist.). But where the buyer “has had the opportunity to inspect the

property, he is charged with knowledge of the conditions that a reasonable

inspection would have disclosed.” Id., quoting Nunez v. J.L. Sims Co., Inc., 2003-

Ohio-3386, ¶ 17 (1st Dist.).

“Sellers of residential real property have no duty to inspect their

property or to otherwise acquire additional knowledge regarding defects on their

property.” Kess v. Khan, 2023-Ohio-2773, ¶ 31 (8th Dist.), citing Roberts v. McCoy,

2017-Ohio-1329, ¶ 17 (12th Dist.). “‘[T]he duty to conduct a full inspection falls on the purchasers[,] and the disclosure form does not function as a substitute for such

careful inspection.’” Nieberding at ¶ 23, quoting Roberts at ¶ 17.

The Ashmus Court further stated that while R.C. 5302.30 “modifies

the common-law duty of disclosure in certain respects,” this statute “does not create

an independent cause of action[.]” Id., 2025-Ohio-2412 at ¶ 17. For this reason, “a

buyer’s remedy for nondisclosure is limited to common-law claims for fraud.” Id.,

citing Majoy v. Hord, 2004-Ohio-2049, ¶ 17 (6th Dist.).

Historically, unless a purchase agreement contained an “as is” clause, sellers of real property were required to disclose latent defects, i.e., hidden defects, of which they were aware. See, e.g., Layman v. Binns, 35 Ohio St.3d 176, 178, 519 N.E.2d 642 (1988). But under the doctrine of caveat emptor, they were not required to disclose patent defects, that is, defects that would be readily observable through a reasonable inspection. Id. at 177-178.

Ashmus at ¶ 18. Thus, the “enactment of R.C. 5302.30 modified the seller’s duty by

requiring disclosure of not only known latent defects but also known patent defects”

within their actual knowledge. Id. at ¶ 19, citing R.C. 5302.30(D)(1); see also

Williams v. D&J House Doctors., LLC, 2025-Ohio-4716, ¶ 23 (3d Dist.).

Finally, “R.C. 5302.30(D)(1) provides that the disclosure form is ‘not

a warranty of any kind by the transferor,’ nor is it ‘a substitute for any inspections.’”

Id. Thus, “[t]he duty under the statute to conduct a full inspection falls upon the

buyer, not the seller.” Pedone, 2007-Ohio-6809, at ¶ 32 (8th Dist.), citing Clark v.

Allen, 2003-Ohio-4617 (12th Dist.). “[W]here the buyer ‘has had the opportunity to

inspect the property, he is charged with knowledge of the conditions that a

reasonable inspection would have disclosed.’” Nieberding, 2021-Ohio-2593, at ¶ 23 (8th Dist.), quoting Nunez, 2003-Ohio-3386, at ¶ 17 (1st Dist.). Here, the August

2020 Disclosure Form that the Pascoes completed specifically provides in

capitalized lettering:

THIS FORM IS NOT A WARRANTY OF ANY KIND BY THE OWNER OR BY ANY AGENT OR SUBAGENT REPRESENTING THE OWNER. THIS FORM IS NOT A SUBSTITUTE FOR ANY INSPECTIONS. POTENTIAL PURCHASERS ARE ENCOURAGED TO OBTAIN THEIR OWN PROFESSIONAL INSPECTION(S).

(Emphasis in original.) (August 2020 Disclosure Form.)

D. Caveat Emptor and the “As is” Clause

As stated above, the doctrine of caveat emptor limits the potential

liability of sellers of residential property. Under this doctrine, a purchaser is

precluded from recovering for a structural defect 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, 35 Ohio St.3d 176 (1988), syllabus, approving and following Traverse v.

Long, 165 Ohio St. 249 (1956). “‘A defect is observable or discoverable if an

ordinarily prudent person would discover it upon reasonable inspection.”’ Roberts,

2017-Ohio-1329 at ¶ 12 (12th Dist.), quoting Moravek v. Hornsby, 1997 Ohio App.

LEXIS 3032, *6 (12th Dist. July 14, 1997). As the Ashmus Court stated, “[U]nder

the doctrine of caveat emptor, a seller of residential property has a duty to disclose

latent (or hidden) defects but not patent (or readily discoverable) defects.” Id.,

2025-Ohio-2412, at ¶ 31. A latent defect has been defined as “‘[o]ne which could

not be discovered by reasonable or customary observation.’ Black’s Law Dictionary (6th Ed.1991) 611.” Lone Star Steakhouse Saloon of Ohio v. Quaranta, 2002-Ohio-

1540, ¶ 18 (7th Dist.). “The nature of the defect and the ability of the parties to

determine through a reasonable inspection that a defect exists are key to

determining whether or not the defect is latent.” Siebert v. Lalich, 2006-Ohio-6274,

¶ 34 (8th Dist.), citing Miles, 58 Ohio St.2d 97, 101 (1979).

Furthermore, the doctrine of caveat emptor “is designed to finalize

real estate transactions by the preventing disappointed real estate buyers from

litigating every imperfection existing in residential property.” Nieberding, 2021-

Ohio-2593, at ¶ 30 (8th Dist.), quoting Thaler v. Zovko, 2008-Ohio-6881, ¶ 31 (11th

Dist.). But “a seller may still be liable to a buyer if the seller fails to disclose known

latent conditions.” Morgan v. Cohen, 2019-Ohio-3662, ¶ 35 (8th Dist.).

In this case, the agreement provided that the property was being sold

in its “‘as is’ present physical condition,” subject to a general home inspection. When

a purchase agreement states that the property is being sold “as is,” the buyer “agrees

to make his or her own appraisal of the bargain and accept the risk that he or she

may be wrong.” McDonald v. JP Dev. Group, L.L.C., 2013-Ohio-3914, ¶ 15 (8th

Dist.), citing Kern v. Buehrer, 2012-Ohio-4057 (8th Dist.), citing Tipton v. Nuzum,

84 Ohio App.3d 33 (9th 1992); see also Nieberding, 2021-Ohio-2593, at ¶ 33 (8th

Dist.). “An ‘as is’ clause in a real estate purchase agreement bars suit for passive

non-disclosure, but does not protect a seller from action alleging positive

misrepresentation or concealment.” Pedone, 2007-Ohio-6809, at ¶ 34 (8th Dist.),

citing Vecchio v. Kehn, 1994 Ohio App. LEXIS 3622, *8-9 (8th Dist. Aug. 18, 1994). “However, neither the doctrine of caveat emptor nor the presence of

an ‘as is’ clause forecloses a buyer from recovery when the seller has perpetrated a

fraud.” Jones v. Gilbert, 2023-Ohio-754, ¶ 13 (3d Dist.), citing Buchanan v.

Improved Properties, 2014-Ohio-263, ¶ 14 (3d Dist.); Lapos Constr. Co. v. Leslie,

2006-Ohio-5812, ¶ 14 (9th Dist.); Donnelly v. Taylor, 2003-Ohio-729, ¶ 16 (9th

Dist.). The seller is not protected “from liability for ‘positive’ acts of fraud, i.e., “‘a

fraud of commission rather than omission,’” such as fraudulent misrepresentation

or fraudulent concealment, including fraudulent misrepresentations in [a

residential property disclosure form].” Morgan at ¶ 39, quoting Brown at ¶ 20,

quoting Majoy, 2004-Ohio-2049, ¶ 18 (6th Dist.).

E. No Latent Defects in the 108-Year Old Home

Keeping these legal principles in mind, we now turn to the Pascoes’

arguments. The crux of Pascoes’ fraud claims is the difference in information

between the February 2020 Disclosure Form and the August 2020 Disclosure Form.

The Pascoes acknowledge that the agreement contains an “as is” clause and the

application of caveat emptor. They contend, however, that neither caveat emptor or

the “as is” clause shield Detke from fraud because they established that a genuine

issue of material fact exists as to whether Detke knew about or concealed the

conditions at issue in this case. In support of their argument, they allege three

instances of affirmative misrepresentations by Detke on the August 2020 Disclosure

Form regarding the extent of the damage to the stack (plumbing), the failure to disclose the structural damage to the roof from 2019, and the issue with the third-

floor heat. We discuss the alleged defects in turn.

1. Third-Floor Heat

With regard to the heat, the Pascoes note that on the February 2020

Disclosure Form, Detke checked the “yes” box indicating a problem or defect in the

heating system. Detke explained, “3rd floor units never been used in years being

updated now[.]” (February 2020 Disclosure Form.) Whereas on the August 2020

Disclosure Form, Detke checked the “no” box, which the Pascoes contend is evidence

that Detke affirmatively misrepresented that there was no defect in the heating

system.

In support of their fraudulent misrepresentation and inducement

claims against Detke, the Pascoes rely on the February 2020 text exchange where

Detke stated to Bentley that the heat was “definitely not up to par” and “[s]hould I

tell them to come tomorrow or can it wait till Monday. It will be 40 and less

noticeable.” Bentley replied, “Monday is fine as long as it will be reasonably

comfortable Sunday.” The Pascoes argue that this text exchange is evidence that

Detke concealed or otherwise failed to disclose the problems in the subsequent

August 2020 Disclosure Form.

According to Detke, the third floor has two bedrooms that have “in-

wall units that provide heat[.]” (Detke depo., p. 19.) In addition, Detke did not

experience any overheating issues with the third floor because “[she did not] ever go

up there. At this point [her] children were out of the house. [She is] living in a five- bedroom house by [her]self.” (Detke depo., p. 32.) And although there was a text

exchange stating that the heat was “not up to par,” both Detke and Bentley explained

the context of the exchange. Bentley stated that texts occurred on the day she got

the February 2020 Disclosure Form from Detke and based on Detke’s statement in

this disclosure form that repairs were pending, Bentley believed that the heat issue

was only with the third-floor space heaters and that issue was repaired. At her

deposition, Bentley testified, “My understanding at the time was that we were

discussing the third floor unit, space heater . . . what I did not believe was part of the

central heating system to the home, and that that was in the process of being

repaired.” (Bentley depo., p. 99-100.) Their text exchange revealed that showings

continued throughout the week, regardless of the heat being “not up to par,” with an

open house and a broker’s open.

At Detke’s deposition, she testified that the text exchange with

Bentley was not a conspiracy to avoid scheduling showings because it was too cold

and “the heating system wasn’t up to par.” Detke explained that she and Bentley

“told those people that those items are being worked on, and when [the Pascoes]

purchased the house, the work was totally finished.” (Detke depo., p. 25-26.) When

asked if she would intentionally mislead buyers about issues with the heating system

in the house, Detke replied, “[n]o.” (Detke depo., p. 22.) According to Detke, if

something was wrong with the house, she would have definitely told the prospective

buyer and would have had it fixed before the buyer moved in. Detke acknowledged that she did not disclose that “the heat was not

up to par” on the August 2020 Disclosure Form, stating that she “was very laxed in

filling out all the little particulars” and “didn’t think” she “needed to.” (Detke depo,

p. 127-128.) Detke stated, “I’m bad for not doing that. That I do agree with.” (Detke

depo., p. 129.) She explained, “The reason I didn’t check it is because everything was

okay then, and I guess when I filled this out, you know, I . . . filled out what I thought

were the most important things, and I guess . . . current or previous problems, it

didn’t seem like a big previous problem since it was fixed.” (Detke, depo., p. 128-

129.)

We find that the Pascoes’ argument is unpersuasive because any issue

with the third-floor heat was an open-and-observable condition. Even if Detke and

Bentley knew the heat was not working, there was no evidence that the Pascoes’

inspector was prevented from inspecting the heat and therefore the defect was open

or discoverable upon reasonable inspection. Indeed, it is undisputed that the

Pascoes had the home inspected by an inspector of their choosing and that the

inspector had an unimpeded opportunity to examine the premises, including the

third-floor. The inspection report indicated that the heating system was entirely

satisfactory after calling for heat. The report noted that it was a Dunkirk natural

gas/hot water system estimated to be 10-15 years old with a design life of 30-40

years. When Michael was asked at his deposition how he knew that the third-floor

heaters were not working at the time they purchased the home, Michael replied, “I

don’t.” (Michael depo., p. 226.) Additionally, the record is clear that the Pascoes lived in the house for approximately 14 months without incident. The Pascoes lived

in the house through four seasons without an issue with the heat. It was not until

after the demolition work started for the water leak from the bathroom that the

Pascoes discovered the issue with the heat on the third floor.

The Pascoes opposed Detke’s summary judgment, relying on

Michael’s declarations that this was not an open-or-obvious defect that could be

discovered merely by turning on the heat when they purchased the home in

September and the defect in the heating system was because of improper piping and

zone valve malfunctions. Michael’s declarations, however, are insufficient to create

a genuine issue of material fact. We agree with Detke in that there is no admissible

evidence of “improper piping and zone valve malfunctions” because the declarations

were based on hearsay, were not made on personal knowledge, and are not

permitted under Civ.R. 56(E). In further support of their argument, the Pascoes also

contend that Detke’s previous contractor informed her in 2010 that the zone valves

were not functioning properly at that time and needed to be repaired, but Detke

never did. We likewise cannot consider this evidence because this is hearsay and

was not properly authenticated by the Pascoes.

Because it is undisputed that the Pascoes and their inspector had the

unimpeded opportunity to inspect the heat, including on the third floor, any alleged

defect with the heat would have been open and discoverable. It is also undisputed

that the Pascoes lived in the home for 14 months, including the winter months in

2020 and 2021, before any alleged issue with the heat was discovered in January 2022. There is no evidence establishing that the alleged issue with the heat from ten

years prior was latent or could not be found in a reasonably diligent inspection.

Furthermore, the Pascoes cannot not prove fraud in these circumstances because

there is no evidence in the record suggesting that Detke was aware of the alleged

“malfunctioning zone valves” or that her omission of the third-floor heat not being

“up to par” on the August 2020 Disclosure Form was made with disregard or

recklessness as to its truth or falsity. Therefore, caveat emptor bars the Pascoes’

fraud claims regarding the third-floor heat.

2. Roof

Second, the Pascoes contend Detke made an affirmative

misrepresentation regarding the condition of the roof. On the February 2020

Disclosure Form, Detke indicated there was a problem with the roof, explaining that

a “[l]imb from neighbor[’s] tree (to west) fell on roof and needed repair. (2019)[.]”

But on the August 2020 Disclosure Form, Detke checked the “no” box. According

to Michael, there was leak in the bedroom where the branch fell on the roof, which

was not discovered by the home inspection.

Detke testified that in 2019, the neighbor’s “tree limb fell on the roof

above the bathroom upstairs.” (Detke depo., p. 173.) Detke disclosed this on the

February 2020 Disclosure Form and acknowledged that she omitted the 2019 roof

damage on the August 2020 Disclosure Form. According to Detke, she “forgot to

bring some things over” from the February form to the August Form. (Detke depo.,

p. 222.) Here, the undisputed facts demonstrate that the Pascoes’ home

inspector stated that the shingles were “very worn” and at the end of “useful service

life.” The inspector recommended a roofing company review and quote the cost of

replacement. The report further noted that “[a]ny roof defect can result in

leakage[.]” (Inspection report, p. 6.) Ultimately, Detke replaced the roof with a

complete tear off and replacement of shingles as part of the sale. (Michael’s depo.

p. 211.) Additionally, according to the Pascoes, they first noticed the leak sometime

around March 2024, which was more than three years after they purchased the

home. Michael testified that the only reason he believed that there was structural

damage to the roof was because “roofs and ceilings that don’t have a problem with

them don’t leak.” (Michael’s depo., p. 217.) When asked if it the problem could be

from the shingles, Michael replied, “I guess. I don’t know. They are brand new.

There’s a warranty.” (Michael’s depo., p. 217-218.) He further agreed that

construction defects do happen. Michael submitted a warranty claim for the roof

but he had not heard anything from them for “at least a year” and only followed up

with the company once. (Michael depo., p. 218.)

While Detke knew about the 2019 roof damage and omitted it from

the August 2020 Disclosure Form, there was no evidence that the inspector was

prevented from inspecting the roof and thus the defect was open or discoverable

upon reasonable inspection. At the time of inspection, no leaks were observed, but

the inspector discovered an issue with the age of the roof and condition of the

shingles. As part of the negotiations to finalize, Detke installed new roof installed prior to the Pascoes moving into the home. Because the Pascoes were alerted of the

roof’s condition and a tear off and replacement was completed before they moved

into the home, their claim in this regard is barred by caveat emptor. The Pascoes

cannot not prove fraud in these circumstances because they cannot claim to have

justifiably relied on the August 2020 Disclosure Form when they were actually

aware of the roof’s condition. Other than assumptions, the Pascoes have failed to

demonstrate that the March 2024 leak in the bedroom was associated with the 2019

roof damage Detke disclosed in February 2020, which was prior to the installation

of the new roof.

3. The Stack

Lastly, the Pascoes contend Detke only partially disclosed the extent

of the water leak on the August 2020 Disclosure Form. Relying on an invoice by the

plumbing company Detke hired to repair the leak, they contend that there were three

leaks relating to the main stack on three different floors, not just the replacement of

a large portion of the stack as Detke disclosed. The plumbing company’s invoice

indicated that the lead boot under the second-floor toilet was rotted out and was

repaired, the third-floor toilet was leaking at the flange and was repaired, and they

repaired a four-inch “crack” in the main stack.

In this case, the Pascoes first noticed a water leak in January 2022,

which was over 14 months after they purchased the home. According to Michael,

after he drained the bathtub on the second floor, water leaked down into the first-

floor foyer. Michael contacted his insurance agent, plumber Ken Sapp (“Sapp”), and general contractor to investigate in assess the issue. Sapp testified that he has done

plumbing work for Michael for a number of years. When he received a call from

Michael, it was about water damage and a bad smell in the home. Sapp stated that

sewer gas smells were not unusual from stacks in 100 year old houses and

determined that the smell was sewer gas emanating from cracks in the stack. He

recommended replacing the entire stack. Demolition work had to be completed in

order to expose the stack. Once the stack was exposed, he noticed that there were

cracks in the stack and part of the stack had been repaired with caulk, but he could

not tell when that repair occurred or how long the stack had been cracked. He

further testified regarding the July 2020 plumbing work by Detke’s plumber, stating

that he did not observe any issues with that work or any leaks from the area of those

repairs.

Detke testified that she had a leak in a storage room that she turned

into a wine cellar in the basement in July 2020. She was still under contract with

the previous potential buyers at this time. She described it as “water coming down

the wall[.]” (Detke depo., p. 51.) She claimed the leak on her insurance and hired

Parkway to complete the repairs. When asked what was her understanding of how

much of the stack was replaced, Detke responded, “A large portion in the bathroom

from the floor to the ceiling was open, so to me, that was a large area, and that’s the

amount that was replaced in there.” (Detke depo. p. 136.) According to Detke, a

new flange and elbow were installed and tied back into main stack. Detke did not

remember the plumber telling her to leave the walls open for several weeks to make sure the repair worked, but she did leave the area for a few weeks because that was

“how long it took for people come out and do it.” (Detke depo., p. 154.) As to the

other leaks on the invoice, Detke did not “remember that there were three separate

incidents. [She] just remember[ed the plumber] was coming and going and it was

getting done[.]” (Detke depo., p. 192.) Detke was not aware of any silicon or caulk

repairs completed on the stack.

Here, there is no dispute that the house was over 100 years old, at the

time of purchase, and contained the kind of plumbing that one would expect to see

in a home of its age. It is also undisputed that the age and condition of the stack had

been disclosed in the home inspection. The Pascoes’ inspector warned them that

there was some older cast iron and copper drain piping visible in the basement that

required monitoring. Even Michael acknowledged that “stacks are a significant

issue[ ] in houses that are older than 100 years” stating, “I think that that is a true

statement[.]” (Michael depo., p. 246.) After reading the August 2020 Disclosure

Form and the inspection report, Michael did not ask Detke any questions about the

repair, despite understanding that at 100 years old, the stack was “near the end” of

its useful life. (Michael depo., p. 221.) Furthermore, there is no evidence that

Detke’s July 2020 repairs to the stack were unsuccessful or the source of the alleged

leak. Nor is there any evidence that Detke hid the extent of the repair from the

Pascoes. The Pascoes complain about a leak that occurred 14 months after they

moved into the home. This was not a latent defect. Rather, it was discovered upon

reasonable inspection when the inspector alerted the Pascoes to monitor the stack, which was near the end of its useful life. Caveat emptor bars the Pascoes’ claim with

respect to the stack. The Pascoes’ fraud claims fail because there is no evidence

suggesting that Detke’s disclosure regarding the stack was false or made with

disregard or recklessness as to its truth or falsity.

Under these facts, we find that Detke met her burden of

demonstrating that no material issues of fact exist for trial. We agree with the trial

court in that the doctrine of caveat emptor precludes recovery. The alleged defects

with the roof, heat, and stack were either open and able to be discovered upon

reasonable inspection or were otherwise not actionable as a basis for their fraud

claims. The home inspection report actually alerted the Pascoes to monitor the stack

and obtain a quote on a roof replacement. Additionally, we agree with the trial court

in that the “as is” clause bars recovery. The Pascoes agreed to purchase the property

after having the opportunity to personally inspect the property, having a home

inspection completed, agreeing to a roof replacement, and negotiating the price of

the property.

As the nonmoving party, the Pascoes failed to present evidence

demonstrating the existence of a genuine issue of material fact. There is no evidence

that the alleged defects were latent, Detke knew of these latent defects, and

concealed them with such utter disregard and recklessness as to whether it is true

or false, or that they justifiably relied on Detke’s representations. Therefore, we find

that Detke is entitled to judgment as a matter of law on the Pascoes’ fraud claims, and even when construing the evidence most strongly in favor of the Pascoes,

reasonable minds can come to but one conclusion in favor of Detke.

The first and second assignments of error are overruled.

F. No Evidence to Support Breach of Contract, R.C. 4735.67(A), Civil Conspiracy, Fraud, and Respondeat Superior Claims

Within their third basis, the Pascoes argue that the trial court erred

in granting summary judgment because they provided sufficient evidence to raise

questions of material fact on the following claims: breach of contract against Detke,

civil conspiracy against Detke and Bentley, R.C. 4735.67(A) violations and fraud

against Bentley, and respondeat superior against Howard Hanna. We discuss each

claim in turn

1. Breach of Contract

We note that while the Pascoes raise error with the trial court’s grant

of summary judgment on breach-of-contract claim, the Pascoes fail to cite to any

authority in support of their contention. App.R. 16(A)(7) requires an appellant to

include within his brief “[a]n argument containing the contentions of the appellant

with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of

the record on which appellant relies.” And under App.R. 12(A)(2), an appellate court

may decline to address an assignment of error if an appellant fails to cite any legal

authority to support his argument. Because the appellant, rather than the appellate

court, bears the burden to construct the necessary legal arguments that support the designated assignments of error, we decline to address this argument. Walsh v.

Walsh, 2023-Ohio-1675, ¶ 10, citing Doe v. Cuyahoga Cty. Community College,

2022-Ohio-527, ¶ 26 (8th Dist.), citing Taylor-Stephens v. Rite Aid of Ohio, 2018-

Ohio-4714, ¶ 121 (8th Dist.).

2. R.C. 4735.67(A)

Next, the Pascoes argue the court erred in granting summary

judgment on their R.C. 4735.67(A) claim against Bentley. The Pascoes contend that

Bentley knew the heat was not working properly and thus violated her statutory

obligation not disclosing this to them. R.C. 4735.67(A) provides:

A licensee shall disclose to any purchaser all material facts of which the licensee has actual knowledge pertaining to the physical condition of the property that the purchaser would not discover by a reasonably diligent inspection, including material defects in the property, environmental contamination, and information that any statute or rule requires be disclosed. For purposes of this division, actual knowledge of such material facts shall be inferred to the licensee if the licensee acts with reckless disregard for the truth.

In conjunction with subsection (A), R.C. 4735.67(B) provides:

A licensee is not required to discover latent defects in the property or to advise on matters outside of the scope of the knowledge required for real estate licensure, or to verify the accuracy or completeness of statements made by the seller, unless the licensee is aware of information that should reasonably cause the licensee to question the accuracy or completeness of such statements.

Thus, to prevail on this claim, the Pascoes must prove that the alleged

heating issue was material, Bentley had actual knowledge of the heating issue, and

that the issue could not be discovered by a reasonably diligent inspection. We note

that under R.C. 4735.67(B), Bentley was not required to verify the accuracy of Detke’s statements, unless she was aware of information causing Bentley to question

the accuracy of such statements.

Here, the only evidence that Bentley was aware that there was a

heating issue in the home was from Bentley’s text exchange with Detke, who stated

that the heat was not “up to par” and come back when it would be 40 degrees paired

with the February 2020 Disclosure Form that referenced third-floor units as not

having been used in years with repairs pending. However, based on Detke’s

statement in the February 2020 Disclosure Form that repairs were pending, Bentley

believed that the heat issue was only with the third-floor space heaters and that the

issue was repaired. Bentley testified, “My understanding at the time was that we

were discussing the third floor unit, space heater . . . what I did not believe was part

of the central heating system to the home, and that that was in the process of being

repaired.” (Bentley depo., p. 99-100.) Bentley was “operating under the assumption

it was repaired. And it was a space heater and I just didn’t think it was important.

And . . . I think if the seller tells me something’s been repaired, I take them at their

word. I’m not . . . a contractor.” (Bentley depo., p. 147.)

As discussed above, the Pascoes and their inspector had the

unimpeded opportunity to inspect the heat and observe any alleged defect with the

heat. Additionally, the Pascoes lived in the house for approximately 14 months

without any issue with the heat. Because the alleged issue with the heat could have

been found in a reasonably diligent inspection, we find that there is no genuine issue

of material fact on the Pascoes’ R.C. 4735.67(A) claim. Additionally, the record is devoid of any indication that Bentley made any representations or assisted Detke

with the disclosure forms. Indeed, both disclosure forms provide that “[t]he

statements contained in this form are made by the owner and are not the statements

of the owner’s agent or subagent[.]” Therefore, Bentley was entitled to summary

judgment on this claim.

3. Civil Conspiracy

Third, the Pascoes attack the grant of summary judgment on their

civil-conspiracy claim. The Pascoes claim that Detke and Bentley have been friends

for over twenty five years and their conduct was “classic civil conspiracy under Ohio

law.” (Pascoes’ brief, p. 20.) Civil conspiracy is defined as “‘a malicious combination

of two or more persons to injure another in person or property, in a way not

competent for one alone, resulting in actual damages.’” Kenty v. Transamerica

Premium Ins. Co., 72 Ohio St.3d 415, 419 (1995), quoting LeFort v. Century 21–

Maitland Realty Co., 32 Ohio St.3d 121, 126 (1987), citing Minarik v. Nagy, 8 Ohio

App.2d 194, 196 (8th Dist. 1963).

In the matter before us, the Pascoes argue that Detke and Bentley

both knew of the issue with the heat and agreed to conceal it and conceal that the

previous sale failed because of water leaking from the stack. The issue of the failed

sale stems from Michael’s deposition testimony that when he spoke with the

previous prospective purchasers, he learned that the sale failed at inspection in part

because of a water leak that occurred while the prospective purchasers were in the

home, as well as electrical issues that caused them concern and possibly issues with the roof. The Pascoes maintain that Bentley should have disclosed these defects to

them but instead hid the real reason and told the Pascoes the husband had not seen

the home and when he did see it, he did not like it.

Civil conspiracy, however, is a derivative claim that cannot be

maintained without an underlying tort that is actionable without the conspiracy.

Arnoff v. PAJ Ents., 2022-Ohio-1759, ¶ 18 (8th Dist.), citing Adams v. Margarum,

2017-Ohio-2741, ¶ 21 (10th Dist.) (“[A] civil conspiracy claim is derivative and

cannot be maintained absent an underlying tort that is actionable without the

conspiracy.”). In this case, because the Pascoes failed, as a matter of law, on their

other claims, including the fraud claims, their civil-conspiracy claim fails as well.

4. Fraud

In their amended complaint, the Pascoes alleged fraud against

Bentley. Bentley, however, argues that the Pascoes abandoned and waived any

argument on appeal regarding their fraud claim against them. We agree.

In their reply brief, the Pascoes contend that they did not abandon

their fraud claim against Bentley because in their appellate brief they noted evidence

of “three specific acts in furtherance of the fraud against the Pascoes: (1) not

disclosing the heating defect, (2) misrepresenting the cause of the failed sale, and

(3) airing out the sewer gas smell.” (Pascoes’ brief, p. 20-21.) Their only reference

to this, however, is structured within their discussion regarding the trial court’s

dismissal of their civil-conspiracy claim and without any citation to the record in

support of their claim. The Pascoes do not separately argue their fraud claim against Bentley, nor do they support their contention with citations to the authorities,

statutes, and parts of the record on which they rely. Therefore, we decline to address

any argument relating to their fraud claim against Bentley. App.R. 16(A)(7) and

App.R. 12(A)(2).

5. Respondeat Superior

Lastly, the Pascoes argue the trial court erred in dismissing their

claims against Howard Hanna. Relying on Auer v. Paliath, 2014-Ohio-3632, ¶ 16,

they contend that Howard Hanna, as the real estate broker, is vicariously liable for

Bentley’s actions, as the real estate agent, if that agent is acting in the course and

scope of their employment. Similar to civil conspiracy, respondeat superior is a

derivative claim. Orac v. Montefiore Found., 2024-Ohio-4904, ¶ 22 (8th Dist.),

quoting Albain v. Flower Hosp., 50 Ohio St.3d 251, 255 (1990) (“In the

employment-law context, ‘the most common form of derivative or vicarious liability

is that imposed by the law of agency, through the doctrine of respondeat superior.’”)

Therefore, “‘a principal is vicariously liable only when an agent could be held directly

liable.’” Id., quoting Natl. Union Fire Ins. Co. v. Wuerth, 2009-Ohio-3601, ¶ 22.

Having found that the Pascoes’ claims against Bentley fail as a matter of law, their

respondeat superior claim against Howard Hanna likewise fails as a derivative

claim.

Thus, based on the foregoing, we find that the trial court properly

granted summary judgment in favor of Bentley and Howard Hanna. Even when

construing the evidence in most strongly in favor of the Pascoes, the Pascoes have failed to demonstrate a genuine issue of material fact. Bentley and Howard Hanna

are entitled to judgment as a matter of law.

Therefore, the third assignment of error is overruled.

Accordingly, judgment is affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________ MARY J. BOYLE, JUDGE

EMANUELLA D. GROVES, P.J., and SEAN C. GALLAGHER, J., CONCUR