[Cite as Stutler v. Giannini, 2021-Ohio-1395.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JENIFER STUTLER JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 00159 MARILYN GIANINI
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2019 CV 02083
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SANDRA J. ROSENTHAL RICHARD D. REINBOLD 25423 Cardington Drive 236 3rd Street, SW Beachwood, Ohio 44122 Canton, Ohio 44702 Stark County, Case No. 2020 CA 00159 2
Wise, John, J.
{¶1} Plaintiff-Appellant, Jenifer Stutler, appeals from the November 4, 2020
Judgment Entry by the Stark County Court of Common Pleas. Appellee is Marilyn
Giannini. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 3, 2017, Appellee listed her home for sale.
{¶3} On February 4, 2017, Appellant did a walk-through of the home.
{¶4} On February 5, 2017, Appellant made an offer on the home, which was
accepted.
{¶5} On February 17, 2017, Appellant hired Matthew Adams of Sharpshooter
Home Inspections to do an inspection of the property. In his report, Matthew Adams noted
that based on a careful visual inspection of readily accessible areas of the structure
inspected, there was no visible sign of wood destroying insects.
{¶6} On March 17, 2017, Appellant closed on the purchase of a home from
Appellee.
{¶7} Prior to the purchase of the home Appellee completed the Ohio Residential
Property Disclosure form. On the form Appellee indicated she did not have any knowledge
of any previous or current wood destroying insects or termites in or on the property or any
existing damage caused by such insects or termites.
{¶8} Appellee, Appellee’s son, Anthony, and Appellee’s daughter, Tracy, all
testified that they were not aware of any issues with termites.
{¶9} In August of 2017, when attempting to clean a smudge from a fiber
reinforced plastic panel, her thumb went through the panel. The newly exposed area Stark County, Case No. 2020 CA 00159 3
showed evidence of termite activity. The fiber reinforced plastic panel covered two walls
of the laundry room and around the entire interior of the garage up to approximately four
feet. The fiber reinforced plastic panel was replaced by Appellee’s son in 2016. Appellee
testified she did not participate in the replacement of the fiber reinforced plastic.
{¶10} On August 24, 2017, T&L Extermination Services inspected the infestation.
{¶11} On September 14, 2017, T&L Extermination Services treated the entire
home for termites.
{¶12} On October 30, 2017, Appellant hired a contractor to begin to tear out
damaged areas. This continued through the winter as more termite activity and damage
was discovered.
{¶13} On October 31, 2017, Appellant again contacted T&L Extermination
Services to treat the interior. During treatment he traced the termite activity to a crawl
space located in the basement under the laundry room.
{¶14} On February 7, 2018, T&L Extermination returned to the property to assess
the damage in the garage. He determined three-quarters of the structure was severely
damaged, and estimated the termites were present and active for three to five years.
{¶15} The total cost of the termite infestation, tearing out the damaged areas, and
restoration was $31,761.11.
{¶16} On October 16, 2019, Appellant filed a complaint asserting that on the Ohio
Residential Property Disclosure form, Appellee misrepresented that she did not know of
any previous or current wood destroying insects or termites in or on the property or any
existing damage caused by such insects or termites. Stark County, Case No. 2020 CA 00159 4
{¶17} On September 4, 2020, Appellee filed a Motion for Summary Judgment,
arguing two reasons: first, that the record does not contain any evidence which creates a
genuine issue of material fact as to whether Appellee had knowledge of the termites prior
to the sale of the house; second, that Appellant could not have justifiably relied on
Defendant’s Property Disclosure form as the sale of the property was contingent on the
termite inspection Appellant requested.
{¶18} On November 4, 2020, the trial court granted Appellee’s Motion for
Summary Judgment, finding Appellant did not provide the trial court with any evidence
which showed Appellee, or anyone else, knew that there were termites in the house or
that termites were actively concealed prior to sale.
ASSIGNMENTS OF ERROR
{¶19} On November 16, 2020, Appellant filed a notice of appeal from the
November 4, 2020, judgment entry. Appellant herein raises the following Assignment of
Error:
{¶20} “I. THE COURT OF COMMON PLEAS ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF THE DEFENDANT WHEN GENUINE ISSUES OF
MATERIAL FACT EXISTED WITH RESPECT TO EACH ELEMENT OF APPELLANT’S
CLAIM FOR FRAUD.”
{¶21} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by granting Appellee’s Motion for Summary Judgment. We disagree.
{¶22} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any Stark County, Case No. 2020 CA 00159 5
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may grant
summary judgment if it determines: (1) no genuine issues as to any material fact remain
to be litigated; (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
viewing such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997).
{¶23} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶24} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met this initial burden, the nonmoving party then has
a reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R.
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[Cite as Stutler v. Giannini, 2021-Ohio-1395.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JENIFER STUTLER JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 00159 MARILYN GIANINI
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2019 CV 02083
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SANDRA J. ROSENTHAL RICHARD D. REINBOLD 25423 Cardington Drive 236 3rd Street, SW Beachwood, Ohio 44122 Canton, Ohio 44702 Stark County, Case No. 2020 CA 00159 2
Wise, John, J.
{¶1} Plaintiff-Appellant, Jenifer Stutler, appeals from the November 4, 2020
Judgment Entry by the Stark County Court of Common Pleas. Appellee is Marilyn
Giannini. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 3, 2017, Appellee listed her home for sale.
{¶3} On February 4, 2017, Appellant did a walk-through of the home.
{¶4} On February 5, 2017, Appellant made an offer on the home, which was
accepted.
{¶5} On February 17, 2017, Appellant hired Matthew Adams of Sharpshooter
Home Inspections to do an inspection of the property. In his report, Matthew Adams noted
that based on a careful visual inspection of readily accessible areas of the structure
inspected, there was no visible sign of wood destroying insects.
{¶6} On March 17, 2017, Appellant closed on the purchase of a home from
Appellee.
{¶7} Prior to the purchase of the home Appellee completed the Ohio Residential
Property Disclosure form. On the form Appellee indicated she did not have any knowledge
of any previous or current wood destroying insects or termites in or on the property or any
existing damage caused by such insects or termites.
{¶8} Appellee, Appellee’s son, Anthony, and Appellee’s daughter, Tracy, all
testified that they were not aware of any issues with termites.
{¶9} In August of 2017, when attempting to clean a smudge from a fiber
reinforced plastic panel, her thumb went through the panel. The newly exposed area Stark County, Case No. 2020 CA 00159 3
showed evidence of termite activity. The fiber reinforced plastic panel covered two walls
of the laundry room and around the entire interior of the garage up to approximately four
feet. The fiber reinforced plastic panel was replaced by Appellee’s son in 2016. Appellee
testified she did not participate in the replacement of the fiber reinforced plastic.
{¶10} On August 24, 2017, T&L Extermination Services inspected the infestation.
{¶11} On September 14, 2017, T&L Extermination Services treated the entire
home for termites.
{¶12} On October 30, 2017, Appellant hired a contractor to begin to tear out
damaged areas. This continued through the winter as more termite activity and damage
was discovered.
{¶13} On October 31, 2017, Appellant again contacted T&L Extermination
Services to treat the interior. During treatment he traced the termite activity to a crawl
space located in the basement under the laundry room.
{¶14} On February 7, 2018, T&L Extermination returned to the property to assess
the damage in the garage. He determined three-quarters of the structure was severely
damaged, and estimated the termites were present and active for three to five years.
{¶15} The total cost of the termite infestation, tearing out the damaged areas, and
restoration was $31,761.11.
{¶16} On October 16, 2019, Appellant filed a complaint asserting that on the Ohio
Residential Property Disclosure form, Appellee misrepresented that she did not know of
any previous or current wood destroying insects or termites in or on the property or any
existing damage caused by such insects or termites. Stark County, Case No. 2020 CA 00159 4
{¶17} On September 4, 2020, Appellee filed a Motion for Summary Judgment,
arguing two reasons: first, that the record does not contain any evidence which creates a
genuine issue of material fact as to whether Appellee had knowledge of the termites prior
to the sale of the house; second, that Appellant could not have justifiably relied on
Defendant’s Property Disclosure form as the sale of the property was contingent on the
termite inspection Appellant requested.
{¶18} On November 4, 2020, the trial court granted Appellee’s Motion for
Summary Judgment, finding Appellant did not provide the trial court with any evidence
which showed Appellee, or anyone else, knew that there were termites in the house or
that termites were actively concealed prior to sale.
ASSIGNMENTS OF ERROR
{¶19} On November 16, 2020, Appellant filed a notice of appeal from the
November 4, 2020, judgment entry. Appellant herein raises the following Assignment of
Error:
{¶20} “I. THE COURT OF COMMON PLEAS ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF THE DEFENDANT WHEN GENUINE ISSUES OF
MATERIAL FACT EXISTED WITH RESPECT TO EACH ELEMENT OF APPELLANT’S
CLAIM FOR FRAUD.”
{¶21} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by granting Appellee’s Motion for Summary Judgment. We disagree.
{¶22} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any Stark County, Case No. 2020 CA 00159 5
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may grant
summary judgment if it determines: (1) no genuine issues as to any material fact remain
to be litigated; (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
viewing such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997).
{¶23} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶24} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met this initial burden, the nonmoving party then has
a reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
{¶25} The elements of fraudulent misrepresentation are (1) a representation on
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 Stark County, Case No. 2020 CA 00159 6
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) followed by
justifiable reliance upon the representation or concealment by the other party, and (6)
resulting injury proximately caused by the reliance. Funk v. Durant, 5th Dist. No. CT 2002-
0032, 155 Ohio App.3d 99, 2003-Ohio-5591, 799 N.E.2d 221, ¶20. See also Friedland v.
Lipman (1980), 68 Ohio App.2d 255, 22 O.O.3d 422, 429 N.E.2d 456.
{¶26} In the case sub judice, the trial court found Appellant presented no evidence
showing Appellee knew of termites in the house or that the termites were actively
concealed prior to the sale. Appellant contends that because Appellee’s son, Anthony
Giannini, placed fiber reinforced plastic boards over holes in the wall in 2016, he would
have seen the termite damage which Appellant did not discover until a year later in August
of 2017. Appellant points to photographs taken sometime after discovery of the termite
infestation as proof that Anthony would have known about termite damage. However,
Appellant does not provide any evidence of the condition of the infested area at the time
Anthony completed the work. Appellee, Anthony, and Appellee’s daughter testified they
had no knowledge of termites, or termite damage. Appellant’s argument contained only
unsupported allegations that Appellee would have known damage existed or would have
seen the damage while walking by the work being done in the garage or laundry room.
Appellant’s unsubstantiated allegations fail to meet Appellant’s burden and did not raise
any genuine issue of material fact to preclude summary judgment. Stark County, Case No. 2020 CA 00159 7
{¶27} Appellant’s sole Assignment of Error is overruled.
{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/br 0415 Stark County, Case No. 2020 CA 00159 8