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Case Information
Filed
2023-07-07
Status
CLOSED
Type
Civil Austintown
Docket
51 entries
Disposition
dismiss
Parties
Plaintiff
Holland, John E|Holland, Rene S
Defendant
Elias, Norma
Lawyers
Docket Entries
- $0.00
- Issue Date: 07/07/2023 Service: SUMMONS ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 ELIAS, NORMA 7016 HARRINGTON AVENUE YOUNGSTOWN, OH 44512 Tracking No: 941472669904220365101
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 07/07/2023 Service : SUMMONS ISSUED Served : 07/11/2023 Return : 07/13/2023 On : ELIAS, NORMA Signed By : N ELIAS Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904220365101
- ANSWER FILED BY Attorney: MESSURI ESQ, JOSEPH M (92375)
- HEARING SCHEDULED Event: CIVIL PRE TRIAL Date: 10/20/2023 Time: 10:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF CIVIL PRE TRIAL SENT TO ATTY ALDEN B CHEVLEN AND ATTY JOSEPH M MESSURI
- PRE-TRIAL HELD ON THE 20TH DAY OF OCTOBER 2023. COUNSEL ALDEN CHEVLEN FOR PLAINTIFF/PLAINTIFF PRESENT. COUNSEL JOSEPH MESSURI FOR DEFENDANT/DEFENDANT PRESENT. DISCOVERY TO BE COMPLETED IN 60 DAYS. DISPOSITIVE MOTIONS, IF ANY, FILED IN 90 DAYS. TRIAL TO BENCH. SET BENCH TRIAL FOR 120 DAYS /S/ MAGISTRATE DONALD J DESANTO
- HEARING SCHEDULED-CONTINUED Event: CIVIL TRIAL Date: 02/23/2024 Time: 11:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED
- NOTICE OF CIVIL TRIAL SENT TO ATTORNEY CHEVLEN AND ATTORNEY MESSURI BY REGULAR MAIL
- NOTICE OF SERVICE OF DEFENDANT'S INTERROGATORIES AND PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF'S FILED BY Attorney: MESSURI, JOSEPH M (92375)
- FAXED COPY OF COMPLAINT TO ATTORNEY MESSURI PER REQUEST
- DEFENDANT ELIAS MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ELIAS FILED BY Attorney: MESSURI, JOSEPH M (92375)
- HEARING SCHEDULED Event: NON-ORAL HEARING - MOTION FOR SUMMARY JUDGMENT Date: 03/01/2024 Time: 11:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF CANCELLED CIVIL TRIAL AND NOTICE OF NON ORAL HEARING SENT TO ATTY ALDEN B CHEVLEN AND ATTY JOSEPH M MESSUSRI
- DEFENDANT ELIAS MOTION FOR WITNESS TO APPEAR VIA VIDEO FILED BY Attorney: MESSURI, JOSEPH M (92375)
- PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S MOTON FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE PLAINTIFF'S MOTION FOR LEAVE OF COURT IN WHICH TO RESPOND TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FILED BY Attorney: CHEVLEN ESQ, ALDEN B (4928)
- PLAINTIFF'S OBJECTION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FILED BY Attorney: CHEVLEN ESQ, ALDEN B (4928)
- MAGISTRATE HAS FILE UNDER REVIEW
- DECISION OF MAGISTRATE: The Proceedings This matter came on for non-oral hearing on March 1, 2024, on the defendant's Motion for Summary Judgment filed February 1, 2024. Also considered was the Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment with Alternative Motion for Leave filed February 20, 2024 and Plaintiffs' Objection to Defendant's Motion for Summary Judgment filed February 23, 2024. Present Were Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. Findings of Fact and Conclusions of Law 1. Plaintiffs filed their three-count complaint alleging breach of contract, fraud and misrepresentation on July 5, 2023. The contract concerns a sale between the parties of a parcel of real property, specifically 1795 Brockton Dr., Youngstown, OH 44515. Plaintiffs allege a flooding condition on such property which they assert was known by the defendant and not disclosed. Plaintiffs request judgment in the amount of $7,590.00 plus attorney's fees and costs. The defendant filed a timely answer on August 2, 2023 admitting that she was previously the owner of the subject real property, 1795 Brockton Dr., Youngtown, Ohio but otherwise denying all other allegations of the plaintiff's complaint and asserting various affirmative defenses. 2. In her motion for summary judgment the defendant makes reference to Revised Code 5302.30. Defendant lists various sub-subsections of Revised Code section 5302.30 which impose liability upon the transferor (seller) for conditions actually known or alternatively within the actual knowledge of such transferor. The defendant includes in her motion for summary judgment a Statement and Facts of the Case . There are a host of unsworn assertions within such statement of facts which are not supported by a supporting affidavit from the defendant or any other material witness. 3. In their Motion to strike filed February 20, 2024 the plaintiffs argue that the defendant's motion was not timely filed. The court notes that a pretrial report was issued on October 20, 2023 and required that dispositive motions, if any, be filed within 90 days or more specifically, on or before January 18, 2024. Plaintiffs moved, in the alternative, that they be afforded an additional 5 days within which to respond to the Defendant's motion for summary judgment. The court notes that the plaintiffs' reference to Rule Six (A)(2) regarding response time is misplaced. The rule cited by the plaintiffs is applicable to the Mahoning County Court of Common Pleas and not to the Mahoning County Area Courts. Local Rule 8 (H)(2) of the Mahoning County Area Courts permits an extension of time within which to file a responsive brief within the discretion of the court. Regardless, the court finds such alternative request to be moot as such 5-day period has long expired and the plaintiffs filed an objection to the Defendant's motion for summary judgment on February 23, 2024. 4. In their objection to the defendant's motion for summary judgment the plaintiffs argue that the defendant has failed to provide discovery responses and has not substantiated the defense of lack of knowledge. The plaintiffs note that none of the defendant's prior tenants have provided affidavits to support her assertion of her lack of knowledge of any flooding condition. 5. Local Rule 8 (H) provides that, Summary Judgment. (1) motions for summary judgment may be made in accordance with Civil Rule 56, without leave of Court, by any party prior to the matter being set for pretrial or trial. Otherwise, the moving party may move for summary judgment only with leave of Court. All motions shall be accompanied by briefs, affidavits and other materials authorized by Civil Rule 56(C). In this case, since the matter had already set for pretrial, and the court set a dispositive motion deadline, the defendant was required to seek leave of court in order to file a motion for summary judgment outside the timelines set in the pretrial report. 6. Civil Rule 56(C) provides that, . . . Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. . . (emphasis added) While the defendant proffers a viable argument and defense in her answer and motion for summary judgment such assertions are unsworn statements of counsel and do not constitute evidence or stipulation as contemplated by Civil Rule 56. The Court is cognizant that Civil Rule 56 provides that a party may move with or without supporting affidavits for summary judgment however such language does not relieve the moving party of the obligation to show that there is no genuine issue of material fact based upon the evidence or stipulation, and only from such evidence or stipulation. Decision 1. Defendant's motion for summary judgment is overruled. 2. Plaintiffs' motion to strike is overruled. 3. Plaintiffs' motion for leave of court in which to respond to defendant's motion for summary judgment is dismissed as moot. 4. Matter be set for trial in 30 days /S/ MAGISTRATE DONALD J DESANTO
- HEARING SCHEDULED Event: CIVIL TRIAL Date: 04/19/2024 Time: 10:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED BY JUDGE
- MAGISTRATE'S DECISION AND NOTICE OF HEARING SENT TO ATTORNEYS BY REGULAR MAIL
- DEFENDANT ELIAS' MOTION FOR WITNESS TO APPEAR VIA VIDEO FILED Attorney: MESSURI, JOSEPH M (92375)
- ENTRY: THE MOTION OF DEFENDANT TO ALLOW WITNESS SCOTT NORQUEST AND WITNESS ERICA MILLER TO APPEAR BY TELEPHONE OR BY VIDEO AT THE TRIAL ON FRIDAY APRIL 19, 2024 IS HEREBY DENIED /S/ MAGISTRATE DONALD J DESANTO /S/ JUDGE SCOTT D HUNTER
- DEFENDANT ELIAS' MOTION FOR CONTINUANCE FILED Attorney: MESSURI, JOSEPH M (92375)
- SUBPOENA OF WITNESS FILED Attorney: CHEVLEN ESQ, ALDEN B (4928)
- ENTRY: UPON MOTION BY DEFENDANT, AND FOR GOOD CAUSE SHOWN, THE TRIAL SET ON APRIL 19, 2024 AT 10:30 AM IN THE ABOVE CAPTIONED CASE WILL BE CONTINUED FOR 21 DAYS FOR A ONE HOUR HEARING. THERE WILL BE NO FURTHER CONTINUANCES /S/ JUDGE SCOTT D HUNTER
- DEPOSIT RECEIVED FROM: ATTORNEY ALDEN CHEVLEN - DO NOT REFUND - MONEY WILL BE USED FOR AN UPDATED SUBPOENA OF WITNESS Receipt: 430374 Date: 04/19/2024
- HEARING SCHEDULED- Event: CIVIL TRIAL Date: 05/10/2024 Time: 10:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result:
- ENTRY AND NOTICE OF HEARING SENT TO ATTORNEYS BY REGULAR MAIL
- SUBPOENA FOR MS KEME BONNER FILED BY Attorney: CHEVLEN ESQ, ALDEN B (4928) Receipt: 432476 Date: 05/31/2024
- Issue Date: 04/30/2024 Service: SUBPOENA ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 BONNER, KEME 139 CHESWICK VILLAGE DR POWELL, OH 43065 Tracking No: 941472669904221890598
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 04/30/2024 Service : SUBPOENA ISSUED Served : Return : 05/08/2024 On : BONNER, KEME Signed By : NOT LEGIBLE Reason : (A) SUCCESSFUL SERVICE Comment : SIGNED - NO SERVICE DATE Tracking # : 941472669904221890598
- JOURNAL ENTRY ADOPTING THE MAGISTRATE'S DECISION: The attached decision was filed by the Magistrate of this Court on 3/8/24. The Court finds that no written objections have been timely filed. The Court has conducted an independent review of the Magistrate's Decision and finds that such Decision is well supported and there is no error or defect on the face of such Decision. Accordingly, such attached Magistrate's Decision is adopted in its entirety, pursuant to Civil Rule 53(D)(4), as a permanent Order of the Court. /S/JUDGE SCOTT D HUNTER
- ADOPTION OF MAGISTRATE DECISION SENT TO ATTY ALDEN B CHEVLEN AND ATTY JOSEPH M MESSURI
- DECISION OF MAGISTRATE: The Proceedings This matter came on for trial on May 10, 2024, on the Plaintiff's complaint filed July 5, 2023. Present Were Plaintiffs appeared with their counsel, Alden B. Chevlen, Esq. Defendant appeared with her counsel, Joseph M. Messuri, Esq. Findings of Fact and Conclusions of Law 1. Plaintiffs filed their three-count complaint alleging breach of contract, fraud and misrepresentation on July 5, 2023. The contract concerns a sale between the parties of a parcel of real property, specifically 1795 Brockton Dr., Youngstown, OH 44515. Plaintiffs allege a flooding condition on such property which they assert was known by the defendant and not disclosed. Plaintiffs request judgment in the amount of $7,590.00 plus attorney's fees and costs. The defendant filed a timely answer on August 2, 2023 admitting that she was previously the owner of the subject real property, 1795 Brockton Dr., Youngtown, Ohio but otherwise denying all other allegations of the plaintiff's complaint and asserting various affirmative defenses. The defendant's prior motion for summary judgment filed February 1, 2024 as well as the plaintiff's motion to strike filed February 20, 2024 were both overruled by magistrate's decision dated March 8, 2024. The Magistrate notes that no timely objections filed to such March 8, 2024 magistrate's decision however the docket does not reflect that such decision was adopted as a judgment entry of court. Neither party raised such issue at the time of trial 2 Trial commenced with plaintiffs calling as their first witness, Plaintiff, Rene Holland. She testified that she purchased the subject property, 1795 Brockton Dr., Youngstown, Ohio 44515 in July, 2022. She indicated that she noticed no water in the backyard at the time of her initial viewing of the property. She made an offer immediately thereafter on July 14, 2022 and closed approximately three weeks later. Ms. Holland indicated that she had an inspection of the premises performed by Worona Home Inspections, Inc. and submitted such inspection as Plaintiff's Exhibit B. The inspection noticed no water in the backyard. Plaintiff testified that she paid $172,000.00 for the subject property and submitted Plaintiffs' Exhibit A, the purchase agreement for the property. 3. Reference was directed to the Residential Property Disclosure Form attached to Plaintiffs' Exhibit A. The plaintiff noted that Section K of the disclosure form reflects the defendant indicated that she had no knowledge of any previous or current flooding, drainage, settling, or grading or erosion problems affecting the property. Plaintiff indicated that she noticed a water accumulation in the backyard approximately five months after the purchase. At that time Ms. Holland submitted Plaintiffs' Exhibits C and D, 2 photographs reflecting accumulation of water in the backyard. The photographs were taken looking from the back of her home and towards the neighbor's home. The photographs were taken in January, 2023. By her testimony it took approximately one to two weeks for the area to fill up with water which was ankle deep. Next shown were Plaintiffs' Exhibits G and H. Such exhibits reflect 2 photographs taken of standing water in February, 2023. By the plaintiff's testimony this water was not as deep as that which accumulated in January, 2023 and dissipated in approximately one week. 4. Ms. Holland indicated that she contacted four excavators. She stated she was told that the property needed French drains. She received four bids that ranged between $5,200.00 and $9,800.00. She ultimately chose to hire an individual or entity simply referenced as Blake for which she paid $6,640.00. The Magistrate notes, though it is not critical, that no billing statement was submitted. Ms. Holland indicated that she observed drainpipes installed in the backyard and then down the side of the house to the street. Subsequently, the plaintiffs brought in topsoil for which they paid the sum of $950.00 for both the topsoil and the use of a machine to spread the topsoil. Plaintiff, John Holland, performed the work to spread the topsoil. Lastly submitted by the plaintiffs was Plaintiffs' Exhibit M, a copy of the April 21, 2023 letter of counsel, Alden Chevlen, to the defendant. 5. On cross examination Ms. Holland acknowledged that she first spoke with her counsel in March of 2023 with her complaint being filed in July of 2023. She acknowledged that most flooding was not visible when there was a minor rain or snow. The plaintiff was again shown Plaintiffs' Exhibits C and D and marked with a highlighter the boundary line of her property in reference to the standing water. She acknowledged that she moved into the subject property in August 2022 and noticed no flooding until late January, 2023. She testified that there were 3 instances of water in the yard, specifically January, 2023, February, 2023 and March, 2023. 6. Ms. Holland was next shown the home inspection report marked as Plaintiffs' Exhibit B. Reference was directed to the first page wherein in response to Recent Condition (Past Week or so) the inspector stated, Hot with Rain. Reference was also directed to the next to the last page of the inspection report which is titled, Miscellaneous Home Items which reflects that the grade at the foundation, lot grade and yard drainage were all marked as functional. The magistrate notes that this designation appears to be the highest grade that could be ascribed to the various items. 7. Ms. Holland's attention was next directed to the Residential Property Disclosure Form attached to Plaintiffs' Exhibit A. She acknowledged the disclosure form indicates that the defendant had completed same indicating that she was not occupying the property and wrote, Rental - never lived in property. She further acknowledged that she accepted the property in its present condition as reflected on line 10 of Plaintiffs' Exhibit A. Her attention was further directed to line 53 of Plaintiffs' Exhibit A which states, Buyer has not relied upon any representation, warranties or statements about the property (including but not limited to its condition or use) unless otherwise disclosed by the seller. Buyer assumes the responsibility to verify that the property is suitable or zoned for the intended use. Reference was also directed to line 182 of Plaintiffs' Exhibit A which provides, Buyer has examined all property involved and, in making this offer, is relying solely upon such examination with reference to the condition, character and size of land and improvements and fixtures, if any. Ms. Holland acknowledged that she spoke with no neighbors or any prior tenants before her July, 2022 purchase of the subject premises. She lastly acknowledged that the dirt that was brought in was purely for cosmetic reasons. The French drains that had been installed rectified the water drainage problem. 8. Next called to testify was the plaintiff, John Holland. Mr. Holland noted that when the contractors came to his property there was standing water. On cross examination he indicated that Blake got out of his truck and used a laser level in examining the grade of the backyard. He acknowledged that Blake did not indicate that additional dirt was necessary. 9. Next called to testify for the plaintiff was one, Keme Bonner. Ms. Bonner indicated that she resided at the subject premises from July 2018 until July 2019. She testified that she spoke frequently with the defendant. Initially Ms. Bonner indicated that she spoke to the defendant about the flooding and adding a fence. She later corrected her testimony and indicated that she was not sure whether she or her husband, an orthopedic surgeon in training and unavailable to testify, spoke to the defendant regarding the flooding. She acknowledged that the defendant did not correct the flooding problem. On cross-examination Ms. Bonner indicated that when there was a major rain water would remain for a week. If there was a minor rain water would dissipate in a couple of days. She acknowledged that during her one-year tenancy the defendant was never present at the subject premises. 10. Next called to testify for the Plaintiff was one, Julie Franken. Ms. Franken lives at 1799 Brockton Dr., Youngstown, Ohio, next to the subject premises. She indicated that as she grew up she lived in the house from 1969 through 1982. She returned to living in the premises approximately 6 years ago. She noticed flooding on the side of her house which would last for a couple of weeks before dissipating. She testified that she observed the defendant at the subject premises but that they never spoke. On cross-examination Ms. Franken testified that she never spoke to the defendant about the flooding situation. 11. At that point the plaintiffs rested with submission of all exhibits. Defendant objected to Plaintiffs' Exhibit M. Such objection was overruled and all exhibits were admitted. Defendant then moved to dismiss on the grounds that the plaintiffs had failed to establish that the defendant had notice of the flooding condition and accordingly had failed to sustain their burden of proof. The plaintiffs argued that the testimony that was submitted gave rise to an inference of notice on the part of the defendant. The defendant's motion to dismiss was sustained for the reasons as set forth below. 12. Plaintiffs' complaint in count one is premised on the residential property disclosure form signed by the defendant even though the complaint mentions, In addition to any oral statements made by the defendant regarding flooding of the rear yard. The Magistrate notes that no oral statements of the defendant were proffered at trial by the plaintiffs or any other witness. Count two of the complaint mentions various other factual assertions regarding flooding at the property and states, . pooling had existed for years, and was open and obvious to the owner. Count two does not appear to raise any cognizable claim other than the alleged misrepresentation, if any, in the residential property disclosure form. Count three of the complaint asserts various other facts going to the issue of plaintiffs' alleged damages but otherwise raisingh no other or different claim. As such, though the caption of the plaintiff's complaint is for breach of contract, fraud and misrepresentation it appears that the complaint is instead firmly based upon a claim of misrepresentation in the residential property disclosure form. 13. R.C. 5302.30(F)(2) states: A transferor of residential real property is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from any error in, inaccuracy of, or omission of any item of information required to be disclosed in the property disclosure form if the error, inaccuracy, or omission was not within the transferor's actual knowledge. (emphasis added) It is apparent that the critical issue in this case is whether the defendant had actual knowledge of flooding at the subject residence so that her representation that there was no water accumulation was a misrepresentation. The court is permitted to draw reasonable inferences from the facts established at trial. As such, it is important to note the facts that were established at trial. There is no doubt that there was flooding at the subject property from July, 2018 to July, 2019 during the tenancy of Keme Bonner. The same can be said for January, 2023 through March, 2023 during the occupancy by the plaintiffs. Also noted was that the next-door neighbor, Julie Franken, was aware of the flooding. However, though flooding was established, knowledge of such condition on the part of the defendant was not. The plaintiffs presented two witnesses, neither of which was able to establish knowledge of flooding on the part of the defendant. While Keme Bonner initially testified to conversing with the defendant regarding flooding her later testimony, deemed credible, was that she could not indicate whether she or her husband had spoken to the defendant about the flooding. Indeed, Julie Franken, squarely indicated that she had never spoken to the defendant about the flooding. This testimony was given against a backdrop of a residential property disclosure wherein the defendant indicated that the subject premises was a rental and that she had never lived in the property. Based upon the evidence submitted the magistrate finds there was no factual basis upon which an inference could be drawn that the defendant had actual knowledge of the flooding condition thereby resulting in her statements in the residential property disclosure form being deemed a misrepresentation. Decision 1. Judgment for the defendant. Case dismissed at plaintiffs' costs. /S/MAGISTRATE DONALD J DESANTO Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b).
- DECISON OF MAGISTRATE 5/17/24 SENT TO ATTY ALDEN B CHEVLEN AND ATTY JOSEPH M MESSURI
- JOURNAL ENTRY ADOPTING THE MAGISTRATE'S DECISION: The attached decision was filed by the Magistrate of this Court on 5/17/24. The Court finds that no written objections have been timely filed. The Court has conducted an independent review of the Magistrate's Decision and finds that such Decision is well supported and there is no error or defect on the face of such Decision. Accordingly, such attached Magistrate's Decision is adopted in its entirety, pursuant to Civil Rule 53(D)(4), as a permanent Order of the Court. /S/JUDGE SCOTT D HUNTER
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