Pascoe v. Detke

[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.” (Mich