[Cite as Greig v. Wallick,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: GARY L. GREIG : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2010AP090036 : : WILLIAM C. WALLICK : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas Case No. 2009CV040307

JUDGMENT: Affirmed In Part and Reversed and Remanded In Part

DATE OF JUDGMENT ENTRY: January 10, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TZANGAS, PLAKAS, MANNOS & RICHARD W. HINIG RAIES, LTD 217 N. Broadway James M. McHugh New Philadelphia, Ohio 44663 Megan J. Frantz 220 Market Ave., South Eighth Floor Canton, Ohio 44702 [Cite as Greig v. Wallick,

.]

Edwards, J.

{¶1} Defendant-appellant William Wallick appeals from the August 24, 2010

Judgment Entry of the Tuscarawas County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} In 2005, appellant William Wallick sold his house to Gary Greig. At the

time, appellant had owned the house for approximately 25 years. Prior to purchasing

the house in July 2005 for $165,000.00, Greig had viewed it either two or three times

and “probably looked at the basement twice.” Trial Transcript at 73. Greig testified that

“there was nice white dry all on every part of that basement. And the floor was like

glossy. I see where she [his real estate agent] meant that you could’ve ate off the floor. I

mean it looked perfect.” Trial Transcript at 73.

{¶3} Greig testified that he reviewed the Residential Property Disclosure Form

in deciding to purchase the house. He testified that he remembered reviewing the form,

which had been signed by appellant on May 2, 2005, because it indicated that the roof

was only two years old. Appellant checked “No” on the Residential Property Disclosure

Form in response to the following questions:

{¶4} “D) WATER INTRUSION: Do you know of any previous or current water

leakage, water accumulation, excess moisture or other defects to the property, including

but not limited to any area below grade, basement, or crawl space?...

{¶5} “E) STRUCTURAL COMPONENTS (FOUNDATION, BASEMENT/CRAWL

SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any

movement, shifting, deterioration, material cracks/settling (other than visible minor Tuscarawas County App. Case No. 2010AP090036 3

cracks or blemishes) or other material problems with the foundation, basement/crawl

space, floors, or interior/exterior walls?”

{¶6} Greig further testified that he had a home inspection done. The inspection

report stated that it made no representations as to the condition of the basement walls

because they were covered with dry wall.

{¶7} Greig moved into the house in October of 2005. He testified that he first

noticed water problems in the basement in the early spring of 2006. According to Greig,

the east basement wall was leaking water. He testified that he cleaned up the water and

waited to see if it would recur and that it did. Greig testified that he next checked the

gutters, downspouts and drains to make sure that they were not clogged and functioned

properly. However, the problem continued to get worse.

{¶8} In mid-2008, Greig contacted Pioneer Basement Solutions which

recommended an exterior waterproofing system. When Pioneer tore out the drywall, it

was discovered that the east wall was moderately bowed. Greig testified that the bow

“went the entire length of the wall” and that there were big cracks in the wall. He also

testified that the insulation that had been removed by Pioneer was moldy and had

mildew and that there was mold on the drywall. Greig testified that he had a fortress

stabilization system put in at Pioneer’s recommendation. Trial Transcript at 84.

{¶9} Jerry Whitaker, who was employed by Pioneer at the time, testified that

there was mold on the front of the drywall and that, when the drywall was removed,

there were fractures and cracks in the wall and several layers of caulking had been

applied to the cracks. The following testimony was adduced when Whitaker was

questioned about the cracks: Tuscarawas County App. Case No. 2010AP090036 4

{¶10} “A. Yeah, there was some bowing to the wall where the fracture had - -

where the soil had started to push that fracture in.

{¶11} “Q. Okay. And let’s first talk about the bowing. How would you describe

the bowing of the wall?

{¶12} “A. It was moderate. I wouldn’t say it was too far gone and I suggested we

could arrest it, the situation, so it wouldn’t bow anymore.

{¶13} “Q. Okay. And then let’s talk about the fractures or the cracks in the wall.

What did you observe regarding those?

{¶14} “A. They were - -

{¶15} “Q. And let me be more specific. How big were they?

{¶16} “A. They were very - - some were hairline cracks, some were as big as a

half inch to three quarters to an inch. Maybe stick your, you know, the tip of your finger

in some cracks. Some were horizontal, some were the stair stepping type of cracks.

Just pretty typical but not safe.

{¶17} “Q. Okay. And how long were these cracks?

{¶18} “A. They started out in the corner and from what we could tell they

covered the whole length of the wall up to if I remember right, it was forty feet, the whole

length of the rear wall.

{¶19} “Q. So pretty long.

{¶20} “A. Yeah, pretty long.

{¶21} “Q. You talked about a crack that was half an inch wide. Was there

caulking in that crack?

{¶22} “A. Yeah, there was. Tuscarawas County App. Case No. 2010AP090036 5

{¶23} “Q. And there were multiple layers of caulking in it?

{¶24} “A. The caulking was there and had pulled away from where they originally

put it on so that told me that this wall was in fact moving. Whoever put the caulking

there from that point it had moved so had stretched and pulled away from it. That’s

when at that point I told Mr. Greig you might want to, you know, think about arresting the

wall, keep it from moving anymore.

{¶25} “Q. So what you observed regarding the wall with the cracks and the

bowing, was that something that you could just leave alone and let it be?

{¶26} “A. I couldn’t do it with good conscience, no. That’s why I strongly

recommended to him to take a look at it and it needs to be corrected.

{¶27} “Q. And what did you recommend to him be done?

{¶28} “A. We recommended the fortress grid straps on that wall to keep it from

moving any further.

{¶29} “Q. The caulking that you discovered, was it the same color or different

colors?

{¶30} “A. There were shades of white, some kind of a yellowish. I don’t know if

somebody couldn’t buy the whole one consistent color or if they were just different

layers over time.” Trial Transcript at 38-39.

{¶31} Whitaker further testified that the caulking that was in the cracks and at

the base of the wall indicated that someone was trying to stop the water problem. He

testified that there were layers of caulking. Whitaker testified that the leaking in the

basement was caused by clogged footer drains on the exterior of the house that caused

water to build up on the outside of the house. According to Whitaker, the soil then Tuscarawas County App. Case No. 2010AP090036 6

became heavier over time and caused the wall to bow and crack. He also testified that a

bowed wall should be fixed even if it were bowed a little bit. When asked, Whitaker

opined that the wall was significantly bowed and cracked when the house was sold to

Greig in August of 2005 and that the basement wall leaked at that point in time.

Whitaker testified that twelve fortress strips were used to stabilize the wall at a cost of

$400.00 a piece to install and that Greig needed two additional fortress strips installed.

In order to install the exterior drainage system, Pioneer had to remove some

landscaping around Greig’s house.

{¶32} On April 15, 2009, Greig filed a complaint against appellant for fraudulent

misrepresentation and concealment and negligent misrepresentation. Greig, in his

complaint, sought punitive damages. A bench trial was held on July 13, 2010.

{¶33} As memorialized in a Judgment Entry filed on August 24, 2010, the trial

court found that Greig had proven, by a preponderance of the evidence, all of the

elements of the claims of fraudulent concealment and fraudulent misrepresentation. The

trial court granted Greig1 judgment against appellant in the amount of $72,244.50. Of

this amount, $42,244.50 was for economic damages, $15,000.00 was for noneconomic

damages and $15,000.00 was for punitive damages.

{¶34} Of the $42,244.50, $14,720.00 was for past economic damages and

$27,524.50 was for future economic damages. Of the $14,720.00, $9,635.00 was for

installation of an exterior drainage system and footer drains by Pioneer, $5,000.00 was

for installation of twelve fortress footer straps, and $85.00 was for obtaining a mold

estimate. The $27,524.50 in future economic damages can be broken down as follows:

1 After Greig died, Carol Greig, the Executrix for the Estate of Gary Greig, was substituted as appellee in this case. Tuscarawas County App. Case No. 2010AP090036 7

{¶35} Move electrical box to install two additional Fortress straps - $585.00

{¶36} Installation of two additional Fortress straps - $800.00

{¶37} Replace drywall and studs - $995.00

{¶38} Repair and replace landscaping to original - $1,597.50

{¶39} Mold clean up - $3,547.00

{¶40} Decreased value of property with bowed, cracked wall - $20,000.00.

{¶41} Appellant now raises the following assignments of error on appeal:

{¶42} “I. THE COURT’S AWARD WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶43} “II. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY RELATED

TO MENTAL ANGUISH AND AWARDING COMPENSATION BASED ON THAT

TESTIMONY.

{¶44} “III. THE TRIAL COURT ERRED IN DETERMINING DAMAGES.

{¶45} “IV. THE TRIAL COURT ERRED IN AWARDING PUNITIVE DAMAGES.”

I

{¶46} Appellant, in his first assignment of error, argues that the trial court’s

judgment finding that Greig had proven, by a preponderance of the evidence, all of the

elements of the claims of fraudulent concealment and fraudulent misrepresentation was

against the manifest weight of the evidence. We disagree.

{¶47} In applying the manifest weight standard of review, our role is to determine

whether there is relevant, competent and credible evidence upon which a fact finder

could base its judgment. Cross Truck v. Jeffries, 5th Dist. No. CA-5758,

,

(Feb. 10, 2982). Judgments supported by some competent, credible evidence going to Tuscarawas County App. Case No. 2010AP090036 8

all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Constr. (1978),

,

, (1978).

{¶48} As stated above, the trial court found that appellant's conduct constituted a

fraudulent misrepresentation. To prove fraud, a plaintiff must show that there was: (a) a

representation, or where there is a duty to disclose, concealment of a fact, (b) which is

material to the transaction at hand, (c) 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, (d) with the intent of misleading another into relying on it, (e) justifiable

reliance upon the representation or concealment, and (f) resulting injury proximately

caused by the reliance. Burr v. Stark Cty. Bd. of Commrs.,

,

, (1986), paragraph two of the syllabus.

{¶49} As is stated above, appellee, in his complaint, alleged that appellant

fraudulently concealed that the exterior basement wall was bowed and cracked and also

fraudulently concealed that the wall was or had been leaking water.

{¶50} Appellant checked “No” on the Residential Property Disclosure Form in

response to the following questions:

{¶51} “D) WATER INTRUSION: Do you know of any previous or current water

leakage, water accumulation, excess moisture or other defects to the property, including

but not limited to any area below grade, basement, or crawl space?...

{¶52} “E) STRUCTURAL COMPONENTS (FOUNDATION, BASEMENT/CRAWL

SPACE, FLOORS, INTERIOR AND EXTERIOR WALLS): Do you know of any

movement, shifting, deterioration, material cracks/settling (other than visible minor Tuscarawas County App. Case No. 2010AP090036 9

cracks or blemishes) or other material problems with the foundation, basement/crawl

space, floors, or interior/exterior walls?”

{¶53} Greig testified that he reviewed the same and, at trial, Paula Jane

Sulzener, his real estate agent, testified that there was no reason to believe that she did

not go over the disclosure form with Greig because that was her normal practice.

{¶54} At the bench trial in this matter, parts of appellant’s deposition testimony

were read into the record because appellant was not present at the trial. Appellant,

during his deposition, testified that the east wall was bowed when he bought the house

in 1980. Appellant testified that he dry walled the basement, but that he did not intend to

sell the house when he put up the drywall. Appellant testified that he decided to have

the basement dry walled because “[t]hat was the only thing on my list of things I wanted

to do to the house…That was the last item on the list to finish up…” Trial Transcript at

19-20. He also denied putting caulk on the east wall. When asked whether he had the

house on the market prior to doing the basement dry walling, appellant stated

“absolutely not.” Trial Transcript at 21.

{¶55} At the bench trial, Jodi Bambeck testified that she worked with Cathy

Petro at Remax Experts Realty (now Experts Realty) in 2004. Bambeck testified that

Exhibit 3, a Residential Agent Synopsis Report, showed that the subject house was

listed on June 17, 2004 with Petro, but did not sell. The listing expired in December of

2004. She further testified that Exhibit 4, also a Residential Agent Synopsis Report,

showed that Jeff Mathias listed the same property for sale on May 3, 2005 and sold it on

July 29, 2005 to Greig. Bambeck testified that both exhibits were true and accurate

copies of what was available on the Multiple Listing Service. Tuscarawas County App. Case No. 2010AP090036 10

{¶56} At the bench trial, Bambeck further testified that Exhibit 20, a photograph,

was taken in 2004. According to Bambeck, the picture showed what the basement

looked like in June of 2004 when Petro first listed the property. She testified that the

picture was a true and accurate picture kept in the ordinary course and scope of Expert

Realty’s business. The picture shows that the east basement wall was not drywalled at

the time of the first listing.

{¶57} Based on the foregoing, we find that there was competent, credible

evidence supporting the trial court’s finding that appellant knew of the defective

basement wall and fraudulently concealed and/or failed to disclose the same.

{¶58} Appellant’s first assignment of error is, therefore, overruled.

II

{¶59} Appellant, in his second assignment of error, argues that the trial court

erred in awarding Greig $15,000.00 for mental anguish. Appellant specifically contends

that appellee presented no expert testimony to support such claim.

{¶60} A reviewing court will not reverse a trial court's decision regarding its

determination of damages absent an abuse of discretion. Kaufman v. Byers,

,

,

, (11th Dist.) ¶37. In order to find abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore,

,

,

(1983).

{¶61} We note that expert testimony is not required to support an award of

damages for mental anguish. See, for example, Leforge v. Nationwide Mut. Ins. Co.,

,

, (12th Dist. 1992). In LeForge, insureds brought an Tuscarawas County App. Case No. 2010AP090036 11

action against their insurer for breach of contract and bad faith after their insurer

rejected their claim for fire loss on grounds that the insureds had intentionally caused

the fire. The insureds sought compensation for the mental anguish and inconvenience

caused by the lack of insurance benefits. After the trial, the insurer, on appeal, argued

that the insureds’ self-serving testimony about stress and inconvenience without

corroboration through expert testimony was insufficient to prove damages. The court

disagreed, stating, in relevant part, as follows: “in the present case it was within the

common knowledge of the jury that the LeForges would suffer mental anguish as a

result of losing all of their possessions, suffering financial problems, living in unsuitable

housing, having their van and boat repossessed, and working multiple jobs. The

LeForges offered the same type of proof on mental anguish and inconvenience as

would a personal injury plaintiff seeking compensation for pain and suffering.” Id at 701.

{¶62} In the case sub judice, it was within common knowledge that Greig would

suffer mental anguish caused by the defects and water in his basement. At the trial, he

testified as follows when asked how the discovery of the bowed wall affected his life:

{¶63} “A. The way it’s affected me is, you know, I waited a long time to buy a

house and I - - you know, I saved, I invested, I sacrificed and I did everything I could to

make sure that I looked for defects and I didn’t see any because they were covered.

And it’s - - I’ll tell you the truth. It’s affected my trust in people, it’s affected me

emotionally because, you know, I’m not a rich person, and you know, I didn’t go to the

hilt on it but I don’t have a lot of room here to start taking care of things like this. And

when I relied upon that representation and now I have this yet - - I had to take out a

loan, I have to pay interest on the loan, in addition to my house payment, in addition to Tuscarawas County App. Case No. 2010AP090036 12

all the other normal things that you take care of in a house. So it’s strapped me

financially, it’s put a burden on me as far as stress, and it’s (sic) just destroyed my - - it

really has - - it’s destroyed my trust.

{¶64} “Q. And what is your home to you? What’s the importance of your home

to you?

{¶65} “A. Well, to me it’s like - - it’s independence and – I’m sorry, but it does

affect me - -.” Trial Transcript at 105-106.

{¶66} Based on the foregoing, we find that expert testimony was not required to

establish damages for mental anguish and that the trial court’s decision to award Greig

$15,000.00 for the same was not arbitrary, unconscionable or unreasonable.

{¶67} Appellant’s second assignment of error is, therefore, overruled.

III

{¶68} Appellant, in his third assignment of error, argues that the trial court erred

in awarding Greig $27,524.50 in future economic damages and $14,635.00 (paid to

Pioneer) in past economic damages.

{¶69} As is stated above, an abuse of discretion standard applies. See

Thus, we must whether the trial court's decision was unreasonable,

arbitrary or unconscionable. See

{¶70} Appellant initially contends that Exhibits 10-13 should not have been

admitted, over objection, because they constituted hearsay. Exhibit 10 is a November

18, 2008, handwritten estimate from James in the amount of $995.00 for hanging

drywall on the basement wall and replacing studs. Exhibit 11 is a proposal dated

October 24, 2008, in the amount of $1,597.50 from Schoenbrun Landscaping, Inc. to Tuscarawas County App. Case No. 2010AP090036 13

repair and replace landscaping removed during installation for the exterior drainage

system. While Exhibit 12 is a November 21, 2008, estimate from Ohms Law Electric in

the amount of $585.00 regarding providing labor and materials to move service

equipment away from the basement wall to allow for waterproofing, Exhibit 13 is a mold

clean up proposal from In-Door Air Quality Consultants in the amount of $3,547.00. No

testimony was presented by the persons who prepared the estimates or proposals.

{¶71} Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). We find that the estimates constituted hearsay because they

were admitted to prove the truth of the matter asserted. See Noble v. Mandalin,

,

, (11th Dist. 1995). See also Clanc v. Neeley, 3rd Dist.

No. 8-89-12,

(Oct. 16, 1990). In the case sub judice the estimates

were admitted to prove appellee’s damages. There was no independent evidence with

respect to such damages. We find, therefore, that the trial court erred in awarding

appellee $6,724.50 in future economic damages.

{¶72} Appellant also argues that the trial court erred in awarding Greig

$20,000.00 for the decreased property value of his house when there was no expert

testimony supporting such award. At the bench trial, the following testimony was

adduced when Greig was asked about how the bowed wall with fortress strips affected

the value of his house:

{¶73} “A. Well, if you’re truthful and you want to sell your house you’re going to

have to disclose it and if I walk into a house and I can see that wall I’m running away

from it. I’m not buying a house with a bowed basement wall and that’s my fear. If I don’t Tuscarawas County App. Case No. 2010AP090036 14

take one of those other steps which are costly, I’m going to lose value in that house

when I got to sell it.

{¶74} “Q. And what is the value that you will lose?

{¶75} “A. I’d say about $20,000.00

{¶76} “MR. HINIG: No foundation.

{¶77} “THE COURT: I’m going to allow him as a homeowner to opine. Again,

the value or the weight to be given Rick is something you’ll argue.

{¶78} “A. I’d say at least $20,000.00, Judge.” Transcript at 104.

{¶79} “Under the owner-opinion rule, an owner of real property, by virtue of his

ownership and without qualification as an expert, is competent to testify to his property's

fair market value. * * * The rule is based on the presumption that ‘the owner of real

estate * * * possess[es] sufficient acquaintance with it to estimate the value of the

property, and his estimate is therefore received although his knowledge on the subject

is not such as would qualify him to testify if he were not the owner.’ ” (Citations omitted.)

Cincinnati v. Banks,

,

, (1st. dist. 2001). We

find, based on the foregoing, that the trial court did not err in awarding Greig $20,000.00

for the diminution in value of his house. The issue of Greig’s credibility was clearly a

matter for the trial court, as trier of fact.

{¶80} Appellant next argues that the trial court erred in awarding Greig a total of

$14,635.00 in past economic damages. Of this figure, $9,635.00 was for installation of

an exterior drainage system by Pioneer and to repair the footer drains, $5,000.00 was

for the installation of twelve fortress straps to repair the bowed wall. Tuscarawas County App. Case No. 2010AP090036 15

{¶81} Appellant argues that the $9,635.00 was to waterproof the house and

repair the footer drains and that “[n]either of these was caused by the crack in the

basement wall.” With respect to the $5,000.00 to install the fortress straps to repair the

bowed wall, appellant maintains that “[t]he clogged drains caused water to accumulate

behind the wall which in turn caused the bowing of the wall. None of that was caused by

anything that [appellant] had done or even knew about.”

{¶82} However, the evidence was clear that appellant knew about the bowed

wall and fraudulently concealed and misrepresented the same. There also was

testimony that that wall was leaking at least as of August of 2005 when Greig purchased

the same and that attempts had been made to remedy the leaking problem by caulking.

There were multiple layers of caulking at the base of the basement wall which was

drywalled over by appellant.

{¶83} Based on the foregoing, we find that the trial court did not err in awarding

Greig the $9,635.00 for installation of an exterior drainage system by Pioneer and for

repair of the footer drains and the $5,000.00 for the installation of twelve fortress straps

to repair the bowed wall.

{¶84} Appellant’s third assignment of error is, therefore, sustained in part and

overruled in part. Tuscarawas County App. Case No. 2010AP090036 16

IV

{¶85} Appellant, in his fourth assignment of error, argues that the trial court

erred in awarding Greig $15,000.00 in punitive damages. We disagree.

{¶86} The decision whether to award punitive damages is within the trial court's

discretion and, absent an abuse of discretion, the court's ruling will be upheld. See

Kemp v. Kemp,

,

,

, (5th Dist.).

Ohio law provides that an award of punitive damages is available only upon a finding of

actual malice. Berge v. Columbus Community Cable Access,

,

, (10th Dist. 1999). Actual malice, necessary for an award of

punitive damages, is (1) that state of mind under which a person's conduct is

characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for

the rights and safety of other persons that has a great probability of causing substantial

harm.” Preston v. Murty,

,

, (1987), syllabus.

{¶87} The trial court, in awarding punitive damages, found that appellant had

acted with a conscious disregard for the rights and safety of Greig and that such

conscious disregard had a great probability of causing substantial harm. We find that

the trial court’s decision was not arbitrary, unreasonable or unconscionable in view of

the fact that appellant dry walled over the bowed wall to conceal it from prospective

buyers and then misrepresented when and why he did so. As is stated above, appellant

testified that he dry walled the basement because it was the last item of a list of things

that he wanted to do to the house and testified that he did not intend to sell the house

when he put up the dry wall. There was, however, evidence adduced at trial showing Tuscarawas County App. Case No. 2010AP090036 17

that the east basement was not dry walled at the time appellant’s property was first

listed in 2004.

{¶88} Appellant’s fourth assignment of error is, therefore, overruled.

{¶89} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is affirmed in part and reversed and remanded in part.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES [Cite as Greig v. Wallick,

.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

GARY L. GREIG : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WILLIAM C. WALLICK : : Defendant-Appellant : CASE NO. 2010AP090036

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is affirmed in part and

reversed and remanded in part. Costs assessed 87% to appellant and 13% to appellee.

_________________________________

_________________________________

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JUDGES