[Cite as Brown v. Lagrange Dev. Corp., 2015-Ohio-133.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

Sonja Brown Court of Appeals No. L-09-1099 

 

 Appellant Trial Court No. CI0200703897 

v. 

Lagrange Development Corporation, et al. DECISION AND JUDGMENT

Appellees Decided: January 16, 2015 

* * * * * 

 John A. Coble, Joseph F. Albrechta and Brad Culbert, for appellant. 

 James S. Nowak, Brian C. Kalas, Zachary M. Clark and Patricia A. 

 Wise, for appellees. 

* * * * * 

 PIETRYKOWSKI, J. 

{¶ 1} Appellant, Sonja Brown, appeals a judgment of the Lucas County Court of 

Common Pleas, journalized on February 26, 2009, after a bench trial. In the judgment, 

the trial court provided findings of fact and conclusions of law and rendered judgment in 

favor of appellees, Lagrange Development Corporation (“Lagrange”), Terry Glazer, and 

Nancy Sobecki, and against appellant on all claims asserted by appellant. 
2.

{¶ 2} The dispute between the parties arises out of appellant’s purchase of a house 

located at 52 Rockingham Avenue in Toledo, Ohio, from Lagrange in 2004. Lagrange is 

a nonprofit corporation which acquires and rehabilitates real property in the Lagrange 

neighborhood in Toledo, Ohio. Appellee Glazer was the executive director of Lagrange 

at the time. Appellee Sobecki was the housing program manager. Appellant filed suit 

against the appellees and others on May 29, 2007, on claims arising from the purchase, 

including claims asserting defective conditions of the property. The trial court dismissed 

all claims against the other defendants in the case and the case proceeded to trial on 

December 15 and 16, 2008, solely against appellees. 

{¶ 3} Appellant asserts three assignments of error on appeal: 

 Assignment of error No. 1. The trial court erred as a matter of law 

by permitting the defense of Caveat Emptor based upon the “As Is” clause 

in the contract. 

 Assignment of error No. 2. The trial court erred as a matter of law 

by finding the validity of a contract between the parties in the absence of 

agreement. 

 Assignment of error No. 3. The judgment of the trial court must be 

reversed as against the manifest weight of the evidence. 

{¶ 4} We address assignment of error No. 2 first. Appellant contends under 

assignment of error No. 2 that the trial court erred in finding that there existed a valid 

contract between Lagrange and appellant for the purchase of the property. Appellant 
3.

contends that there was no contract to purchase the property because she did not agree to 

the purchase on the terms proposed by Lagrange. 

{¶ 5} “Essential elements of a contract include an offer, acceptance, contractual 

capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation 

of mutual assent and legality of object and of consideration.” Kostelnik v. Helper, 96 

Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. Central to the analysis is that a 

contract requires a “meeting of the minds” of the parties. Noroski v. Fallet, 2 Ohio St.3d 

77, 79, 442 N.E.2d 1302 (1982). “Although the interpretation of the terms of a contract 

is undertaken as a matter of law and subject to a de novo review, the existence of a 

contract is a question for the trier of fact.” Guardian Alarm Co. v. Portentoso, 196 Ohio 

App.3d 313, 2011-Ohio-5443, 963 N.E.2d 225, ¶ 17 (3d Dist.); Gruenspan v. Seitz, 124 

Ohio App.3d 197, 211,705 N.E.2d 1255 (8th Dist.1997). 

{¶ 6} Appellate review of a trial court’s findings of fact at trial is undertaken under 

a manifest weight of the evidence standard. C.E. Morris Co. v. Foley Constr. Co., 54 

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus; Seasons Coal Co., Inc. v. Cleveland, 10 

Ohio St.3d 77, 79-80, 461 N.E.2d 1273 (1984). “Judgments supported by some 

competent, credible evidence going to all the essential elements of the case will not be 

reversed by a reviewing court as being against the manifest weight of the evidence.” 

Foley at syllabus. 

{¶ 7} The trial court found that appellant presented Nancy Sobecki a written offer 

to purchase the Rockingham Avenue house for $79,900 on July 27, 2004. Sobecki then 
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prepared a loan analysis which was required by Lagrange’s Home Committee to 

determine if appellant was financially eligible to purchase the house. Sobecki submitted 

the offer with the loan analysis for approval. 

{¶ 8} The court also found that Terry Glazer penciled in modifications to the offer, 

including increasing the purchase price to $84,200. Glazer also changed the date for 

acceptance of the offer from July 29 to August 3, 2004. Glazer initialed the changes and 

signed the revised document on July 28, 2004. The court found that Sobecki presented 

the modified offer to purchase to appellant, and that appellant initialed the document 

where the acceptance date had been changed but did not initial where the purchase price 

had been changed. Appellant also did not sign the proposed revised agreement. 

{¶ 9} The trial court treated the modified contract terms as a counteroffer, which 

appellant accepted by her conduct and performance: 

 When defendant Glazer changed material terms of plaintiff’s offer 

and initialed such changes, he effectively presented to plaintiff a 

counteroffer. Upon receipt of the counteroffer, plaintiff placed her initials 

only at the top of the contract where the newly inserted date of “8-3-2004” 

indicated the date until which the offer remained open for acceptance. 

While such action by itself, although ambiguous, does not necessarily show 

acceptance of the counteroffer, subsequent conduct by plaintiff evinces the 

intention to accept the contract as modified. On August 3, 2004, after the 

counteroffer was submitted to her, she was present and consented to Ms. 
5.

Sobecki faxing the contract and Loan Analysis form to Neighborhood 

Housing Services for the purpose of securing a mortgage. If plaintiff 

believed there was no contract, she would have no reason to pursue a 

mortgage to purchase the property. Approximately one month later 

plaintiff agreed to close on the property upon the terms as set forth in the 

modified contract and she received a deed. * * * In the instant case, 

defendants’ counteroffer was accepted by plaintiff through her conduct and 

performance. 

{¶ 10} Appellant testified that she did not agree to the change in purchase price or 

the other proposed changes to her offer to purchase. Appellant claims there is no 

evidence that she ever agreed to the proposed changes to her offer. 

{¶ 11} Appellees argue that appellant’s original proposal required changes to the 

house (adding central air conditioning) and requiring Lagrange to help pay closing costs. 

Ms. Sobecki testified that she discussed with appellant the changes proposed by 

Lagrange. 

{¶ 12} It is not necessarily required for all parties to sign a contract for a valid 

enforceable contract to exist. Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 

Ohio St.2d 147, 152-153, 375 N.E.2d 410 (1978); Hocking Valley Community Hosp. v. 

Community Health Plan of Ohio, 4th Dist. Hocking No. 02CA28, 2003-Ohio-4243, ¶ 16; 

CME Fed. Credit Union v. Stultz, 10th Dist. Franklin No. 98AP-1598, 1999 WL 

1009728, * 2, fn. 1 (Nov. 9, 1999). “In case of doubt an offer is interpreted as inviting 
6.

the offeree to accept either by promising to perform what the offer requests or by 

rendering the performance, as the offeree chooses.” Restatement of the Law 2d, 

Contracts, Section 32 (1981). “Generally conduct sufficient to show agreement, 

including performance, constitutes acceptance of an offer. Nagle Heating & Air 

Conditioning Co. v. Heskett, 66 Ohio App.3d 547, 550, 585 N.E.2d 866 (4th Dist.1990).” 

Foor v. Columbus Real Estate Pros.com, 5th Dist. Delaware No. 12 CAE 08 0063, 2013-

Ohio-2848, ¶ 24. 

{¶ 13} The counteroffer by Lagrange did not restrict the manner of acceptance. 

Under the trial court’s findings of fact, after Lagrange prepared its counteroffer, 

appellant applied for and received a loan to finance the purchase, closed on the purchase 

under the terms proposed by Lagrange, and received a deed on the property. We find 

competent, credible evidence in the record supports the trial court’s finding that 

appellant accepted the terms of Lagrange’s counteroffer by performance. 

{¶ 14} We find assignment of error No. 2 not well-taken. 

{¶ 15} Under assignment of error No. 1, appellant objects to the trial court’s 

treatment of the defense of caveat emptor and the “as is” clause in the purchase 

agreement. Appellant contends that caveat emptor is not available as a defense because 

the defects in the property were not open and discoverable but were latent. Appellant 

argues that as a result, appellees are subject to liability for claims due to nondisclosure of 

property defects. 
7.

{¶ 16} Appellees argue appellant has mischaracterized defenses arising under the 

doctrine of caveat emptor and those created by an “as is” clause in the purchase 

agreement. Appellees argue that caveat emptor and the “as is” clause present separate 

defenses, not reliant on the other, with caveat emptor providing a defense to claims as to 

patent defects and “as is” clauses providing a defense claims whether the defects are 

latent or patent. 

{¶ 17} Layman v. Binns, 35 Ohio St.3d 176, 519 N.E.2d 642 (1988), outlined the 

elements of the doctrine of caveat emptor in purchases of real property: 

 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. (Traverse v.

Long [1956], 165 Ohio St. 249, 59 O.O. 325, 135 N.E.2d 256, approved 

and followed.) Layman at syllabus. 

{¶ 18} As the elements of the defense demonstrate, caveat emptor protects against 

claims arising from conditions of the property that are “open to observation or 

discoverable upon reasonable inspection.” Loomis v. Troknya, 165 Ohio App.3d 300, 

2006-Ohio-731, ¶ 20 (6th Dist.). Where it applies, the defendant may still remain subject 

to liability for latent conditions. Stackhouse v. Logangate Property Mgt., 172 Ohio 

App.3d 65, 2007-Ohio-3171, 872 N.E.2d 1294, ¶ 18-21 (7th Dist.). 
8.

{¶ 19} The purchase agreement in this case, however, includes an “as is” clause: 

 6. Condition of Property. Except as previously disclosed in 

writing to Purchaser, Seller has no knowledge of any underground tanks, 

faulty major appliances, faulty electrical, plumbing, heating, cooling, 

sewer, septic, well or water systems, structural or chimney defects, hidden 

or latent defects (including leakage, water seepage or wall dampness in 

basement, foundation, bathroom or kitchen areas) in the Property. 

EXCEPT _____________________________Purchaser acknowledges that, 

subject to Purchaser’s inspection rights in Paragraph 8, Purchaser is 

purchasing the Property in its present “as is” condition, including any 

defects of problems specified in this Agreement or that have been otherwise 

disclosed in writing by Seller. 

{¶ 20} An “as is” clause relieves sellers from a duty to disclose latent defects and 

defeats claims of fraudulent nondisclosure whether the defects are patent or latent. Akl v. 

Maher, 6th Dist. Lucas No. L-96-125, 1996 WL 748187, *3 (Dec. 30, 1996); Stackhouse 

at ¶ 22; Felker v. Schwenke, 129 Ohio App.3d 427, 430, 717 N.E.2d 1165 (8th 

Dist.1998). Even with an “as is” clause in the sales agreement, the seller remains subject 

to liability for a claim of positive fraud, “that is, a fraud of commission rather than 

omission, such as fraudulent misrepresentation or fraudulent concealment.” Majoy v. 

Hord, 6th Dist. Erie No. E-03-037, 2004-Ohio-2049, ¶ 18; Boulton v. Vadakin, 4th Dist. 

Washington No. 07CA26, 2008-Ohio-666, ¶ 17. 
9.

{¶ 21} We find appellant’s argument that the defects were latent and that appellees 

remained subject to liability for failure to disclose latent defects is without merit. The “as 

is” clause removed any duty to disclose latent defects and acts to defeat claims of 

fraudulent nondisclosure. We address under assignment of error No. 3 whether the trial 

court erred in granting appellees judgment on appellant’s claims of fraudulent 

misrepresentation and fraudulent concealment. 

{¶ 22} We find assignment of error no. 1 not well-taken. 

{¶ 23} Under assignment of error No. 3, appellant asserts that the trial court 

judgment is against the manifest weight of the evidence. The standard of review for a 

manifest weight of the evidence challenge to a trial court verdict is the same in civil and 

criminal cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 

517, ¶ 17. Such a challenge questions whether the prevailing party met their burden of 

persuasion. Id. at ¶ 19. The analysis in State v. Thompkins, 78 Ohio St.3d 380, 678 

N.E.2d 541 (1997) applies: 

 “The [reviewing] court * * * weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the [finder of fact] clearly lost its way 

and created such a manifest miscarriage of justice that the [judgment] must 

be reversed and a new trial ordered.” (Alterations made in Tewarson.) 

Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 

750 N.E.2d 176 (9th Dist.2001). (Additional citations omitted.) 
10. 

{¶ 24} In undertaking this analysis, we give deference to the findings of the trial 

court “with the knowledge that the trial judge is best able to view the witnesses and 

observe their demeanor, gestures and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.” Seasons Coal, 10 Ohio St.3d at 80, 

461 N.E.2d 1273. 

{¶ 25} Appellant contends that the weight of the evidence established that 

Lagrange and its employees engaged in fraudulent misrepresentations of fact as to the 

condition of the property and fraudulent concealment of the conditions. The elements of 

fraud are: 

 (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 upon it, (e) justifiable reliance 

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

proximately caused by the reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 

167, 169, 462 N.E.2d 407 (1984). 

{¶ 26} Appellant contends that Lagrange offered the house for sale as “completely 

rehabilitated,” on the for sale sign posted on the property, when it was not. Lagrange also 

referred to the property as a “complete rehab” in a loan analysis form. In its judgment, 

the trial court directly addressed appellant’s contention that Lagrange fraudulently 
11. 

misrepresented that the house was completely rehabilitated. With respect to contentions 

based upon the for sale sign, the court concluded: 

 Plaintiff claims that defendants fraudulently misrepresented that the 

house was completely rehabilitated, when it was not. Plaintiff has not 

proven by a preponderance of the evidence that a sign at the front of the 

house stated it had been “completely rehabilitated.” Other than plaintiff’s 

testimony as to her recollection of the wording on the sign, there was 

nothing else presented to corroborate her statement. Plaintiff called several 

neighbors in her case-in chief, but none of them testified as to the sign 

defendants had placed at the house. 

{¶ 27} The record also discloses that Nancy Sobecki testified with respect to the 

for sale sign used at the house. Sobecki testified that Lagrange used its own signs and 

she is the person who has designed them. She testified that Lagrange had used a sign 

stating “Another home under rehab” in the past and denied use of other language on its 

signs. According to Sobecki, the language used always indicated Lagrange was involved 

in rehabbing another home in the neighborhood. 

{¶ 28} With respect to the “complete rehab” language in the loan analysis form, 

the court concluded: 

 Plaintiff cannot rely upon the wording of the Loan Analysis form, as 

that was an internal document of LDC [Lagrange] which Nancy Sobecki 

prepared for its Home Committee. Such document does not constitute a 
12. 

representation to plaintiff, and is not evidence of an intent to mislead 

plaintiff. 

{¶ 29} Nancy Sobecki testified that the loan analysis form is an internal document 

prepared on a homebuyer who requests financial assistance from Lagrange to purchase 

the home. The form was prepared by her and submitted to Lagrange’s housing 

committee for approval. Sobecki testified that the document was not intended to be given 

to appellant and that she never showed the document to appellant. 

{¶ 30} Sobecki also testified that the term “complete rehab” used on the form was 

for internal use and meant “we completed to the housing code, the City of Toledo, the 

electrical, plumbing, furnace and roof.” 

{¶ 31} The trial court also considered claims by appellant “that defendants 

committed fraud by concealing from her the conditions relating to basement flooding, 

defective wiring, and leakage from the roof and chimney.” The court found: 

 As to faulty electric components and roof or chimney issues, such 

had been inspected by the City of Toledo and had found to meet code 

requirements. Moreover, plaintiff has failed to prove a fraudulent 

concealment by defendants of such conditions. 

{¶ 32} With respect to claimed concealment of the condition of the basement, the 

court found: 

 Regarding the basement, the weight of the evidence is that the water 

problem was from heavy rains causing a sewer backup. However, there is 
13. 

insufficient evidence to find that the defendants either misrepresented the 

condition of the basement or knew of flooding problem in plaintiff’s 

basement and concealed it from her. Further, absent a fraudulent 

concealment, defendants had no duty to disclose any such condition 

because the contract contained the “as is” clause. 

{¶ 33} We have reviewed the record and find competent, credible evidence in the 

record supports the trial court’s judgment. We find no miscarriage of justice in the 

court’s resolution of the credibility of witnesses and conflicts in the evidence at trial. We 

conclude that the trial court’s judgment is not against the manifest weight of the 

evidence. 

{¶ 34} We find assignment of error No. 3 not well-taken. 

{¶ 35} Justice having been afforded the party complaining, we affirm the 

judgment of the Lucas County Court of Common Pleas. We order appellant to pay the 

costs of this appeal, pursuant to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 
14. 

 Brown v. Lagrange Dev. Corp. 

 C.A. No. L-09-1099 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, P.J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.