Brown v. Burnett

Citation: 2020 Ohio 297Docket: 2019-CA-57

Court: Ohio Court of Appeals; January 30, 2020; Ohio; State Appellate Court

Original Court Document: View Document

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Patricia A. Brown appealed a jury verdict that rejected her claims against Harlan and Mary Burnett regarding the sale of a property containing mold. Brown argued that the trial court erred by upholding a magistrate's decision that barred her from presenting expert testimony about the mold's age, which could indicate the Burnetts' knowledge of the issue. The court found that while Brown's experts were qualified to discuss mold, they failed to provide relevant testimony about when the mold was present, making any potential error harmless. The magistrate also acted within its discretion by allowing lay opinion testimony from a witness for the Burnetts. Consequently, the trial court's judgment was affirmed.

The case originated from the Burnetts selling their home, which they had lived in since its construction in 1994, without using a realtor. They signed a property disclosure form stating they were unaware of any water-related issues. Prior to closing, Brown had a home inspection that found no evidence of water intrusion or mold. After the closing, she delayed moving in to renovate the property.

On July 30, 2012, carpet installation revealed water stains and black marks on the laminate flooring, indicating moisture issues. Further investigation uncovered mold within the walls and additional discoloration around the house. In August 2012, Bruce Stege from Advantage Ecological Solutions conducted air quality testing and advised remediation for the mold. On August 21, 2012, civil structural engineer John Geiger inspected the property, identifying significant moisture issues, lack of weep holes, sinking ground near the foundation, and poor construction practices from 1994 that led to condensation and moisture accumulation over 18 years.

After Brown reported the issue, her insurance provider, Westfield, hired structural forensic engineer Leonard Rudnick, who concluded that improper installation of the brick veneer caused water infiltration, necessitating major reconstruction and mold remediation. In September 2012, contractor Jeffrey Testerman confirmed that the brick needed removal to access the wall cavities, along with the OSB board and insulation, leading to a complete re-bricking of the home. Airway Construction carried out this extensive work for $85,000.

Brown subsequently filed a lawsuit against the Burnetts, initially dismissed without prejudice and refiled in March 2015, alleging failure to disclose significant defects and awareness of the mold. After the Burnetts' motion for summary judgment was overruled, the case proceeded to trial. In August 2016, the Burnetts sought to limit the testimony of Brown's expert witnesses through a motion in limine, which was partially granted. The jury ultimately ruled in favor of the Burnetts, and after Brown's objections were dismissed by the trial court, the case was concluded.

Brown's appeal was initially dismissed due to the absence of a final appealable order related to issues in the judgment entry. Following further proceedings, the trial court issued another entry, which was also rejected, leading to another dismissal of the appeal. Brown's First Assignment of Error asserts that the trial court incorrectly upheld the magistrate's ruling that limited her ability to present expert testimony regarding mold, which she contends impacted the jury's verdict and her claims. The magistrate had ruled that three of Brown’s experts could only provide eyewitness testimony about mold, while one expert was deemed qualified to offer opinions based on specialized knowledge.

Before considering the merits of Brown's claim, the Burnetts argued for a plain error standard of review due to Brown's lack of objection to the magistrate's ruling. However, it was noted that the law allows for the admissibility of evidence to be reconsidered during trial, and for an objection to be preserved for appeal, the aggrieved party must attempt to introduce the evidence. Brown successfully proffered the contested evidence during trial and subsequently filed objections after the trial concluded. Therefore, the standard for reviewing the evidence admission will follow normal procedural guidelines rather than a plain error standard.

Evid. R. 702 outlines the criteria for a witness to testify as an expert, requiring that the testimony addresses matters beyond lay knowledge, the witness possesses relevant qualifications, and the testimony is based on reliable information. When the testimony involves procedures or tests, reliability hinges on the objective verifiability of the underlying theory, proper design of the procedure, and accurate execution. Courts are encouraged to admit expert testimony if relevant and compliant with Evid. R. 702, with a review standard for evidentiary issues being abuse of discretion, characterized by unreasonable, arbitrary, or unconscionable decisions.

The Daubert ruling establishes that trial judges must ensure expert testimony is grounded in a reliable foundation and is pertinent to the case. This gatekeeping responsibility extends to all expert testimony, with judges permitted to consider Daubert factors, including testability of the theory, peer review status, error rates, and general acceptance, although these factors are not rigidly applied. The test for reliability is flexible, allowing courts to use discretion in determining relevance and applicability of the factors.

The trial court allowed some expert testimony regarding mold, restricting three experts to discussing its presence within wall cavities while permitting one expert, Stege, to testify more broadly, provided his statements were not framed as possibilities. The case against the Burnetts involves claims of failing to disclose water intrusion and mold to Brown. Under common law, the doctrine of caveat emptor protects sellers from liability for structural defects that are observable or discoverable through reasonable inspection, provided the buyer had an opportunity to examine the property and there was no vendor fraud. 

Fraud can be alleged when a vendor fails to disclose latent material facts that are not readily observable. The elements of fraud include a material misrepresentation, made knowingly or recklessly, with intent to mislead, resulting in justifiable reliance and injury. Statutory liability under R.C. 5302.30(D)(1) requires sellers of residential real estate to provide a disclosure form detailing material property conditions, including known defects. Disclosures must be made in good faith, defined as honesty in transactions. However, sellers are not liable for nondisclosure of matters outside their actual knowledge. The seller’s responses on the disclosure form reflect their knowledge and may serve as the basis for a fraud claim if there is a discrepancy between their representations and the property's true condition. Sellers must act in good faith but are not required to speculate beyond their actual knowledge.

Sellers are not obligated to disclose latent defects they do not know about under common law or R.C. 5302.30, as established in McCoy v. Good. The critical question was whether the Burnetts were aware of latent defects, specifically mold resulting from water intrusion. Fraudulent conduct requires direct evidence or reasonable inferences from established facts, as highlighted in Doyle v. Fairfield Machine Co.

The Burnetts denied any knowledge of mold and provided no direct evidence confirming they were aware of it. Brown attempted to establish the Burnetts' actual knowledge through expert testimony and inferences. Testimony revealed that the Burnetts had replaced their carpet around 2004 without evidence of visible mold. In 2008, laminate replaced the carpet in a front bedroom, and subsequent installations in other bedrooms in 2009 and 2010 did not reveal any prior mold issues, despite some sanding of the floor observed during installation.

In July 2012, Brown’s carpet installer discovered stains and discolorations on the subfloor, suggesting prior issues that could imply the Burnetts were aware of water intrusion problems before selling. The magistrate noted that Brown’s experts' testimony regarding mold was limited to their observations of mold in wall cavities. Geiger, a civil structural engineer, testified that he had encountered numerous water intrusion and mold issues in his career, and upon inspection in August 2012, he identified significant mold and moisture in the home, attributing the problems to poor construction, particularly the absence of weep holes. He indicated that the moisture issues had progressively worsened over time.

Brown presented Geiger as a qualified witness regarding the age of mold but did not specify Geiger's opinion on the matter. The proffer indicated that Geiger's qualifications stemmed from his experience and education, allowing the jury to weigh his testimony. Under Evid. R. 103(A), the admission or exclusion of evidence must affect a substantial right of the party; thus, a clear proffer is necessary for meaningful review. If evidence is excluded without a detailed proffer, any challenge is waived, as demonstrated in State v. Tyra. 

During his deposition, Geiger acknowledged he lacked training in determining when mold first appeared in a house and stated that while he could identify mold, he could not provide an opinion on how long it had been present. This admission highlighted a critical issue in the case, as Geiger's qualifications did not extend to offering an opinion about the mold's duration. Consequently, the magistrate's restriction on Geiger's testimony was deemed an error; however, it was ultimately irrelevant because Geiger could not opine on the mold's age. 

Brown's subsequent expert, John Testerman, a building contractor, visited the site multiple times and testified about repairs needed and associated costs, noting that sanding on the master bedroom subfloor occurred post-construction.

Brown objected to the Court’s rulings regarding John Testerman's testimony about mold age, asserting Testerman's qualifications based on his involvement in over 25 mold remediation cases. However, beyond general assertions, Brown failed to provide specifics for review. During his deposition, Testerman stated he could not determine the duration of mold growth due to various influencing factors and indicated that he would only opine on the cause of the mold, not its timeline. Testerman could not specify when mold began to form in different areas of the house and admitted he had no scientific basis for establishing a timeline of mold appearance. He believed mold had existed for several years, inferring that the flooring installers must have been aware of it, but this belief lacked supporting evidence.

Leonard Rudnick, another expert, testified about mold indications in photographs of the property but was restricted from commenting on specific discolorations after a defense objection. He confirmed the presence of mold in various areas and opined that water damage resulted from improper brick veneer installation, recommending major reconstruction and further testing by an architect to address mold remediation.

Rudnick, a qualified expert with extensive experience in structural forensic engineering and mold investigations, has conducted approximately 17,000 property damage assessments and has been deposed around 50 times. He acknowledges that while laboratory tests are the definitive method for identifying mold, he can provide opinions based on his experience with a reasonable degree of engineering certainty. However, the court emphasizes that the reliability of expert testimony is flexible and must be assessed case-by-case, as established in Kumho Tire Co. and Valentine v. Conrad, which stipulate that experience alone does not guarantee legal reliability.

In his testimony, Rudnick claims he can estimate the age of mold based on his experience. However, the proffered testimony lacks specific details regarding the age of the mold, which is essential for a meaningful review. Rudnick states that mold growth likely began 18 years ago, gradually worsening over time, but he is unable to provide a precise timeframe or certainty about its development. He indicates that the mold would not have formed within the past year, suggesting it may have developed earlier, but he cannot confirm this.

Ultimately, the magistrate's decision to allow testimony about mold observations outside interior wall cavities is noted, but the primary concern remains the inability of witnesses to specify how long the mold had been present on observable surfaces, which was the central issue in Brown's appeal.

The testimony of expert Bruce Stege indicated that mold was present on the basement subfloor as of August 2011, suggesting that mold existed in the home prior to that date. Although he did not find mold on the master bedroom floor, he observed water damage and mold on the wall sheathing, which he believed contributed to the basement mold. While acknowledging potential errors in the proceedings, the court determined that any such errors were not materially prejudicial and did not warrant disturbing the verdict. The court emphasized that substantial justice had not been compromised, as the experts could not definitively link the mold's presence to a specific time when the Burnetts would have been aware of it.

In Brown’s Second Assignment of Error, he claimed the trial court improperly allowed the Burnetts to present testimony regarding the age of water stains in the master bedroom, which he argued adversely affected the jury’s decision. Testimony from John Eben, the Burnetts’ son-in-law, revealed that he had not known of any water stains prior to Brown's inquiry and observed that the stains appeared fresh. Brown objected to this testimony, but the magistrate overruled the objection. The court acknowledged some inconsistency in allowing the Burnetts' witness to testify about the stains while denying Brown's experts the opportunity to speak on the age of the mold, indicating a belief in equitable treatment of evidence.

The error identified was not in allowing Eben to express his opinion but in restricting Brown's experts from testifying about mold outside of interior wall cavities, which was deemed a non-relevant error. Under Evid. R. 701, lay witness opinion testimony must be based on firsthand sensory knowledge and should assist in understanding the testimony or determining a fact in issue. Trial courts have significant discretion in admitting such testimony, and this discretion is evaluated for abuse, defined as unreasonable or arbitrary actions.

The magistrate did not abuse her discretion regarding Eben's testimony, which was based on his perception and contributed to the factual determination of mold presence in the property. Evidence presented by Brown indicated that mold conditions existed since the property's improper construction, with estimates suggesting mold was present before August 2011. Although the Burnetts had possession then, there was no proof of their actual knowledge of the mold's existence. Brown's argument relied on inferring that the Burnetts must have been aware of a water problem due to flooring replacement during potential mold presence, making Eben's testimony relevant.

Though some experts’ evidence from Brown was excluded, this was determined to be harmless to the case's overall issue. Regarding surprise, Eben was listed as a witness in the Burnetts’ pretrial statement, allowing Brown the opportunity to depose him. The Burnetts did not qualify Eben as an expert, nor was the jury instructed as such, ensuring his testimony did not receive undue emphasis. Consequently, all of Brown's assignments of error were overruled, and the trial court's judgment was affirmed.