Should the disclosure form have listed an conditions in the last five years when we sold our home?

Full question:

In 2005 we sold our home and the buyers filed a claim in small claims court against us stating that a leak occurred between the two bathroom walls shortly after they moved in. They did hire a professional home inspector and his report states no evidence of leaks and we were not aware of any ourselves. They are claiming that the disclosure statement is to report any leaks five years previous to present but the disclosure form states current leaks. Is that true that the disclosure is for five years previous to present? If so, where would I find that information about it?

• Category: Real Property
• Subcategory: Seller's Disclosures
• Date: 04/07/2025
• State: Ohio

Answer:

Please read the following statute and the case that I have included that interprets the statute.

§ 5302.30. Property disclosure form for residential real property transfers;
transferee's right of rescission.

(A) As used in this section:

(1) "Good faith" means honesty in fact in a transaction involving the
transfer of residential real property.

(2) "Land installment contract" has the same meaning as in section
5313.01 of the Revised Code.

(3) "Political subdivision" and "state" have the same meanings as in
section 2744.01 of the Revised Code.

(4) "Residential real property" means real property that is improved by
a building or other structure that has one to four dwelling units.

(B) (1) Except as provided in division (B)(2) of this section, this section
applies to any transfer of residential real property that occurs on or after
July 1, 1993, by sale, land installment contract, lease with option to
purchase, exchange, or lease for a term of ninety-nine years and renewable
forever. For purposes of this section, a transfer occurs when the initial
contract for transfer is executed, regardless of when legal title is transferred,
and references in this section to transfer offers and transfer agreements
refer to offers and agreements in respect of the initial contract for
transfer.

(2) This section does not apply to any transfer of residential real property
that is any of the following:

(a) A transfer pursuant to court order, including, but not limited to, a
transfer ordered by a probate court during the administration of a
decedent's estate, a transfer pursuant to a writ of execution, a transfer by a
trustee in bankruptcy, a transfer as a result of the exercise of the power of
eminent domain, and a transfer that results from a decree for specific
performance of a contract or other agreement between persons;

(b) A transfer to a mortgagee by a mortgagor by deed in lieu of
foreclosure or in satisfaction of the mortgage debt;

(c) A transfer to a beneficiary of a deed of trust by a trustor in
default;

(d) A transfer by a foreclosure sale that follows a default in the
satisfaction of an obligation secured by a mortgage;

(e) A transfer by a sale under a power of sale following a default in the
satisfaction of an obligation that is secured by a deed of trust or another
instrument containing a power of sale;

(f) A transfer by a mortgagee, or a beneficiary under a deed of trust,
who has acquired the residential real property at a sale conducted pursuant
to a power of sale under a mortgage or a deed of trust or who has acquired
the residential real property by a deed in lieu of foreclosure;

(g) A transfer by a fiduciary in the course of the administration of a
decedent's estate, a guardianship, a conservatorship, or a trust;

(h) A transfer from one co-owner to one or more other co-owners;

(i) A transfer made to the transferor's spouse or to one or more
persons in the lineal line of consanguinity of one or more of the
transferors;

(j) A transfer between spouses or former spouses as a result of a
decree of divorce, dissolution of marriage, annulment, or legal separation or
as a result of a property settlement agreement incidental to a decree of
divorce, dissolution of marriage, annulment, or legal separation;

(k) A transfer to or from the state, a political subdivision of the state,
or another governmental entity;

(l) A transfer that involves newly constructed residential real property
that previously has not been inhabited;

(m) A transfer to a transferee who has occupied the property as a
personal residence for one or more years immediately prior to the
transfer;

(n) A transfer from a transferor who both has not occupied the
property as a personal residence within one year immediately prior to the
transfer and has acquired the property through inheritance or devise.

(C) Except as provided in division (B)(2) of this section and subject to
divisions (E) and (F) of this section, every person who intends to transfer
any residential real property on or after July 1, 1993, by sale, land
installment contract, lease with option to purchase, exchange, or lease for a
term of ninety-nine years and renewable forever shall complete all applicable
items in a property disclosure form prescribed under division (D) of this
section and shall deliver in accordance with division (I) of this section a
signed and dated copy of the completed form to each prospective
transferee or prospective transferee's agent as soon as is practicable.

(D) (1) Prior to July 1, 1993, the director of commerce, by rule adopted in
accordance with Chapter 119. of the Revised Code, shall prescribe the
disclosure form to be completed by transferors. The form prescribed by the
director shall be designed to permit the transferor to disclose material
matters relating to the physical condition of the property to be transferred,
including, but not limited to, the source of water supply to the property; the
nature of the sewer system serving the property; the condition of the
structure of the property, including the roof, foundation, walls, and floors;
the presence of hazardous materials or substances, including lead-based
paint, asbestos, urea-formaldehyde foam insulation, and radon gas; and any
material defects in the property that are within the actual knowledge of the
transferor.

The form also shall set forth a statement of the purpose of the form,
including statements substantially similar to the following: that the form
constitutes a statement of the conditions of the property and of information
concerning the property actually known by the transferor; that, unless the
transferee is otherwise advised in writing, the transferor, other than having
lived at or owning the property, possesses no greater knowledge than that
which could be obtained by a careful inspection of the property by a
potential transferee; that the statement is not a warranty of any kind by the
transferor or by any agent or subagent representing the transferor in this
transaction; that the statement is not a substitute for any inspections; that
the transferee is encouraged to obtain the transferee's own professional
inspection; that the representations are made by the transferor and are not
the representations of the transferor's agent or subagent; and that the form
and the representations contained therein are provided by the transferor
exclusively to potential transferees in a transfer made by the transferor, and
are not made to transferees in any subsequent transfers.

The form shall include instructions to the transferor for completing the form,
space in which the transferor or transferors shall sign and date the form, and
space in which the transferee or transferees shall sign and date the form
acknowledging receipt of a copy of the form and stating that the transferee
or transferees understand the purpose of the form as stated thereon.

(2) Not later than January 1, 2006, the director shall revise the disclosure
form to include a statement that information on the operation and
maintenance of the type of sewage treatment system serving the property
is available from the department of health or the board of health of the
health district in which the property is located.

As used in this section, "sewage treatment system" has the same meaning
as in section 3718.01 of the Revised Code.

(E) (1) Each disclosure of an item of information that is required to be
made in the property disclosure form prescribed under division (D) of this
section in connection with particular residential real property and each act
that may be performed in making any disclosure of an item of information
shall be made or performed in good faith.

(2) If an item of information is unknown to the transferor of residential
real property at the time the item is required to be disclosed in the property
disclosure form and if the approximation is not used for the purpose of
circumventing or otherwise evading divisions (C) and (D) of this section, the
transferor may make a good faith approximation of the item of
information.

(F) (1) A transferor of residential real property is not liable in damages in a
civil action for injury, death, or loss to person or property that allegedly
arises from any error in, inaccuracy of, or omission of any item of
information required to be disclosed in the property disclosure form if the
error, inaccuracy, or omission was not within the transferor's actual
knowledge.

(2) If any item of information that is disclosed in the property disclosure
form is rendered inaccurate after the delivery of the form to the transferee
of residential real property or the transferee's agent as a result of any act,
occurrence, or agreement, the subsequent inaccuracy does not cause, and
shall not be construed as causing, the transferor of the residential real
property to be in noncompliance with the requirements of divisions (C) and
(D) of this section.

(G) Any disclosure of an item of information in the property disclosure form
prescribed under division (D) of this section may be amended in writing by
the transferor of residential real property at any time following the delivery
of the form in accordance with divisions (C) and (I) of this section. The
amendment shall be subject to this section.

(H) Except as provided in division (B)(2) of this section, every prospective
transferee of residential real property who receives in accordance with
division (C) of this section a signed and dated copy of a completed property
disclosure form as prescribed under division (D) of this section shall
acknowledge receipt of the form by doing both of the following:

(1) Signing and dating a copy of the form;

(2) Delivering a signed and dated copy of the form to the transferor or
the transferor's agent or subagent.

(I) The transferor's delivery under division (C) of this section of a property
disclosure form as prescribed under division (D) of this section and the
prospective transferee's delivery under division (H) of this section of an
acknowledgment of receipt of that form shall be made by personal delivery
to the other party or the other party's agent or subagent, by ordinary mail
or certified mail, return receipt requested, or by facsimile transmission. For
the purposes of the delivery requirements of this section, the delivery of a
property disclosure form to a prospective co-transferee of residential real
property or a prospective co-transferee's agent shall be considered delivery
to the other prospective transferees unless otherwise provided by contract.


(J) The specification of items of information that must be disclosed in the
property disclosure form as prescribed under division (D)(1) of this section
does not limit or abridge, and shall not be construed as limiting or abridging,
any obligation to disclose an item of information that is created by any other
provision of the Revised Code or the common law of this state or that may
exist in order to preclude fraud, either by misrepresentation, concealment,
or nondisclosure in a transaction involving the transfer of residential real
property. The disclosure requirements of this section do not bar, and shall
not be construed as barring, the application of any legal or equitable defense
that a transferor of residential real property may assert in a civil action
commenced against the transferor by a prospective or actual transferee of
that property.

(K) (1) Except as provided in division (K)(2) of this section but subject to
divisions (J) and (L) of this section, a transfer of residential real property
that is subject to this section shall not be invalidated because of the failure
of the transferor to provide to the transferee in accordance with division (C)
of this section a completed property disclosure form as prescribed under
division (D) of this section.

(2) Subject to division (K)(3)(c) of this section, if a transferee of
residential real property that is subject to this section receives a property
disclosure form or an amendment of that form as described in division (G)
of this section after the transferee has entered into a transfer agreement
with respect to the property, the transferee, after receipt of the form or
amendment, may rescind the transfer agreement in a written, signed, and
dated document that is delivered to the transferor or the transferor's agent
or subagent in accordance with divisions (K)(3)(a) and (b) of this section,
without incurring any legal liability to the transferor because of the
rescission, including, but not limited to, a civil action for specific performance
of the transfer agreement. Upon the rescission of the transfer agreement,
the transferee is entitled to the return of, and the transferor shall return, any
deposits made by the transferee in connection with the proposed transfer of
the residential real property.

(3) (a) Subject to division (K)(3)(b) of this section, a rescission of a
transfer agreement under division (K)(2) of this section only may occur if
the transferee's written, signed, and dated document of rescission is
delivered to the transferor or the transferor's agent or subagent within three
business days following the date on which the transferee or the transferee's
agent receives the property disclosure form prescribed under division (D) of
this section or the amendment of that form as described in division (G) of
this section.

(b) A transferee may not rescind a transfer agreement under
division (K)(2) of this section unless the transferee rescinds the transfer
agreement by the earlier of the date that is thirty days after the date upon
which the transferor accepted the transferee's transfer offer or the date of
the closing of the transfer of the residential real property.

(c) A transferee of residential real property may waive the right of
rescission of a transfer agreement described in division (K)(2) of this
section.

(d) A rescission of a transfer agreement is not permissible under
division (K)(2) of this section if a transferee of residential real property that
is subject to this section receives a property disclosure form as prescribed
under division (D) of this section or an amendment of that form as
described in division (G) of this section prior to the transferee's submission
to the transferor or the transferor's agent or subagent of a transfer offer
and the transferee's entry into a transfer agreement with respect to the
property.

(4) If a transferee of residential real property subject to this section
does not receive a property disclosure form from the transferor after the
transferee has submitted to the transferor or the transferor's agent or
subagent a transfer offer and has entered into a transfer agreement with
respect to the property, the transferee may rescind the transfer agreement
in a written, signed, and dated document that is delivered to the transferor
or the transferor's agent or subagent in accordance with division (K)(4) of
this section without incurring any legal liability to the transferor because of
the rescission, including, but not limited to, a civil action for specific
performance of the transfer agreement. Upon the rescission of the transfer
agreement, the transferee is entitled to the return of, and the transferor
shall return, any deposits made by the transferee in connection with the
proposed transfer of the residential real property. A transferee may not
rescind a transfer agreement under division (K)(4) of this section unless the
transferee rescinds the transfer agreement by the earlier of the date that is
thirty days after the date upon which the transferor accepted the
transferee's transfer offer or the date of the closing of the transfer of the
residential real property.

(L) The right of rescission of a transfer agreement described in division (K)
(2) of this section or the absence of that right does not affect, and shall not
be construed as affecting, any other legal causes of action or other
remedies that a transferee or prospective transferee of residential real
property may possess against the transferor of that property.

IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY

CHRISTOPHER C. CLARK, et al., :

Plaintiffs-Appellants, : CASE NO. CA2002-08-084

O P I N I O N

- vs -

9/2/2003
:

MATHEW ALLEN, et al., :

Defendants-Appellees. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS

Case No. 00CV56808

Plaintiffs-appellants, Christopher and Shirley Clark, appeal a decision of the
Warren County Court of Common Pleas granting judgment in favor of
defendants-appellees, Mathew and Betty Allen.

On January 12, 2000, the Clarks filed a complaint against the Allens alleging
breach of contract, fraudulent misrepresentation, fraudulent concealment,
and fraudulent inducement in connection with the Allens' sale of a residence
to the Clarks. Specifically, the Clarks complained that the Allens had
misrepresented the condition of the crawl space underneath the house.

The case was tried to the trial court on March 28, 2002. The evidence
showed that the parties entered into a contract on December 29, 1996 for
the sale of real estate located at 418 Monte Drive, Mason, Ohio. The sale
was facilitated by Roger Yost, a dual real estate agent for the parties. Yost
was Mathew Allen's former brother-in-law. Shirley Clark knew Yost and
trusted him. Except for some inconsequential communication once at the
residence and at closing, the parties never spoke to each other directly; all
communications went through Yost. Attached to the sale contract was an
Ohio Residential Property Disclosure Form filled out by Betty Allen and signed
by the Allens in December 1995. The disclosure form, which was provided
to the Clarks before closing, indicated by a box checked "yes" that the Allens
knew of "any current water leakage, water accumulation, excess dampness
or other defects with the basement/crawl space." The form did not describe
what the defects were.

The house was built in 1958 and first purchased by Mathew Allen in 1962.
In the summer of 1994, the Allens had the house inspected for termites.
Fred Goff, the termite inspector, did not find termites but found brown wood
fungi on the floor joists in the crawl space. Goff did not see any standing
water in the crawl space. He did, however, notice that the soil was damp.
The moisture in the crawl space was not significant and was from sometime
in the past. Some of the joists had damage from the moisture. Goff
informed Mathew Allen about the fungi and the moisture. At his suggestion,
the Allens had him spray the wood surfaces and install three air vents in the
crawl space. So far as the Allens were aware, Goff's treatment had solved
the problem of the fungi and moisture. Ladders stored in the crawl space
were never wet. Betty Allen never noticed any problem with the floors of
the house. As a result, the Allens checked the box on the disclosure form
about the crawl space as a means to notify potential buyers that some
work had been done there in the past. The Allens did not elaborate on the
form as to the problem as they believed it had been corrected.

The check mark on the disclosure form prompted Shirley Clark to ask Yost
about the crawl space. According to Shirley Clark, Yost told her that the
Allens had a silicone treatment done, that it was a lifetime warranty, and
that there would never be any water in the crawl space. Yost denied telling
her the crawl space had been treated with silicone or that it was a lifetime
warranty. All he knew was that the crawl space had fungi, that it was
sprayed, that three vents had been installed, and that this would solve the
problem. The crawl space was never treated with silicone. Such
treatment does not exist.

The parties' contract provided that "[i]nspections regarding the physical
material condition and use of the Real Estate shall be the responsibility of the
Buyer. Buyer is relying solely upon Buyer's examination of the Real Estate,
*** and inspections requested by the Buyer or otherwise required[.]"
Although the Clarks had the opportunity to have a whole house inspection
prior to closing, they did not request one. Likewise, although it was their
first house with a crawl space, they did not personally inspect or look at the
crawl space. Before closing, Shirley Clark visited the house four times. Each
time, the house was completely empty. The Clarks had unimpeded access
to the premises. Nothing prevented the Clarks from closely inspecting any
part of the house. Apparently, Shirley Clark did not notice any problem with
the house prior to closing.

Following the closing, the Clarks discovered the following problems: (1)
the master bedroom closet appeared crooked and had a big crack; (2) new
toe strip had been placed at the bottom of the old baseboard in the master
bedroom concealing a separation between the baseboard and subfloor
that when removed allowed one to see into the crawl space; (3) the master
bedroom was "sinking"; and (4) the entire subfloor underneath the new
linoleum in the utility room was wet and rotted. At that point in time, the
Clarks both personally inspected the crawl space. Looking with a flashlight,
Shirley Clark observed standing water, dampness, mold, and rotted beams.
Going inside the crawl space, Christopher Clark observed some "brownish"
on the joists and dampness. As a result, the Clarks had a whole house
inspection as well as an inspection by a structural engineer. The Clarks
spent over $22,000 repairing and/ or replacing the beams in the crawl space
and installing a sump pump.

By decision filed July 2, 2002, the trial court found in favor of the Allens,
stating: "We find that the [Allens] were not aware that there was serious
rot/dampness problem in the crawl space. Also they did not instruct Mr.
Yost to relay the false information to the [Clarks] nor were they aware that
he had done so.

"It is our conclusion that the [Clarks] cannot prevail here. Under the
circumstances of this case we would describe the crawl space problem as a
patent defect, i.e. one that was readily discoverable upon reasonable
inspection. In light of the warning contained in the written disclosure
statement and the fact that the [Clarks] had an opportunity to examine the
matter themselves, and the further fact that the [Clarks] made no false or
misleading statement themselves, the claim for fraud has not been
established." On appeal, the Clarks raise four assignments of error.

In their first assignment of error, the Clarks argue that the trial court issued
inconsistent findings of fact which mandate the reversal of the trial court's
decision.

We begin with the proposition that a reviewing court should presume that a
trial court's findings of fact are accurate since the trial court is best able to
view the witnesses, observe their demeanor, gestures, and voice inflections,
and use these observations in weighing the credibility of the witnesses.
Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Thus,
we accept the trial court's findings of fact unless clearly erroneous. See Willis
Refrigeration, Air Conditioning & Heating, Inc. v. Maynard (Jan. 18, 2000),
Clermont App. No. CA99-05-047.

The Clarks first take issue with the trial court's findings that (1) although
the Allens "answered 'yes' without further elaboration" on the disclosure
form as to whether they knew "of any current *** water accumulation,
excess dampness, or other defects with the *** crawl space," (2) the Allens
nevertheless "were not aware that there was serious rot/dampness
problem in the crawl space."

Upon closely reviewing the record before us, we find that these findings of
fact are supported by the record and are not inconsistent. Upon learning
about the fungi and moisture in the crawl space in 1994, the Allens had Goff
spray wood surfaces and install three air vents in the crawl space. Following
treatment, the Allens never noticed any problem with the floors. Prior to
selling the house, Mathew Allen had not been in the crawl space for 30
years. However, ladders stored in the crawl space were never wet. As a
result, the Allens believed that the fungi and moisture problems had been
remedied. Betty Allen's testimony shows that she checked "yes" on the
disclosure form regarding the crawl space not because she knew of current
problems but as a means to notify potential buyers that some work had
been done in the crawl space in the past. The Allens did not elaborate on
the form as to the warning as they believed the problem had been
corrected. Goff testified that Betty Allen did not know how to elaborate on
the warning as the past problem was merely dampness and had been
treated. We therefore find that those findings of fact do not warrant a
reversal of the trial court's decision.

The Clarks next take issue with the trial court's findings that (1) although
the court first described "the crawl space problem as a patent defect," (2) it
then stated that "[i]t might be reasonably argued that the crawl space
problem was in fact a latent defect[.]"

A patent defect is an open and observable defect that an ordinary prudent
person would discover upon reasonable inspection. Tipton v. Nuzum (1992),
84 Ohio App.3d 33, 38. The record shows that upon discovering problems
in the master bedroom after closing, Shirley Clark was able to discover the
damage in the crawl space when she looked into the space with a flashlight
but without entering. Likewise, Christopher Clark was able to discover the
damage by going into the crawl space despite his height (he is six feet five
inches tall) and the size of the crawl space (18 inches rather than the
standard 36 inches). We find that the trial court's findings are not
inconsistent. While maybe inartfully drafted, the language used by the trial
court shows that it was making an "in the alternative" argument, that
is, "assuming, arguendo, that the defect was a latent defect" type of
argument. The trial court went on to find that even if the crawl space
problem was a latent defect, the Clarks' fraudulent misrepresentation claim
failed as the Allens did not know about the problem. We therefore find that
these findings do not warrant a reversal of the trial court's decision. The
Clarks' first assignment of error is overruled.

In their second assignment of error, the Clarks argue that the trial court
erred by finding they have failed to prove their fraud claim.

In action for fraudulent misrepresentation requires proof of (1) a
representation, (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 upon it, (5)
justifiable reliance upon the representation or concealment, and (6) a
resulting injury proximately caused by the reliance. Brewer v. Brothers
(1992), 82 Ohio App.3d 148, 153, citing Burr v. Stark Cty. Bd. of Commrs.
(1986), 23 Ohio St.3d 69.

R.C. 5302.30 requires sellers of residential real estate to complete a
disclosure form which informs potential buyers of "material matters relating
to the physical condition of the property to be transferred, *** the
condition of the structure of the property, including the roof, foundation,
walls, and floors[.]" R.C. 5302.30(D). However, sellers are required to
disclose only those defects that are within their actual knowledge. Id.; Good
v. McElhaney (Sept. 30, 1998), Athens App. No. 97 CA 41, 1998 WL
682328, at *9. R.C. 5302.30(F) relieve sellers of liability for damages to
the person or property "allegedly aris[ing] from any error in, inaccuracy of,
or omission of any item of information required to be disclosed in the
property disclosure form if the error, inaccuracy, or omission was not within
the transferor's knowledge."

In addition, sellers of residential real estate have no duty to inspect their
property or otherwise acquire additional knowledge of the defects of their
property. Good at *9. The disclosure form is not a substitute for a careful
inspection by potential purchasers. Under the statute, the duty to conduct
a full inspection falls on the purchasers, not the sellers. Id.

Upon thoroughly reviewing the record, we find that the trial court properly
granted judgment in favor of the Allens. Mathew and/or Betty Allen
consistently testified that (1) following Goff's treatment of the crawl space,
they believed the problem of the fungi and moisture was corrected; (2) they
did not know about the serious rot and dampness in the crawl space; (3)
ladders stored in the crawl space were not wet; and (4) they never noticed
any problem with the floors. Consequently, Betty Allen checked the box on
the disclosure form about the crawl space to notify potential buyers that
some work had been done there in the past, not because she and her
husband knew of any current problems with the crawl space. The Allens did
not know how to elaborate, and as a result did not elaborate on the form as
to the problem as they believed it had been corrected.

Despite the language of the parties' contract warning the Clarks that they,
as buyers, were relying solely upon their examination of the real estate
and any inspections requested by them or otherwise required, and despite
the fact that this was their first house with a crawl space, the Clarks never
requested a whole house inspection before closing. Likewise, they did not
personally inspect the crawl space. The reasons given were that Shirley
Clark did not know how to get into the crawl space, that she did not intend
to go into a "real small *** cold, dark place" and that her husband was too
tall. Yet, upon discovering problems in the house after closing, Shirley Clark
was able to look into the crawl space with a flashlight and her husband was
able to get into the crawl space. This testimony shows that an ordinary
inspection that included peering into the crawl space would have revealed
the problems evident in the crawl space. The warning on the disclosure
form, however, did prompt Shirley Clark to ask Yost about the crawl space.
According to Shirley Clark, Yost told her that it had been treated with
silicone, that there was a lifetime guarantee, and that the problem had been
corrected.

The Clarks argue that the Allens committed fraud by actively concealing the
crawl space damage. Specifically, the Clarks point to the following
measures: (1) a toe strip which looked new had been placed at the bottom
of the old baseboard in the master bedroom to conceal a separation
between the baseboard and subfloor that when removed allowed one to see
into the crawl space; (2) someone had applied a yellow foam in an effort to
close the foregoing separation; (3) the new linoleum in the utility room was
not glued but simply laid on the floor; and (4) the entire subfloor underneath
the new linoleum in the utility room was wet and rotted.

Betty Allen testified that (1) the toe strip was installed in the master
bedroom several years before they sold the house to the Clarks; (2) the
toe strip was installed because it looked better with it; (3) she has never
seen the foam and does not know how it ended up behind the baseboard;
(4) the linoleum in the utility room was replaced six years before the sale
because a puppy had chewed the old linoleum; and (5) the new linoleum did
not need to be glued as it was held down by a washer and other items in the
utility room. The Allens denied taking the foregoing measures in anticipation
of selling the house. The record shows that Betty Allen provided different
dates at trial and at her deposition regarding the linoleum and toe strip.
However, when confronted at trial as to the conflicting dates, each time she
explained when her testimony at trial was correct and when her testimony
at deposition was correct.

At trial, Christopher Clark acknowledged that (1) although damp, the crawl
space had no standing water when he looked into it even though it had
rained a lot; (2) one could see into the crawl space in the bedroom only
after removing the baseboard, the toe strip, and the foam; and (3) one
could see the damage to the subfloor in the utility room only after the upper
layer of the floor was removed.

Michael Montgomery, a structural engineer, testified that the crawl space
was inspected for the Clarks in July 1997 (thus after closing) and again in
July 2001. Between the two inspections, a vapor barrier had been
installed and some of the joists had been replaced. Yet, the crawl space
was still damp. The joists that had not been replaced were rotted.
Montgomery testified that (1) there was some extensive damage to the
floor framing from moisture collection over 50 years, (2) moisture typically
builds up when there is no vapor barrier in the crawl space, and (3) had the
house been built originally with a vapor barrier, most of the repairs to the
crawl space would not have been necessary. However, it was not typical to
put a vapor barrier in houses with a crawl space built in the 1950s.

Larry Ralph, whose company did some repairs to the crawl space, testified
that the crawl space had rot, extreme at some places, mold, and mildew,
and that all of the joists had some water damage. Ralph stated that the
house had had a drainage problem from the time it was first built. Ralph
further stated that the lack of a drainage system and the lack of evaporation
control were typical for a house built in the 1950s. Nevertheless, asked
whether the Allens should have been aware that there was moisture in the
crawl space before they sold the house to the Clarks, Ralph replied "I don't
see how anyone could've lived in the home and not known [sic]."

Upon reviewing the record, we find that there is no evidence that the Allens
concealed the existence of the damage in the crawl space for the purpose of
misleading the Clarks. There is no evidence that the Allens made any false
representations to the Clarks, including on the disclosure form. There is no
evidence that the Allens knew that the treatment performed by Goff in the
crawl space was inadequate or had been unsuccessful. We are mindful of
Ralph's statement that the Allens should have known that the crawl space
had moisture problems. Ralph's opinion, however, does not reveal that the
Allens had actual knowledge of the moisture problems in the crawl space or
that they purposely misrepresented or concealed them. See Yahner v.
Kerlin, Cuyahoga App. No. 82447, 2003-Ohio-3967; Osinski v. Kornja (Feb.
19, 1998), Cuyahoga App. No. 72129. The case was tried to the trial court
which was best able to view the witnesses, observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the
credibility of the witnesses. Seasons Coal Co., Inc., 10 Ohio St.3d at 80.
We therefore find that the trial court did not err by finding the Clarks had
failed to prove their fraud claim. The Clarks' second assignment of error is
overruled.

In their third assignment, the Clarks argue that the trial court erred when,
pursuant to R.C. 4735.68(B), it found the Allens not liable for Yost's
representations to the Clarks regarding the crawl space. The trial court
found that since the Allens did not know about Yost's false statements, R.C.
4735.68(B) protected them from liability. The Clarks assert that because
Yost was a dual agent, the trial court should have first considered R.C.
4735.68(A).

We begin by noting that the record supports the trial court's finding that the
Allens did not know about Yost's silicone and lifetime warranty
representations to the Clarks. There is also no evidence that the Allens told
Yost that the crawl space had been treated with silicone or that the
treatment had a lifetime warranty.

Revised Code 4735.68 governs the liability of a real estate agent and his or
her client and states that:

"(A) A licensee [i.e., a real estate agent] is not liable to any party for false
information that the licensee's client provided to the licensee and that the
licensee in turn provided to another party in the real estate transaction,
unless the licensee had actual knowledge that the information was false or
acted with reckless disregard for the truth.

"(B) No cause of action shall arise on behalf of any person against a client
for any misrepresentation a licensee made while representing that client
unless the client had actual knowledge of the licensee's misrepresentation."

We agree with the trial court that pursuant to R.C. 4735.68(B) the Allens
are not liable for Yost's representations to the Clarks regarding the crawl
space. As properly found by the trial court, the record shows that the Allens
did not know about Yost's silicone and lifetime warranty representations to
the Clarks. R.C. 4735.68(A), in turn, clearly applies to a situation where a
licensee is sued and where, inter alia, the licensee's client provided false
information to the licensee. As previously noted, there is no evidence that
the Allens told Yost that the crawl space had been treated with silicone or
that the treatment had a lifetime warranty. In addition, although Yost was a
dual agent who as a result, was a fiduciary of both parties and required to
act in the interest of both clients, R.C. 4735.62, Allison v. Cook (2000), 139
Ohio App.3d 473, 487, the Clarks did not file a complaint against him. It
follows that R.C. 4735.68(A) is not applicable in the case at bar. The Clarks'
third assignment of error is overruled.

In their fourth assignment of error, the Clarks argue that the trial court's
decision is against the manifest weight of the evidence.

App.R. 16(A)(7) requires that an appellant's brief contain the contentions of
the appellant with respect to each issue presented for review and the
reasons in support of the contentions, with citations of the authorities,
statutes, and parts of the record on which appellant relies. This court may
disregard an assignment of error if a party fails to argue an assignment of
error as required under App.R. 16(A)(7). App.R. 12(A)(2); Meerhoff v.
Huntington Mtge. Co. (1995), 103 Ohio App.3d 164, 169. The Clarks not
only failed to cite any legal authority supporting their claim under this
assignment of error, they also failed to provide an argument in support of
their claim. Accordingly, the Clarks' fourth assignment of error is overruled.

Judgment affirmed.