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Gordon v. Reid

Court of Appeals of Ohio, Second District

August 23, 2013

MARK H. GORDON Plaintiff-Appellant
v.
JOHN REID Defendant-Appellee

Civil appeal from Common Pleas Court T.C. NO. 11CV6705

LAURENCE A. LASKY, Atty. Reg. No. 0002959, Attorney for Plaintiff-Appellant.

RICHARD P. ARTHUR, Atty. Reg. No. 0033580, Attorney for Defendant-Appellee.

JOHN REID, Defendant-Appellee.

OPINION

FROELICH, J.

(¶ 1} After a bench trial in the Montgomery County Court of Common Pleas, Mark H. Gordon was awarded $14, 669.73 for principal and interest due from John Reid on two land installment contracts. The court rejected Gordon's claims for the reimbursement of forced insurance premiums and fifteen years of real estate tax payments.

(¶ 2} Gordon appeals from the trial court's judgment, claiming that the court erred in applying the defense of laches to deny his claims for the real estates taxes and insurance. For the following reasons, the portion of the trial court's judgment that denied Gordon's claim for real estate tax payments will be reversed, and the matter will be remanded to the trial court for further consideration of that claim. In all other respects, the trial court's judgment will be affirmed.

I. Factual and Procedural History

(¶ 3} In 1997, Mark Gordon and John Reid entered into two separate land installment contracts whereby Reid purchased the properties located at 1605 Willamet Road in Kettering, Ohio, and 3321 Ultimate Way in Dayton, Ohio. Reid purchased the Willamet property for $45, 000, with a $4, 000 down payment. Reid was required to pay the $41, 000 balance at eight percent interest, with a monthly payment of $391.83. The purchase price for the Ultimate property was $28, 500, with no down payment and eight percent interest. Reid's monthly principal and interest payment for the Ultimate property was $272.36.

(¶ 4} Both contracts required Reid to maintain insurance on the property and to pay real estate taxes. The portion of the contracts regarding real estate taxes and assessments provided, in part:

Buyer shall pay all real estate taxes and assessments becoming due or payable from and/or after the date of this contract. Said taxes and assessments shall be paid by the Buyer, separate and apart from the monthly installment of principle [sic] and interest, but not in monthly installments. It will be the responsibility of the Seller to provide the Buyer with a copy of the semi-annual property tax statement, and informing the Buyer of the semi-annual property tax amount so that the Buyer can reimburse the Seller the amount of the taxes. Or if the Seller so desires, can have the semi annual tax statement sent directly to the buyer, with the buyer giving the Seller proof of payment of said taxes within 15 days after they are due and payable.

In both contracts, Gordon guaranteed that there was no mortgage encumbering the property and that he would not cause any encumbrance to be placed on the premises after the date of the contract.

(¶ 5} In September 2011, Gordon brought suit against Reid, claiming that Reid had defaulted on his payments on both properties. Gordon stated in his complaint that he had no interest in "taking the real estate back or initiating a foreclosure." Rather, he asked that "the complete unpaid balance be declared immediately due." Gordon sought a monetary judgment of $8, 409.50 for the Ultimate property and $7, 912.19 for the Willamet property, for a total of $16, 321.69, with interest. The $7, 912.19 for the Willamet property included $836 for insurance premiums that Gordon had paid due to Reid's failure to maintain insurance on that property. Gordon did not allege that he was owed any amount for real estate taxes that he had paid.

(¶ 6} On October 3, 2011, prior to the filing of an answer, Gordon filed an amended complaint incorporating the allegations in his initial complaint, but seeking a monetary judgment of $28, 000. The amended complaint did not ...


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