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Roberts v. Marks

Court of Appeals of Ohio, Third District, Henry

April 10, 2017

DAVID H. ROBERTS, PLAINTIFF-APPELLEE,
v.
JERRY A. MARKS, DEFENDANT-APPELLANT and WILLIAM R. MEYERS, DEFENDANT-APPELLEE.

         Appeal from Henry County Common Pleas Court Trial Court No. 13CV0071

          Tammy G. Lavalette and H. Buswell Roberts, Jr. for Appellant

          Albert L. Potter, II for Appellee, William R. Meyers

          OPINION

          ZIMMERMAN, J.

         {¶1} Appellant, Jerry A. (Tony) Marks ("Marks") appeals the September 26, 2016 judgment and order of the Henry County Court of Common Pleas awarding judgment in favor of William R. Meyers ("Meyers") on a breach of contract/indemnification action.

         Facts and Procedural History

         {¶2} David H. Roberts ("Roberts"), Marks, and Meyers were equal co-owners of an entity known as MRT Leasing, LLC ("MRT Leasing"). MRT Leasing constructed and owned a warehouse operation located in Henry County, Ohio. On December 29, 2005, Roberts, Marks, and Meyers entered into a purchase and sale agreement ("Roberts Agreement"), in which Marks and Meyers purchased Roberts' interest in MRT leasing. The Roberts Agreement provided that Marks and Meyers were "individually and together collectively the Purchaser" of Roberts' interest in the leasing company for the purchase price of $450, 000. The purchase contract called for an initial $45, 000 down payment, with the remaining balance to be paid over a period of 96 months, with interest set at 3.5% per annum. Marks and Meyers had a verbal agreement that Marks would make the payments to Roberts.

         {¶3} On July 30, 2009, Meyers filed an action seeking a judicial dissolution of MRT Leasing, then known as Southpoint Business Park, LLC ("Southpoint") in the trial court. Southpoint had a business loan with First Merit Bank and due to the judicial dissolution suit filed by Meyers, First Merit Bank called its note on the Southpoint property. The trial court appointed a receiver for Southpoint.

         {¶4} Shortly thereafter, Roberts filed suit against Marks and Meyers in the trial court (in a case separate from the judicial dissolution action), due to their nonpayment under the Roberts Agreement. A hearing was held in that case on September 2, 2010 revealing the balance of the debt owed (to Roberts) by Marks and Meyers to be approximately $365, 000. Neither Marks nor Meyers were aware of the amounts paid on the debt (to Roberts) by the other.

         {¶5} Thereafter, Marks and Meyers met on September 1, 2011 to discuss settlement of the lawsuits. Both parties were represented by counsel. The meeting resulted in a settlement between Marks and Meyers memorialized by a handwritten agreement (Meyers Dep. Ex. A) signed by the parties. On November 15, 2011 a written agreement, identified as the parties' Settlement Agreement ("Settlement Agreement") (Meyers Dep. Ex. D) was signed by the parties. Both agreements required Marks to pay the debt owed Roberts and to indemnify Meyers thereupon. However, the handwritten agreement did not contain the exact amount of the debt owed to Roberts, providing only that Marks was to pay the Roberts debt and indemnify Meyers therein. Finally, First Merit Bank was aware of and approved the Settlement Agreement (entered into by Marks and Meyers) and reinstated its loan to Southpoint.

         {¶6} On May 15, 2013 Roberts again filed suit against Marks and Meyers in the trial court, due to the nonpayment of the debt owed. On June 24, 2013 Meyers filed his cross-claim against Marks asserting a breach of their Settlement Agreement concerning the indemnification of the payments to Roberts. The trial court granted Roberts summary judgment against Marks and Meyers, jointly and severally, in the amount of $323, 794.90 plus interest at the rate of 3.5% per annum.

         {¶7} Meyers then moved for summary judgment on his cross-claim versus Marks for indemnification. Marks opposed the motion and filed his separate motion for summary judgment. The trial court found material issues of fact present and denied both motions. Thereafter, a bench trial on Meyers' cross-claim occurred, resulting in the trial court awarding judgment in favor of Meyers against Marks in the amount of $323, 794.90 plus interest. The trial court further granted judgment in favor of Meyers (against Marks) for $37, 000 for the amount which Meyers paid (to Roberts) after the trial court granted summary judgment on January 9, 2015. Marks appeals these judgments and the trial court's failure to grant summary judgment pursuant to his request.

         Assignments of Error

         {¶8} Marks presents the following two assignments of ...


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