[Cite as Gordon v. Reid, 2013-Ohio-3649.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

MARK H. GORDON                                       :

        Plaintiff-Appellant                          :      C.A. CASE NO.       25507

v.                                                   :      T.C. NO.     11CV6705

JOHN REID                                            :       (Civil appeal from
                                                             Common Pleas Court)
        Defendant-Appellee                           :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the      23rd       day of        August     , 2013.

                                            ..........

LAURENCE A. LASKY, Atty. Reg. No. 0002959, One First National Plaza, Suite 830, 130
W. Second Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

RICHARD P. ARTHUR, Atty. Reg. No. 0033580, 1634 S. Smithville Road, Dayton, Ohio
45410
      Attorney for Defendant-Appellee

JOHN REID, 1934 E. Third Street, Dayton, Ohio 45403
     Defendant-Appellee

                                            ..........

FROELICH, J.
[Cite as Gordon v. Reid, 2013-Ohio-3649.]
                {¶ 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
                                                                                            3

        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
                                                                                                 4

monetary judgment of $28,000. The amended complaint did not explain the increase in the

requested monetary judgment.

       {¶ 7}    Gordon subsequently moved for summary judgment, indicating that he had

mortgages on the properties, that the mortgagees required him to insure the properties when

Reid’s insurance lapsed, and that he was seeking reimbursement of the forced insurance

premiums and the remaining mortgage balances. Reid acknowledged that he was behind on

his principal and interest payments, but he disputed the amount owed. Reid denied that he

owed Gordon for any additional expenses. The trial court denied Gordon’s motion for

summary judgment.

       {¶ 8}    A bench trial on Gordon’s claims was held on October 4, 2012. At trial,

Gordon sought the principal and interest due on both of the land installment contracts,

insurance premiums that he paid due to Reid’s alleged failure to insure the properties, and

reimbursement of real estate taxes that he paid on the properties over the past fifteen years.

       {¶ 9}     Gordon and his accountant testified to the principal and interest due on both

properties. Gordon’s accountant provided an amortization schedule showing the amounts

due on both properties. Gordon further testified that, during the last two years, Reid’s

insurance on both properties lapsed, and Gordon’s mortgage lenders required Gordon to pay

insurance premiums as part of the escrow payment for Gordon’s mortgage loans. Gordon

acknowledged that he had mortgages on the properties, even though the land installment

contracts stated that there were no encumbrances. Gordon also testified that he had paid all

of the real estate taxes on the two properties. On cross-examination, Gordon stated that he

had never asked Reid for reimbursement of the real estate tax payments and he did not have
                                                                                              5

the real estate tax statements sent directly to Reid during the past 15 years. He explained

that he had never “really studied” the land installment contracts and “just assumed that this

was all taken care of with the monthly installments.” Gordon’s mortgage lenders paid the

real estate taxes from Gordon’s escrow accounts.          Gordon’s accountant testified that

Gordon deducted the real estate taxes on his federal income tax forms.

       {¶ 10} Reid did not dispute the amount of principal and interest that he owed.

Reid also acknowledged that he did not pay real estate taxes on the Ultimate and Willamet

properties, but he stated that Gordon told him that the real estate taxes were included “in his

payments and not to worry about it.” Reid testified that Gordon had never requested

reimbursement of the real estate taxes, either orally or in writing. On cross-examination,

Reid testified that he had managed a number of properties for other people in the past 20

years, that he had owned several other properties in the past, and that he knew that real estate

taxes needed to be paid for those other properties. As for the insurance payments, Reid

stated that the Ultimate property was always insured, and that the insurance on the Willamet

property lapsed only briefly.

       {¶ 11} On November 15, 2012, the trial court entered judgment in favor of Gordon

in the amount of $14,669.73, representing the principal and interest due on the two

properties, as stated in the amortization schedules produced at trial. The trial court denied

Gordon’s claims for unpaid real estate taxes and forced insurance payments, with the

following explanation:



               As to the real estate taxes, the agreements provided that (1) Defendant
                                                                                     6

was to pay all real estate taxes on the properties; and (2) Plaintiff was to

provide Defendant with a copy of the semi-annual property tax statement for

reimbursement or to have the semi-annual tax statement sent directly to

Defendant for payment. Here, both parties failed to satisfy their foregoing

obligations under the agreements because they mutually believed for fifteen

years that the real estate taxes were included in Defendant’s monthly

payments.     Plaintiff apparently never received separate real estate tax

statements on the properties to submit to Defendant because the real estate

taxes were included in Plaintiff’s escrow payments to his mortgage lenders.

The taxes were billed to and directly paid by the Plaintiff’s mortgage lenders

despite Plaintiff’s initial guarantees to Defendant that the properties were not

encumbered by mortgages. Consequently, Plaintiff never sought payment or

reimbursement of the taxes in fifteen years, and Defendant never provided

separate tax payments or reimbursement to Plaintiff.          Under the unique

circumstances of this case, the court finds that it would be inequitable to now

require Defendant to pay fifteen years of back real estate taxes. The court

finds that Plaintiff’s claim for payment of the real estate taxes is barred by the

doctrine of laches, as (1) fifteen years is an unreasonable delay or lapse of

time in Plaintiff’s assertion of his right to the real estate taxes under the

agreements; (2) Plaintiff failed to provide any excuse for his fifteen year

delay in seeking enforcement of his right to the real estate taxes, simply

stating that he, too, believed the taxes were included in Defendant’s monthly
                                                                                        7

       payments; (3) Plaintiff had actual or constructive knowledge of his right to

       payment or reimbursement of real estate taxes as stated in the agreements;

       and (4) Defendant was prejudiced by Plaintiff’s delay and inadvertent failure

       or otherwise to seek payment or reimbursement of the real estate taxes.

       Specifically, as to Defendant’s prejudice, not only did Plaintiff assure

       Defendant that the taxes were included in Defendant’s payments, Plaintiff

       himself, apparently overlooked his right to reimbursement of the taxes for

       fifteen years, as the taxes were never paid directly by Plaintiff but, rather,

       were incorporated into Plaintiff’s mortgage escrow accounts pursuant to

       mortgages that, at the outset, were also in violation of the land installment

       agreements.

               Finally, as to insurance, Defendant was required to maintain insurance

       coverage on the properties at all times during the continuance of the

       agreements, which Defendant admitted he failed to do, resulting in forced

       insurance policies by Plaintiff’s mortgage lenders and the consequential

       additional costs to Plaintiff, totaling $3,543.00 in insurance premiums.

       However, the forced insurance policies again resulted from mortgage

       encumbrances that were, themselves, in violation of the land installment

       agreements, and, thus, Defendant is not liable for payment on the forced

       insurance policies.

       {¶ 12} Gordon appeals from the trial court’s judgment, raising one assignment of

error. Reid did not file a responsive brief.
[Cite as Gordon v. Reid, 2013-Ohio-3649.]
                                      II. Doctrine of Laches

        {¶ 13} In his sole assignment of error, Gordon claims that the “trial court erred

when it found that the doctrine of laches excused [Reid] from having to reimburse Mr.

Gordon for the payment of real estate taxes and forced insurance premiums.”

        {¶ 14} In general, statutes of limitations “protect a party from ‘stale’ claims.” State

ex rel. Nozik v. City of Mentor, 11th Dist. Lake No. 2003-L-195, 2004-Ohio-5628, ¶ 8. The

“purpose of a statute of limitations is to promote justice by preventing surprise through the

revival of claims that parties have declined to pursue until evidence has been lost and

memories have faded.” Cavin v. Smith, 4th Dist. Lawrence No. 01CA5, 2001 WL 994117,

*2 (Aug. 24, 2001).

        {¶ 15}     The affirmative defense of laches recognizes that a claim could be “stale”

even though filed within the statute of limitations. Thirty-Four Corp. v. Sixty-Seven Corp.,

15 Ohio St.3d 350, 353, 474 N.E.2d 295 (1984). When a claim is brought within the statute

of limitations, the doctrine of laches may still bar the claim if “special circumstances” render

the delay in enforcing the claim inequitable. Id. “[I]n order to successfully invoke the

equitable doctrine of laches it must be shown that the person for whose benefit the doctrine

will operate has been materially prejudiced by the delay of the person asserting his claim.”

Id. at 354, quoting Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 (1959), paragraph three

of the syllabus.

        {¶ 16} Stated simply, laches is an equitable doctrine that bars a party from asserting

an action when there is an unexcused delay that prejudices the opposing party. Baker v.

Chrysler, 179 Ohio App.3d 351, 2008-Ohio-6032, 901 N.E.2d 875, ¶ 31 (2d Dist.). “The

elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2)
                                                                                             9

absence of an excuse for such a delay, (3) knowledge – actual or constructive – of the injury

or wrong, and (4) prejudice to the other party.” Martin Marietta Magnesia Specialties,

L.L.C. v. Pub. Util. Comm., 129 Ohio St.3d 485, 2011-Ohio-4189, 954 N.E.2d 104, ¶ 45,

citing State ex rel. Cater v. N. Olmsted, 69 Ohio St.3d 315, 325, 631 N.E.2d 1048 (1994).

Each element must be established for laches to apply.

       {¶ 17}    Whether laches should bar an action is a fact-sensitive determination.

Atwater v. King, 2d Dist. Greene No. 02CA45, 2003-Ohio-53, ¶ 28. Accordingly, we

review the trial court’s application of the doctrine of laches for an abuse of discretion. Reid

v. Wallaby’s Inc., 2d Dist. Greene No. 2011 CA 36, 2012-Ohio-1437, ¶ 34. An abuse of

discretion means “that the court’s attitude is unreasonable, arbitrary or unconscionable.”

State v. Adams, 62 Ohio St .2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 18}    Gordon claims that he did not unreasonably delay bringing his claims, that

any delay was excused, that Reid did not suffer material prejudice, and that Reid did not

have “clean hands.” We focus on whether Reid demonstrated material prejudice, as we find

this element to be dispositive.

       {¶ 19}    For purposes of the doctrine of laches, prejudice exists when the plaintiff’s

delay causes the loss of evidence helpful to the defendant’s case or when the person against

whom the claim is asserted has changed his position in reasonable reliance on the words or

conduct of the party who would enforce the claim. Reid v. Wallaby's Inc., 2d Dist. Greene

No. 2011 CA 36, 2012-Ohio-1437, ¶ 36, citing State ex rel. Donovan v. Zajac, 125 Ohio

App.3d 245, 250, 708 N.E.2d 254 (11th Dist.1998); see Atwater at ¶ 24. “The prejudice

must be material, and it may not be inferred from a mere lapse of time.” Id. at ¶ 19. The
                                                                                           10

accumulation of interest and the absence of a timely demand for payment does not constitute

material prejudice where the terms of the debt are set forth in the contract. Thirty-Four

Corp., 15 Ohio St.3d at 353, 474 N.E.2d 295.

       {¶ 20}     At trial, there was substantial evidence that Gordon knew or should have

known that he was paying real estate taxes on the properties since 1997 and that his own

actions caused his failure to seek reimbursement of those real estate tax payments from Reid.

 Gordon acknowledged at trial that he never sent Reid a request for reimbursement of the

real estate taxes, nor did he have the real estate tax statements sent directly to Reid. He

stated that he had failed to carefully read the land installment contracts and “assumed that

this was all taken care of with the monthly installments.”            Because of Gordon’s

arrangements with his mortgage lenders, the lenders paid the real estate taxes from his

escrow account. Gordon deducted the real estate taxes on his federal tax forms.

       {¶ 21} Nevertheless, Reid presented no evidence that he was materially prejudiced

by Gordon’s conduct.       Reid’s testimony emphasized that Gordon had failed to seek

reimbursement for fifteen years and that Gordon had told him that the real estate taxes were

included in his monthly payments and “not to worry about it.” Reid’s testimony reflects

that, given the lapse of time and Gordon’s assurances, he did not expect Gordon to seek

reimbursement of the real estate taxes. However, the complaint did not violate the statute

of limitations for this alleged contractual violation.

       {¶ 22}     Reid presented no argument, let alone evidence, that he lost any evidence or

changed his position in any respect due to Gordon’s failure to timely seek reimbursement of

the real estate taxes, or that he was unable to defend against Gordon’s claim due to the
                                                                                             11

passage of time. We appreciate the trial court’s conclusion that “it would be inequitable to

now require Defendant to pay fifteen years of back real estate taxes;” however, Gordon’s

delay in asserting his claim for reimbursement is not sufficient, by itself, to establish the

material prejudice required for the affirmative defense of laches. In the absence of any

evidence of material prejudice, the trial court abused its discretion in determining that laches

barred Gordon’s claim for reimbursement of real estate tax payments. Gordon’s assignment

of error as to real estate tax payments is sustained.

       {¶ 23} Gordon’s assignment of error also references the trial court’s denial of his

claim seeking reimbursement of “forced insurance premiums.”               However, Gordon’s

appellate brief only addressed the real estate tax payments. We further note that the trial

court did not reject Gordon’s claim for insurance payments based on the doctrine of laches.

Rather, the trial court denied the claim because the forced insurance policies resulted from

mortgage encumbrances that violated the land installment contracts. To the extent that

Gordon’s assignment of error challenged the trial court’s denial of his claim for

reimbursement of the insurance payments, the assignment of error is overruled.

                                        III. Conclusion

       {¶ 24} 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.

                                          ..........

FAIN, P.J. and WELBAUM, J., concur.
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Copies mailed to:

Laurence A. Lasky
Richard P. Arthur
John Reid
Hon. Mary Katherine Huffman
