[Cite as Suermondt v. Lowe, 2011-Ohio-5752.]
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARGARET SUERMONDT, JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant, Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. 10-CA-2 DUANE M. LOWE ET AL.,
Defendants-Appellees. OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. CV-02-104
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 3, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DANIEL G. PADDEEN LEWIS M. TINGLE Tribbie, Scott, Plummer & Padden 138 North Seventh Street 139 West 8th Street Cambridge, Ohio 43725 P.O. Box 640 Cambridge, Ohio 43725 Morgan County, Case No. 10-CA-2 2
Hoffman, P.J.
{¶ 1} Plaintiff-appellant Margaret Suermondt appeals the August 23, 2010
Decision: Judgment Entry of the Morgan County Court of Common Pleas, which
rendered judgment in favor of defendants-appellees Duane M. Lowe et al. and against
Appellant, following this Court’s remand in Suermondt v. Lowe, Morgan App. No. 05-11,
2006-Ohio-224.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On July 9, 2002, Appellant filed an action against her uncle, Appellee
Duane M. Lowe and his wife, Appellee Carol Sue Lowe. Therein, Appellant asserted
she was entitled to recover certain real property, known as “the 18-acre tract,” which
was formerly part of the “Gregg Farm.” Appellant sought to quiet title to the 18-acre tract
and sought other relief, including an order requiring Appellees to vacate the tract.
Appellees filed a counterclaim, contending if Appellant prevailed, they would be entitled
to a portion of the purchase price paid by Appellant, specifically $25,000, as reasonable
compensation for their 18 acres.
{¶ 3} The trial court conducted a one-day trial to the bench on October 21,
2004. The following evidence was adduced.
{¶ 4} Mildred Lowe, now deceased, was the grandmother of Appellant and the
mother of Appellee Duane Lowe. Mildred Lowe was the owner of the “Gregg Farm”
which consisted of approximately 204 acres. On or about October 1, 1991, Mildred
Lowe gave a written option to purchase real estate to Appellant. This option granted
Appellant the exclusive right to purchase the Gregg Farm for the price of $150,000. The
Gregg Farm was described in the option to purchase, and by its express terms, the Morgan County, Case No. 10-CA-2 3
option could not be exercised prior to the expiration of six months following the death of
Mildred Lowe. The option was filed for record with the Morgan County Recorder almost
6 years later on May 8, 1997, at 10:05 A.M.
{¶ 5} Also, on May 8 1997, Mildred Lowe entered into a written contract for sale
of real estate with Appellee Duane Lowe, whereby Mildred Lowe agreed to sell a portion
of the Gregg Farm to Appellees, which was described by reference to landmarks and
not by precise metes and bounds. This property was referred to as the “18-acre tract”
throughout this action. This contract was filed for record with the Morgan County
Recorder on May 8, 1997, at 1:57 P.M.
{¶ 6} On June 20, 1997, the sale between Mildred Lowe and Appellees was
closed in the offices of the attorney who represented Mildred Lowe. The attorney had
knowledge of the existence of Appellant's option and claimed he informed Appellee
Duane Lowe of that fact sometime prior to the actual closing.
{¶ 7} As part of the closing procedure, a written amendment to the contract for
sale of the real estate, which the attorney had previously prepared, was signed by
Mildred Lowe and Appellee Duane Lowe. The amendment expressly recited, inter alia,
the existence of the recorded option to Appellant, which option included the real estate
being sold. The amendment also provided Mildred Lowe would deliver only a quit-claim
deed rather than a general warranty deed as was provided for in the original contract.
{¶ 8} Mildred Lowe and Appellee Duane Lowe completed the closing on June
20, 1997. Mildred Lowe executed two quit-claim deeds for the parcels comprising the
18-acre tract, and Appellees entered possession of said real estate. The deeds were Morgan County, Case No. 10-CA-2 4
subsequently filed for record with the Morgan County Recorder on June 25, 1997.
Appellees used the land for their horses.
{¶ 9} Although requested she give her consent to the sale of the 18-acre parcel
to Appellees, Appellant refused to do so. Appellant testified she never consented or
agreed to the proposed sale. In Appellant's opinion, the 18-acre tract was part of the
Gregg Farm and was included in the option given to her from Mildred Lowe. Appellant
asserted she did not wish to give up any of her rights under the option.
{¶ 10} On July 18, 1997, Mildred Lowe signed an affidavit of facts relating to title,
pursuant to R.C. 5301.252. In that affidavit, Mildred reaffirmed, by means of the option
dated October 1, 1991, she granted to Appellant the right to purchase the Gregg Farm
in its entirety for the total purchase price of $150,000, exercisable upon her death, but
not sooner than six months following that event. The affidavit was filed for record on
July 21, 1997, with the Morgan County Recorder. The affidavit makes no mention of the
18-acre tract to Appellees as being excepted from the option or otherwise.
{¶ 11} According to Appellant, Mildred Lowe subsequently asked Appellant if she
would buy the Gregg Farm from her while she was still living rather than waiting until
after her death, and Appellant agreed to do so. On August 31, 2000, Mildred Lowe and
Appellant went to the office of Attorney Kevin Sykes, who represented Mildred Lowe
with regard to the sale of the Gregg Farm to Appellant. Appellant signed an affidavit of
facts relating to title, pursuant to R.C. 5301.252, which had been prepared by Sykes. In
the affidavit, appellant stated that she was then exercising her option to purchase the
Gregg Farm during the lifetime of Mildred Lowe with Mildred's consent. Appellant further
stated in her affidavit it was her specific intent that her acquisition of the remainder of Morgan County, Case No. 10-CA-2 5
the Gregg Farm from Mildred Lowe, exclusive of the 18-acre tract, would not result in
any merger or estoppel to extinguish her rights under the 1991 option relating to the 18-
acre tract and her exercise of the option covered the entire Gregg Farm, including the
18-acre tract conveyed in 1997 to Appellees. The affidavit was filed for record on
September 1, 2000, with the Morgan County Recorder. According to Appellant, Mildred
Lowe was present when Appellant signed the affidavit and she voiced no objection.
Mildred Lowe returned the following day, September 1, 2000, to Sykes's office and
signed the deed conveying the remaining 186 acres of the Gregg Farm to Appellant.
{¶ 12} On September 1, 2000, Mildred Lowe executed and delivered Appellant a
general-warranty deed. By its language, it conveyed the remaining acreage of the
Gregg Farm, exclusive of the 18-acre tract and consisting of 186 acres more or less.
The warranty deed recited the property conveyed was subject to all easements,
conditions, covenants, reservations, revertors, and other liens and/or encumbrances, if
any, of record and the conveyance was made pursuant to the 1991 option.
{¶ 13} Following the closing on September 1, 2000, appellant resided with her
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[Cite as Suermondt v. Lowe, 2011-Ohio-5752.]
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARGARET SUERMONDT, JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant, Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. 10-CA-2 DUANE M. LOWE ET AL.,
Defendants-Appellees. OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. CV-02-104
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 3, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DANIEL G. PADDEEN LEWIS M. TINGLE Tribbie, Scott, Plummer & Padden 138 North Seventh Street 139 West 8th Street Cambridge, Ohio 43725 P.O. Box 640 Cambridge, Ohio 43725 Morgan County, Case No. 10-CA-2 2
Hoffman, P.J.
{¶ 1} Plaintiff-appellant Margaret Suermondt appeals the August 23, 2010
Decision: Judgment Entry of the Morgan County Court of Common Pleas, which
rendered judgment in favor of defendants-appellees Duane M. Lowe et al. and against
Appellant, following this Court’s remand in Suermondt v. Lowe, Morgan App. No. 05-11,
2006-Ohio-224.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On July 9, 2002, Appellant filed an action against her uncle, Appellee
Duane M. Lowe and his wife, Appellee Carol Sue Lowe. Therein, Appellant asserted
she was entitled to recover certain real property, known as “the 18-acre tract,” which
was formerly part of the “Gregg Farm.” Appellant sought to quiet title to the 18-acre tract
and sought other relief, including an order requiring Appellees to vacate the tract.
Appellees filed a counterclaim, contending if Appellant prevailed, they would be entitled
to a portion of the purchase price paid by Appellant, specifically $25,000, as reasonable
compensation for their 18 acres.
{¶ 3} The trial court conducted a one-day trial to the bench on October 21,
2004. The following evidence was adduced.
{¶ 4} Mildred Lowe, now deceased, was the grandmother of Appellant and the
mother of Appellee Duane Lowe. Mildred Lowe was the owner of the “Gregg Farm”
which consisted of approximately 204 acres. On or about October 1, 1991, Mildred
Lowe gave a written option to purchase real estate to Appellant. This option granted
Appellant the exclusive right to purchase the Gregg Farm for the price of $150,000. The
Gregg Farm was described in the option to purchase, and by its express terms, the Morgan County, Case No. 10-CA-2 3
option could not be exercised prior to the expiration of six months following the death of
Mildred Lowe. The option was filed for record with the Morgan County Recorder almost
6 years later on May 8, 1997, at 10:05 A.M.
{¶ 5} Also, on May 8 1997, Mildred Lowe entered into a written contract for sale
of real estate with Appellee Duane Lowe, whereby Mildred Lowe agreed to sell a portion
of the Gregg Farm to Appellees, which was described by reference to landmarks and
not by precise metes and bounds. This property was referred to as the “18-acre tract”
throughout this action. This contract was filed for record with the Morgan County
Recorder on May 8, 1997, at 1:57 P.M.
{¶ 6} On June 20, 1997, the sale between Mildred Lowe and Appellees was
closed in the offices of the attorney who represented Mildred Lowe. The attorney had
knowledge of the existence of Appellant's option and claimed he informed Appellee
Duane Lowe of that fact sometime prior to the actual closing.
{¶ 7} As part of the closing procedure, a written amendment to the contract for
sale of the real estate, which the attorney had previously prepared, was signed by
Mildred Lowe and Appellee Duane Lowe. The amendment expressly recited, inter alia,
the existence of the recorded option to Appellant, which option included the real estate
being sold. The amendment also provided Mildred Lowe would deliver only a quit-claim
deed rather than a general warranty deed as was provided for in the original contract.
{¶ 8} Mildred Lowe and Appellee Duane Lowe completed the closing on June
20, 1997. Mildred Lowe executed two quit-claim deeds for the parcels comprising the
18-acre tract, and Appellees entered possession of said real estate. The deeds were Morgan County, Case No. 10-CA-2 4
subsequently filed for record with the Morgan County Recorder on June 25, 1997.
Appellees used the land for their horses.
{¶ 9} Although requested she give her consent to the sale of the 18-acre parcel
to Appellees, Appellant refused to do so. Appellant testified she never consented or
agreed to the proposed sale. In Appellant's opinion, the 18-acre tract was part of the
Gregg Farm and was included in the option given to her from Mildred Lowe. Appellant
asserted she did not wish to give up any of her rights under the option.
{¶ 10} On July 18, 1997, Mildred Lowe signed an affidavit of facts relating to title,
pursuant to R.C. 5301.252. In that affidavit, Mildred reaffirmed, by means of the option
dated October 1, 1991, she granted to Appellant the right to purchase the Gregg Farm
in its entirety for the total purchase price of $150,000, exercisable upon her death, but
not sooner than six months following that event. The affidavit was filed for record on
July 21, 1997, with the Morgan County Recorder. The affidavit makes no mention of the
18-acre tract to Appellees as being excepted from the option or otherwise.
{¶ 11} According to Appellant, Mildred Lowe subsequently asked Appellant if she
would buy the Gregg Farm from her while she was still living rather than waiting until
after her death, and Appellant agreed to do so. On August 31, 2000, Mildred Lowe and
Appellant went to the office of Attorney Kevin Sykes, who represented Mildred Lowe
with regard to the sale of the Gregg Farm to Appellant. Appellant signed an affidavit of
facts relating to title, pursuant to R.C. 5301.252, which had been prepared by Sykes. In
the affidavit, appellant stated that she was then exercising her option to purchase the
Gregg Farm during the lifetime of Mildred Lowe with Mildred's consent. Appellant further
stated in her affidavit it was her specific intent that her acquisition of the remainder of Morgan County, Case No. 10-CA-2 5
the Gregg Farm from Mildred Lowe, exclusive of the 18-acre tract, would not result in
any merger or estoppel to extinguish her rights under the 1991 option relating to the 18-
acre tract and her exercise of the option covered the entire Gregg Farm, including the
18-acre tract conveyed in 1997 to Appellees. The affidavit was filed for record on
September 1, 2000, with the Morgan County Recorder. According to Appellant, Mildred
Lowe was present when Appellant signed the affidavit and she voiced no objection.
Mildred Lowe returned the following day, September 1, 2000, to Sykes's office and
signed the deed conveying the remaining 186 acres of the Gregg Farm to Appellant.
{¶ 12} On September 1, 2000, Mildred Lowe executed and delivered Appellant a
general-warranty deed. By its language, it conveyed the remaining acreage of the
Gregg Farm, exclusive of the 18-acre tract and consisting of 186 acres more or less.
The warranty deed recited the property conveyed was subject to all easements,
conditions, covenants, reservations, revertors, and other liens and/or encumbrances, if
any, of record and the conveyance was made pursuant to the 1991 option.
{¶ 13} Following the closing on September 1, 2000, appellant resided with her
husband and Mildred Lowe on the Gregg Farm. Mildred Lowe died on December 28,
2001.
{¶ 14} On April 6, 2005, the trial court filed its judgment entry rendering judgment
in favor of Appellees and against Appellant. The trial court based its decision solely
upon the doctrine of merger by deed.
{¶ 15} Appellant filed a timely notice of appeal from the aforesaid judgment entry
to this Court. This Court reversed the judgment of the trial court and remanded the Morgan County, Case No. 10-CA-2 6
matter. We found the doctrine of merger by deed was inapplicable as the deed had not
been unqualifiedly delivered and accepted by Appellant.
{¶ 16} Upon remand, the trial court ordered the parties to submit written final
arguments on or before September 18, 2006. Via Decision: Judgment Entry filed
August 23, 2010, the trial court again ruled in favor of Appellees, finding Appellant’s
claims were barred by the doctrines of waiver and laches.
{¶ 17} It is from this judgment entry, Appellant appeals raising as error:
{¶ 18} “I. THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST
PLAINTIFF-APPELLANT BASED UPON THE DOCTRINES OF WAIVER AND
LACHES.”
I
{¶ 19} Herein, Appellant maintains the trial court erred in finding the doctrines of
laches and waiver prevented her from pursuing any right to the property in question.
Specifically, Appellant asserts Appellees did not properly raise the affirmative defenses
of laches and waiver in accordance with Civ. R. 8(C); therefore, the trial court erred in
sua sponte applying those defenses to bar her claims.
{¶ 20} Civ. R. 8(C) governs the pleading of affirmative defenses and provides, in
pertinent part:
{¶ 21} “In pleading to a preceding pleading, a party shall set forth affirmatively * *
* laches, * * *, waiver, and any other matter constituting an avoidance or affirmative
defense. When a party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if
there had been a proper designation.” Morgan County, Case No. 10-CA-2 7
{¶ 22} Upon review of the pleadings, we find Appellant is partially correct.
Appellees did not raise the affirmative defense of laches. We find the trial court
improperly relied upon the doctrine of laches in support of its decision. However, the
trial court also found the doctrine of waiver applicable, which Appellees did specifically
raise in their Answer. By virtue of the two-issue rule, a decision which is supported by
one or more alternate grounds properly submitted is invulnerable to attack on one issue
only. Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 185, 729
N.E.2d 726, quoting H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303, 175
N.E. 205. Accordingly, because the trial court granted judgment in favor of Appellees on
both the defenses of laches and waiver, the fact the trial court incorrectly found laches
does not result in reversal.
{¶ 23} Appellant’s sole assignment of error is overruled.1
By: Hoffman, P.J.
Edwards, J. concurs,
Farmer, J. dissents s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS
1 In her Reply Brief, Appellant raises new arguments as to the merits of Appellees’ defense of waiver. A reply brief is not the place for briefing new substantive arguments that were not raised in appellant's brief. See App.R. 16(C). See, also, State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61. Accordingly, we shall not consider these arguments. Morgan County, Case No. 10-CA-2 8
Farmer, J., dissents
{¶24} I respectfully disagree with the majority's opinion that the doctrine of
waiver applies sub judice.
{¶25} As noted by the majority, there are no genuine issues of fact in dispute.
The sole issue is the proper application of the law to the option between appellant and
Mildred Lowe. On its face, the option was not exercisable until six months after the
death of Mildred Lowe. Therefore, it was a right subject to total or partial defeasance
during the lifetime of Mildred Lowe. Mildred Lowe chose to partially defease the parcel
by selling 18 acres to Duane Lowe prior to her death, and permitted appellant to
purchase the remaining acres. These two actions voluntarily voided the option between
appellant and Mildred Lowe. Therefore, there was no option to be exercised upon
Mildred Lowe's death.2
{¶26} I would find that no option existed and appellant failed in her cause of
action.
s/ Sheila G. Farmer _____________________ HON. SHEILA G. FARMER
2 The validity of the option is raised by appellees in their answer and their briefing to the trial court. Morgan County, Case No. 10-CA-2 9
IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARGARET SUERMONDT, : : Plaintiff-Appellant, : : v. : JUDGMENT ENTRY : DUANE M. LOWE ET AL., : : Defendants-Appellees. : Case No. 10-CA-2
For the reasons stated in our accompanying Opinion, the August 23, 2010
Decision: Judgment Entry of the Morgan County Court of Common Pleas is affirmed.
Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN