Lone Star Equities, Inc. v. Dimitrouleas, 26321.

CourtUnited States Court of Appeals (Ohio)
Citation34 N.E.3d 936
Docket NumberNo. 26321.,26321.
PartiesLONE STAR EQUITIES, INC., et al., Plaintiffs–Appellants v. George DIMITROULEAS, et al., Defendants–Appellees.
Decision Date12 June 2015

34 N.E.3d 936

LONE STAR EQUITIES, INC., et al., Plaintiffs–Appellants
v.
George DIMITROULEAS, et al., Defendants–Appellees.

No. 26321.

Court of Appeals of Ohio, Second District, Montgomery County.

June 12, 2015.


34 N.E.3d 939

Stephen E. Klein, Vandalia, OH, for Plaintiffs–Appellants.

John M. Ruffolo, Richard Hempfling, Dayton, OH, Michael P. O'Donnell, Jeffrey T. Heintz, Cleveland, OH, for Defendants–Appellees.

Opinion

WELBAUM, J.

{¶ 1} In this case, Plaintiffs–Appellants, Louis Wiener and Lone Star Equities, Inc., appeal from summary judgments granted to Defendants–Appellees, George Dimitrouleas, First American Title Insurance Company (“First American”), and National Title Company (“National”). In support of their appeal, Appellants contend that although there are no factual issues, the trial court erred in sustaining the summary judgment motions of each Appellee.

{¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of all Appellees in connection with property that Dimitrouleas sold to Appellants. Concerning the contractual claims against Dimitrouleas, his purchase agreement with Appellants merged with the general warranty deed. To the extent that the purchase agreement excepted certain representations from merging, the statements that Dimitrouleas made were not actionable representations. Furthermore, additional taxes assessed against the property following a decision of the Board of Tax Appeals 18 months after the closing also did not violate the general warranty deed by constituting an encumbrance or lien on the property at the time of the closing. Moreover, even if one assumes that Dimitrouleas falsely or recklessly misrepresented

34 N.E.3d 940

facts about the pendency of valuation proceedings, Appellants could not have justifiably relied on these representations, because valuation proceedings are matters of public record. Appellants had the ability to inquire into the status of any such proceedings.

{¶ 3} As an additional matter, the undisputed facts indicate that National did not deviate from accepted standards of care when examining the title, and it is not liable for the failure to discover the pending action before the Board of Tax Appeals. The remaining claims against First American in connection with its policy of title insurance also fail, because the policy excludes coverage for taxes and assessments that are not due and payable at the time of closing. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} The facts in this case are undisputed. In 1998, Defendant–Appellee, George Dimitrouleas purchased a commercial warehouse located at 1927–1945 Needmore Road in Dayton, Ohio. For the tax year 2008, the Montgomery County Auditor appraised the property at a value of $1,849,250. In March 2009, Dimitrouleas filed a complaint with the Montgomery County Board of Revision (“BOR”), requesting that the property value be reduced. After Dimitrouleas attended a BOR hearing, the value was reduced to $1,516,560 on November 6, 2009, and the tax duplicates were adjusted.

{¶ 5} Subsequently, the Northridge Local Schools Board of Education (“Northridge”) appealed the BOR decision to the Board of Tax Appeals (“BTA”). Dimitrouleas also appealed to the BTA on November 30, 2009, asking that the BOR valuation be further reduced, from $1,516,560 to $980,000.

{¶ 6} On March 17, 2010, Dimitrouleas signed a purchase agreement, agreeing to sell the Needmore property to Plaintiff–Appellant, Lone Star Equities, Inc. (“Lone Star”), for a purchase price of $1,900,000. Lone Star was a Subchapter S corporation owned by Plaintiff–Appellant, Louis Wiener. Dimitrouleas also signed amendments to the contract in 2010, as well as a warranty deed for the property on January 24, 2011.

{¶ 7} The Purchase Agreement provided for various conditions precedent to the purchaser's obligation to purchase the property, including evidence of title. In this regard, the agreement stated that:

Evidence of Title : Purchaser may, at any time prior to the end of the Inspection Period and at its own expense, purchase an abstract of title and title insurance for the Property (“Title Commitment”) in the amount of the Purchase Price. * * *
In the event Purchaser takes issue with any title exceptions, Purchaser shall have a period of ten (10) days from receipt of said Title Commitment in order to object in writing to Seller as to any matters contained therein. If objections to the Commitment are not resolved within ten (10) days of objection by Purchaser, then either party shall have the right, upon written notice to the other party, to terminate this Purchase Agreement.
Title exceptions, unless deleted herefrom, that would be not be deemed to materially interfere with purchaser's use and enjoyment of the Real Estate are as follows:
1) Taxes not delinquent * * *.

Ex. 4, p. 2, attached to the Affidavit of George Dimitrouleas, which, in turn, is attached as Exhibit A to Defendant's Motion for Summary Judgment, Doc. # 18 (March 17, 2010 Purchase Agreement, hereafter referred to as “Ex. 4.”).

34 N.E.3d 941

{¶ 8} The Purchase Agreement further stated that Dimitrouleas would give Lone Star reasonable written documentation within 10 days after accepting the offer to purchase, including the most recent year's property tax information, if any, and an existing title report, if such information were available. Ex. 4, p. 3. With respect to taxes, the agreement additionally stated that:

10. Taxes: All installments of real estate taxes, and any other assessments against the Property, that are due and owing prior to Closing shall be paid by Seller regardless if the tenant reimburses Seller for same. The taxes and any other assessments assessed for the current year shall be prorated between Seller and Purchaser on a calendar year basis as of the closing date.

Ex. 4, p. 5.

{¶ 9} Section 16 of the agreement also provided, in pertinent part, as follows:

16. Representations and Warranties: Purchaser acknowledges that neither the Seller, any affiliate of the Seller, nor any of their respective shareholders, partners, members, officers, directors, employees, contractors, agents, attorneys, or other representatives (collectively “Seller Related Parties”) have made any verbal or written representations, warranties, promises, or guarantees whatsoever to Purchaser, except as herein specifically set forth.
* * *
(c) Except for the agreements of Seller and Purchaser set forth in the Closing documents or otherwise entered into at or prior to the Closing, Purchaser agrees that Purchaser's acceptance of the Deed shall be an agreement by Purchaser that Seller has fully performed, discharged and complied with all of Seller's obligations, covenants, and agreements hereunder and that Seller has no further liability with respect thereto, with the exception of any claim for fraud or misrepresentation on the part of Seller arising out of any written statements or representations made by Seller.
* * *
(e) The provisions of this Section shall survive the Closing or any termination of this Agreement.

Ex. 4, pp. 5–6.

{¶ 10} Finally, the agreement contained the following additional terms:

19. Additional Terms: The parties further agree as follows, to wit:
* * *
(c) As a material inducement to Purchaser for entering into this Purchase Agreement, Seller hereby covenants, warrants and represents to Purchaser that to the best of Seller's knowledge, Seller has not received any notice of, nor does it have any actual knowledge of:
* * *
(ii) Any existing or threatened condemnation or other legal action of any kind affecting the Property.
* * *
(d) As a material inducement to Purchaser for entry into this Purchase Agreement, Seller further hereby covenants, warrants and represents that:
(i) Seller owns good, marketable and indefeasible fee simple title of the Property, subject only to the lien of current, non-delinquent real estate taxes and subject to no easements or other encumbrances that
34 N.E.3d 942
would interfere with the use of the Property for Purchaser's use * * *.

Ex. 4, p. 8.

{¶ 11} On January 24, 2011, Dimitrouleas also signed an affidavit in anticipation of closing, which stated that:

The undersigned seller * * * deposes and makes the following statements for the express purposes of inducing Louis Wiener * * * to purchase the following property (“the Premises”) * * *
1927, 1933, 1939 & 1945 Needmore
...

To continue reading

Request your trial
10 practice notes
  • LaMusga v. Summit Square Rehab, LLC, No. 26641.
    • United States
    • United States Court of Appeals (Ohio)
    • December 18, 2015
    ...We previously rejected a similar argument regarding electronic notification in Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio-2294, 34 N.E.3d 936 (2d Dist.). In this regard, we stated that:* * * Dimitrouleas contends in his brief that we lack jurisdiction to hear this appeal. His argum......
  • Fredrick v. Bosley, Civil Action No. 1:14-cv-631
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 29, 2016
    ...will fulfill his obligations with care, skill, and faithfulness.' " Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio- 2294, ¶ 77, 34 N.E.3d 936, 952 (quoting Thompson v. Germantown Cemetery, 188 Ohio App.3d 132, 2010-Ohio-1920, 934 N.E.2d 956, ¶ 10 (2d Dist.), (quoting Wagenheim v. Alexa......
  • Julie Maynard, Inc. v. Whatever it Takes Transmissions & Parts, Inc., 3:19-cv-238
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 5, 2022
    ...where it would be unjust to do so without payment.” Lone Star Equities, Inc. v. Dimitrouleas, 2d Dist. No. 26321, 2015-Ohio2294, 34 N.E.3d 936, ¶ 70. Because CVC never demanded any kind of rent or storage fee from WIT to store WIT cores on its premises, there is no injustice. ECF 53-5 at 99......
  • Miranda v. Xavier Univ., 1:20-cv-539
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 28, 2022
    ...theory, cannot exist in connection with the same thing at the same time.” Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio-2294, 34 N.E.3d 936, ¶ 71 (2d Dist.). But this rule does not apply where the express contract is invalid, ineffective, or otherwise does not cover the issue in dispu......
  • Request a trial to view additional results
11 cases
  • LaMusga v. Summit Square Rehab, LLC, 26641.
    • United States
    • United States Court of Appeals (Ohio)
    • December 18, 2015
    ...We previously rejected a similar argument regarding electronic notification in Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio-2294, 34 N.E.3d 936 (2d Dist.). In this regard, we stated that:* * * Dimitrouleas contends in his brief that we lack jurisdiction to hear this appeal. His argum......
  • Miranda v. Xavier University
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 28, 2022
    ...theory, cannot exist in connection with the same thing at the same time." Lone Star Equities, Inc. v. Dimitrouleas , 2015-Ohio-2294, 34 N.E.3d 936, ¶ 71 (2d Dist.). But this rule does not apply where the express contract is invalid, ineffective, or otherwise does not cover the issue in disp......
  • Miranda v. Xavier Univ.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 28, 2022
    ...theory, cannot exist in connection with the same thing at the same time.” Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio-2294, 34 N.E.3d 936, ¶ 71 (2d Dist.). But this rule does not apply where the express contract is invalid, ineffective, or otherwise does not cover the issue in dispu......
  • Fredrick v. Bosley, Civil Action No. 1:14-cv-631
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 29, 2016
    ...will fulfill his obligations with care, skill, and faithfulness.' " Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio- 2294, ¶ 77, 34 N.E.3d 936, 952 (quoting Thompson v. Germantown Cemetery, 188 Ohio App.3d 132, 2010-Ohio-1920, 934 N.E.2d 956, ¶ 10 (2d Dist.), (quoting Wagenheim v. Alexa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT