[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CUMBERLAND TRAIL : JUDGES:
HOMEOWNERS’
ASSOCIATION, INC. :
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 11-CA-72
RONALD S. KINIETZ, et al. :
:
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 10 CV 01540
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Appellant: For Appellee:
ELIZABETH J. WATTERS RAYMOND DELEVIE
65 E. State St., Suite 1000 2770 East Main St., Suite 24
Columbus, OH 43215 Bexley, OH 43209
Dennis Love Aegis Lending Corporation
20 South Second St. 10049 N. Rieger Road
P.O. Box 830 Baton Rouge, LA 70809
Newark, OH 43058-0830
J.P Morgan Chase
1111 Polaris Parkway
Columbus, OH 43240
[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]
Delaney, J.
{¶1} Plaintiff-appellant Cumberland Trail Homeowners’ Association, Inc.
(“HOA”) appeals from the June 20, 2011 judgment entry of the Licking County Court of
Common Pleas granting defendant-appellees’ motion for summary judgment.
Defendant-appellees are Ronald and Kristy Kinietz.1
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when HOA filed suit against appellees for $945.95 in
unpaid homeowners’ association dues, interest, costs, and attorney’s fees.
{¶3} In 1998, developer Columbia Road Ltd. recorded “Cumberland Trail,
Section I, Declaration of Covenants, Conditions, and Restrictions.” This document set
forth 25 restrictions regarding construction and maintenance of residential homes in
the Cumberland Trails subdivision. These covenants did not create a homeowners’
association or levy assessments against homeowners.
{¶4} Article II of the 1998 Declaration includes the following provision:
(A) TERM: These covenants are to run with the Lots and shall be
binding on all owners of the above-described real estate until
January 1, 2037, after which time said covenants shall be
automatically extended for successive periods of ten (10) years,
unless an instrument signed by a majority of the Lot Owners is
recorded, agreeing to change said covenants in whole or in part.
Notwithstanding anything to the contrary contained herein, the
covenants, conditions and restrictions established herein may, at any
1
JP Morgan Chase, Aegis Lending Corporation, and the Licking County Treasurer are parties
to the case in the trial court but are not parties in this appeal.
Licking County, Case No. 11-CA-72 3
time, be amended, modified or replaced in whole or in part by the
Declarant without the further consent or execution of any documents by
any person or entity, including any person or entity who is at such time a
Lot Owner, for so long as the Lots owned by Declarant constitute more
than ten percent (10%) of the aggregate Lots located within the
subdivision, including any additional property hereafter added to the
Subdivision pursuant to the application of Article IV herein. (Emphasis
added.)
{¶5} Columbia Road recorded a Second Supplemental Declaration in 2000.
This Declaration subjected Lot No. 143, e.g., to the 1998 Declaration. Again,
Columbia Road did not create a homeowners’ association.
{¶6} Appellees purchased Lot No. 143 on January 7, 2001, and at the time of
the purchase, no homeowners’ association existed.
{¶7} In 2005, Columbia Road went into foreclosure and ultimately
transferred its remaining property to First Merit Bank.
{¶8} In June 2007, HOA filed articles of incorporation with the Secretary of
State, and shortly thereafter, by vote of a majority of the lot owners, recorded an
Amendment to the Declaration. The Amendment purported to create a homeowners’
association and to vest in it rights and duties reserved by Columbia Road in the
original Declaration.
{¶9} In September 2009, HOA advised appellees they owed $380 in unpaid
homeowners’ association dues, interest, costs, and attorney fees.
Licking County, Case No. 11-CA-72 4
{¶10} On June 4, 2010, HOA filed a complaint against appellees for $945.95 in
homeowners’ association fees, dues, attorney fees, interest, and costs.
{¶11} Appellees answered and counterclaimed for slander of title against HOA.
{¶12} On November 23, 2010, HOA filed an amended complaint in foreclosure
against appellees and included defendants JP Morgan Chase Bank, NA, Aegis
Lending Corporation, and the Licking County Treasurer. Appellees answered and
renewed their counterclaim for slander of title.
{¶13} On December 28, 2010, appellees moved for partial summary judgment
against HOA on the basis that the 1998 Declaration and its 2000 Second
Supplemental Declaration provide no legal basis to require mandatory membership in
a homeowners’ association or to force residents to pay dues. HOA responded and
also moved for summary judgment against appellees.
{¶14} The trial court initially ruled on February 24, 2011, that it denied HOA’s
motion for summary judgment, granted appellees’ motion for summary judgment, and
dismissed HOA’s claims against appellees.2
{¶15} HOA asked the trial court to reconsider its judgment entry, specifically, to
comply with Civ.R. 54(B). The trial court granted this request and issued an amended
judgment entry on June 20, 2011.
{¶16} HOA now appeals from the decision of the trial court granting appellees’
motion for summary judgment.3
{¶17} Appellant raises two Assignments of Error:
2
Appellees’ complaint for slander of title remained pending.
3
Appellees initially filed a cross-appeal from the trial court’s decision granting the motion to
reconsider, but then moved to dismiss the cross-appeal. We granted the motion to dismiss on
October 17, 2011.
Licking County, Case No. 11-CA-72 5
{¶18} “I. THE TRIAL COURT ERRED IN ENTERING ITS AMENDED
JUDGMENT ENTRY AND GRANTING SUMMARY JUDGMENT AGAINST THE
PLAINTIFF-APPELLANT BECAUSE THE TRIAL COURT ERRED IN ITS
INTERPRETATION OF THE 1998 DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS OF CUMBERLAND TRAIL, INSTRUMENT NO.
199810130038908, WHICH WAS RECORDED WITH THE LICKING COUNTY
RECORDER’S OFFICE (‘DECLARATION’).”
{¶19} “II. THE TRIAL COURT ERRED IN ITS AMENDED JUDGMENT ENTRY
AND GRANTING SUMMARY JUDGMENT AGAINST THE PLAINTIFF-APPELLANT
BECAUSE THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE
AMENDMENT TO DECLARATION OF COVENANT, CONDITIONS, AND
RESTRICTIONS FOR CUMBERLAND TRAIL SUBDIVISION SECTIONS 1, 2, 3, 4, 4
(PART 2) AND 5, INSTRUMENT NUMBER 200709050023500, FILED WITH THE
LICKING COUNTY RECORDER’S OFFICE (‘AMENDMENT’), AND IN ITS
APPLICATION OF THE AMENDMENT TO PLAINTIFF-APPELLANT CUMBERLAND
TRAIL HOMEOWNERS ASSOCIATION.”
I., II.
{¶20} Appellant argues in its two assignments of error the trial court incorrectly
interpreted the 1998 Declaration and its Amendment. We disagree and overrule
appellant’s two assignments of error on the principle of stare decisis, upon the
authority of Cumberland Trail Homeowners Assn., Inc. v. Bush, 5th Dist. No. 11 CA
40, 2011-Ohio-6041, appeal not allowed, 131 Ohio App.3d 1485, 2012-Ohio-1143,
Licking County, Case No. 11-CA-72 6
963 N.E.2d 825. The two assignments of error are related and will be considered
together.
{¶21} Summary judgment motions are to be resolved in light of the dictates of
Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be granted, it must
be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)
it appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the nonmoving
party, that conclusion is adverse to the party against whom the motion for
summary judgment is made. State ex rel. Parsons v. Fleming, 68 Ohio St.3d
509, 511, 628 N.E.2d 1377 (1994), citing Temple v. Wean United, Inc. 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977).
As an appellate court reviewing summary judgment motions, we must stand in the
shoes of the trial court and review summary judgment motions on the same standard
and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35,
36, 56 N.E.2d 212 (1987).
{¶22} Appellant argues the trial court misapplied the “last antecedent rule of
grammar” in its interpretation of Article II, Section A of the 1998 Declaration. We
disagree.
{¶23} Restrictive covenants in deeds are generally interpreted by those rules
used to interpret contracts. McBride v. Behrman, 28 Ohio Misc. 47, 50, 272 N.E.2d
Licking County, Case No. 11-CA-72 7
181 (1971). In the case of contracts, deeds, or other written instruments, the
construction of the writing is a matter of law which is reviewed de novo. See, Martin v.
Lake Mohawk Property Owner’s Ass’n., 5th Dist. No. 04 CA 815, 2005-Ohio-7062, ¶
23, citing Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208
(1998). Under a de novo review, an appellate court may interpret the language of the
contract substituting its interpretation for that of the trial court. Witte v. Protek Ltd., 5th
Dist. No. 2009CA00230, 2010-Ohio-1193, ¶ 6, citing Children’s Medical Center v.
Ward, 87 Ohio App.3d 504, 622 N.E.2d 692 (1993).
{¶24} Ohio’s legal system “does not favor restrictions on the use of property.”
Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 276, 328 N.E.2d 395 (1975). “The
general rule, with respect to construing agreements restricting the use of real estate, is
that such agreements are strictly construed against limitations upon such use, and
that all doubts should be resolved against a possible construction thereof which would
increase the restriction upon the use of such real estate.” Bove v. Geibel, 169 Ohio
St.3d 125, 159 N.E.2d 425 (1959), paragraph one of the syllabus. Furthermore, “[i]f
the covenant’s language is indefinite, doubtful, and capable of contradictory
interpretations, the court must construe the covenant in favor of the free use of land.”
Farrell v. Deuble, 175 Ohio App.3d 646, 2008-Ohio-1124, 888 N.E.2d 514, ¶ 11, citing
Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266 (1973), paragraph two of the
syllabus.
{¶25} As noted supra, we previously have been asked to interpret the
operation of the 1998 Declaration and Amendment, and have no basis to deviate from
our rationale in that case. Cumberland Trail Homeowners Assn., Inc. v. Bush, 5th
Licking County, Case No. 11-CA-72 8
Dist. No. 11 CA 40, 2011-Ohio-6041, appeal not allowed, 131 Ohio App.3d 1485,
2012-Ohio-1143, 963 N.E.2d 825 [“Bush”].
{¶26} In Bush, we focused on the language cited supra from Article II, Section
A, and found:
The primary question before us is whether or not the above phrase beginning
with “unless” expresses an intention by the drafters that any changes to the
covenants are permitted only “after which time,” i.e., January 1, 2037.
Appellant directs us to the “last-antecedent rule” of contract interpretation,
which states that referential and qualifying words and phrases, where no
contrary intention appears, refer solely to the last antecedent. See Wohl v.
Swinney, 118 Ohio St.3d 277, 279, 2008-Ohio-2334, 888 N.E.2d 1062.
Upon review, we hold Article II(A), when strictly construed and subjected to the
last-antecedent rule, does not permit owner-initiated changes to the 1998
restrictive covenants pertaining to the Cumberland Subdivision prior to the
January 1, 2037 limitation stated therein. Accordingly, the trial court erred as a
matter of law in applying the homeowners association restrictions and fees to
appellants.
Id., 2011-Ohio-6041 at ¶ 16.
We agree, therefore, with the trial court, which applied the last-antecedent rule by
stating: “By this rule of construction, the phrase ‘unless an instrument signed by a
majority of the Lot Owners is recorded, agreeing to change said covenants in whole or
in part’ refers to the automatic ten-year extension of the covenants. It would not allow
Licking County, Case No. 11-CA-72 9
for modification of the covenants by the lot owners prior to 2037.” We, too, find
nothing in the Declaration that negates this rule of construction.
{¶27} Moreover, as both the trial court and the concurring writer in Bush noted,
no basis exists to permit HOA to require membership in a homeowners’ association,
along with its obligations to pay dues and fees. We are unwilling to find any covenant
or restriction where nothing in the Declaration evidences intent to create one. See,
Bush, supra, 2011-Ohio-6041 at ¶ 20.
{¶28} For the reasons stated in the foregoing opinion, appellants’ two
assignments of error are overruled and the judgment of the Licking County Court of
Common Pleas is affirmed.
By: Delaney, P.J.
And Edwards, J. concur.
Hoffman, J. concurs separately
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
PAD:kgb
Licking County, Case No. 11-CA-72 10
Hoffman, J., concurring
{¶29} I concur for the same reasons set forth in my concurrence in Cumberland
Trail Homeowners Assn., Inc. v. Bush, 5th Dist. No. 11 CA 40, 2011-Ohio-6041.
_______________________________
HON. WILLIAM B. HOFFMAN
[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CUMBERLAND TRAIL :
HOMEOWNERS’ :
ASSOCIATION, INC. :
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
RONALD S. KINIETZ, et al. :
:
: Case No. 11-CA-72
Defendants-Appellees :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS