Samsa v. Hess

[Cite as Samsa v. Hess, 2015-Ohio-429.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
SUSAN SAMSA : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2014 AP 0008
RICHARD HESS, ET AL :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2013CV120897

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 3, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ERICK BAUER PAUL HERVEY
204 West High Avenue 140 Fair Avenue N.W.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
[Cite as Samsa v. Hess, 2015-Ohio-429.]

Gwin, J.

{¶1} Appellants Richard and Trista Hess [collectively “Hess”] appeal the

decision of the Court of Common Pleas Tuscarawas County, which ruled in favor of

Appellee Susan Samsa in a dispute over the construction of a structure on appellants’

property.

Facts and Procedural History

{¶2} Hess are the owners of a residential real estate lot, known as Lot 94 in the

plat of Myer's First Subdivision as recorded in Plat Book 22, Page 6 (Plaintiff's Exhibit

A). Samsa is the owner of two lots in Myer's First Subdivision and the previous owner of

Hess' lot.

{¶3} Hess' lot, as well as the other lots in the Myer's First Subdivision, is

subject to conditions and restrictions of record in Volume 688, Page 318 of the

Tuscarawas County Deed Records (Plaintiffs Exhibit B).

{¶4} The Declaration of Covenants, Conditions and Restrictions were made

November 1, 1994, by the owners of an 84.4449-acre tract, who created Myer's First

Subdivision. The owners' stated purpose was to sell 9.964 acres of the tract by Lots,

"restricting the Lots in accordance with a common plan designed to preserve the value

and residential qualities of the Lots for benefit of its future owners."

{¶5} The owners further declared that "the Lots shall be held, transferred,

encumbered, used, sold, conveyed, leased, and occupied subject to the Covenants and

restrictions set forth [in the Declaration] expressly and exclusively for the use and

benefit of the property and of each and every person or entity who now or in the future

owns any portion or portions at the said Lots."
Tuscarawas County, Case No. 2014 AP 0008 3

{¶6} The Declaration of Covenants, Conditions and Restrictions contains the

following relevant provisions:

1. No lot shall be used except for a single-family residence. No

basement type dwelling shall be erected for use itself unless completed

into a residential dwelling. Each lot being developed for a residence shall

be completed within one (1) year from start of construction date. Additional

storage sheds will be limited to one per Lot and must be of wood and or

brick type (10 feet by 14 feet maximum) and first must be approved by

said Grantors as to style and placement on said Lot.

***

2. All dwellings shall be of quality workmanship and materials

substantially the same or better than that produced on the date these

covenants (sic) are recorded. The ground floor of the main structure,

exclusive of one-story open porches and garages, shall be not less than

1600 square feet for a one-story dwelling not less than 1800 square feet

for a dwelling of more than one story.

No building or other structure shall be commenced, erected, or

maintained, nor shall any addition to or change or alteration therein be

made, until the plot plan showing location of buildings on the Lot, and the

plans and specifications showing the nature, kind, shape, height,

materials, floor plans, color scheme and approximate cost of such

structure or work to be done and grading plan of the plot to be built upon

shall have been submitted to and approved in writing by an authorized
Tuscarawas County, Case No. 2014 AP 0008 4

agent of Grantor and a copy thereof as finally approved filed permanently

with the Grantor.

***

5. ...Nothing shall be stored or suffered to remain outside of any

dwelling house and attached garage, but all tangible property shall be

stored inside.

6. No structure of a temporary character, trailer, basement, tent

shack, garage, barn or other outbuilding shall be used on any Lot at any

time as a residence, either temporarily or permanently. Any boats or

recreational vehicles must be stored out of sight of adjoining Lot owners.

No television, radio or similar towers or structures shall be erected. Any

other type of construction on said Lots must be approved by the

DECLARANT prior to construction.

***

11. The Architectural Control Committee is composed of the

DECLARANT by its authorized representatives and any other designees

appointed by the DECLARANT from time to time. A majority of the

Committee may designate a representative to act for it. In the event of

death or resignation of any member, the remaining members shall have

full authority to designate a successor. The Committee, its successors and

assigns, shall have the right to alter, modify, or annual any of the

covenants, restrictions, and conditions of this declaration.

***
Tuscarawas County, Case No. 2014 AP 0008 5

13. The Committee's approval or disapproval as required in these

covenants shall be in writing. If the Committee fails to approve or

disapprove any plans and specifications within forty-five (45) days after

the plans and specifications have been submitted to it, or in any event, if

no suit to enjoin the constructions has been commenced prior to the

completion, approval will not be required and the related covenants shall

be deemed to have been fully complied with.

14. Enforcement shall be by proceedings at law or in equity, either

to restrain violation or to recover damages, against any person or persons

violating or attempting to violate any covenant.

{¶7} The Declaration of Covenants, Conditions and Restrictions identifies the

"Declarant"-owners of the lands as Esther W. Kate, Paul H. Kate, Carol J. Yackey,

Dallas G. Yackey, Marilyn W. Corns and Jack W. Corns. Samsa was the daughter of

two owners. Appellant Richard Hess is the nephew of Samsa.

{¶8} On February 6, 2014, the case proceeded as a trial before the court. The

Court heard the testimony of Richard Hess, Susan Samsa, Cheryl Brugger and Mark

Yackey. The Court admitted into evidence Plaintiff’s Exhibits A, B and C, and

Defendants' Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. The Court also reviewed the law

presented by the parties in Plaintiff's Trial Brief filed February 4, 2014 and Defendants'

Trial Brief filed February 6, 2014.

{¶9} At trial the following evidence was presented as set forth in the trial court’s

judgment entry filed February 12, 2014.
Tuscarawas County, Case No. 2014 AP 0008 6

{¶10} Hess purchased Lot 94 on October 31, 2013, after construction of the

residential home was completed. Hess made the purchase with full knowledge of the

applicable conditions and restrictions. Hess reviewed the conditions and restrictions at

the closing. Richard Hess also testified that Samsa advised him to read over the deed

restrictions before the construction of the building at issue.

{¶11} Approximately one week later, Hess commenced constructing an

additional building on Lot 94. Hess’ cousin called him right after the construction started

on the building. Adjacent lot owner and brother of Samsa, Mark Yackey, also contacted

Hess after the start of the construction and before a subsequent certified letter sent by

an attorney for Samsa was received by Hess.

{¶12} On November 18, 2013, Hess received a letter from Samsa’s attorney,

acknowledging that the Hess’ were constructing a building that did not comply with the

Declaration of Covenants, Conditions and Restrictions. The letter advises Hess that an

action for injunctive relief to prevent further construction will be filed, if necessary

(Plaintiffs Exhibit C).

{¶13} Upon receipt of the letter, Hess ceased working for a few days, and then

resumed construction of the building. After receipt of the letter, Hess added siding,

poured the concrete, installed the electric and shingled the building.

{¶14} Appellant Richard Hess testified that he completed the construction the

day before Samsa filed her Complaint, that being December 15, 2013.

{¶15} Hess built a 30' by 40', and 15' tall building, unattached from the

residential home. The building includes a single garage door, larger than a standard

garage door. The building is vinyl-sided. Hess testified that the purpose of the building is
Tuscarawas County, Case No. 2014 AP 0008 7

to use it as a garage for his recreational vehicle. Hess' residence has an attached, two-

car garage.

{¶16} Hess never submitted plans for the construction of the building to any

committee or designee.

{¶17} The Court found that Hess failed to seek approval for the construction,

violated the size restrictions for a storage building, disregarded advice of other lot

owners and relatives to review and abide by the restrictions, and continued the

construction in spite of notification from an attorney to cease. The trial court therefore

granted Samsa’s request for permanent injunction, and ordered Hess to remove the

building.

Assignments of Error

{¶18} Hess was granted a stay of the trial court’s judgment entry and has raised

two assignments of errors,

{¶19} “I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE

RESTRICTIONS PROHIBITED THE BUILDING OF A GARAGE ON THE PROPERTY.

{¶20} “II. THE TRIAL COURT ERRED IN APPLYING THE RESTRICTIONS

AGAINST THE APPELLANTS WHEN THE APPELLEE FAILED TO FILE SUIT

BEFORE COMPLETION."

{¶21} Initially, we must note a deficiency in Hess’ appellate brief. That is, Hess’

appellate brief does not comply with App.R. 16(A)(7), which provides,

(A) Brief of the appellant

The appellant shall include in its brief, under the headings and in

the order indicated, all of the following:
Tuscarawas County, Case No. 2014 AP 0008 8

***

(5) A statement of the case briefly describing the nature of the

case, the course of proceedings, and the disposition in the court below.

(6) A statement of facts relevant to the assignments of error

presented for review, with appropriate references to the record in

accordance with division (D) of this rule.

{¶22} Hess’ brief does not contain either a Statement of Facts or a Statement of

the Case.

The omission of page references to the relevant portions of the

record that support the brief's factual assertions is most troubling.

Appellate attorneys should not expect the court ‘to peruse the record

without the help of pinpoint citations' to the record. Day v. N. Indiana Pub.

Serv. Corp. (C.A.7, 1999), 164 F.3d 382, 384 (imposing a public

reprimand and a $500 fine on an attorney for repeated noncompliance

with court rules). In the absence of the page references that S.Ct.Prac.R.

VI(2)(B)(3) requires, the court is forced to spend much more time hunting

through the record to confirm even the most minor factual details to decide

the case and prepare an opinion. That burden ought to fall on the parties

rather than the court, for the parties are presumably familiar with the

record and should be able to readily identify in their briefs where each

relevant fact can be verified.
Tuscarawas County, Case No. 2014 AP 0008 9

State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of

Trustees, 108 Ohio St.3d 288, 843 N.E.2d 174, 2006-Ohio-903, ¶ 13; See also, State v.

Davis, 5th Dist. Licking No.2007-CA-00104, 2008-Ohio-2418, ¶ 91.

{¶23} However, “it is a fundamental tenet of judicial review in Ohio that courts

should decide cases on the merits.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d

189,192, 431 N.E.2d 644(1982), citing Cobb v. Cobb, 62 Ohio St.2d 124, 403 N.E.2d

991(1980).

I.

{¶24} In their first assignment of error, Hess’ argue the trial court erred when it

held that the Declaration of Covenants, Conditions and Restrictions prohibited the Hess’

from building a garage on their property.

{¶25} In Goutras v. Dillon-McDonald, this court held.

A restriction merely requiring submission and approval of building

plans may be valid.

In order that a restrictive covenant requiring the submission to and

approval of the grantor of plans for the erection of a dwelling may be valid

and enforcible [sic], such covenant must be used (1) in connection with

some general plan or scheme of which the grantee has notice, or (2) some

other designated or stated restriction within which such approval may

operate, or (3) the covenant must contain some criterion or limitation

regulating the scope of such approval.

Carranor Woods Property Owners’ Assn. v. Driscoll (1957), 106

Ohio App. 95, paragraph three of the syllabus.
Tuscarawas County, Case No. 2014 AP 0008 10

5th Dist. Stark No. CA-8349, 1991 WL 207949 (Sept. 30. 1991). It is undisputed in the

case at bar that Hess failed to obtain the necessary approval before or at any time

during the construction of the structure in violation of the Declaration of Covenants,

Conditions and Restrictions.

{¶26} It is further undisputed in the case at bar that the structure at issue has as

its purpose the storage of Hess’ recreational vehicle. Hess’ residence already had an

attached two-car garage. Hess cannot escape the restrictions by arguing semantics.

{¶27} A court should not enforce a restrictive covenant, by virtue of substantial

changes in the character of a neighborhood, if the enforcement of the restriction would

not restore the neighborhood to its originally intended character, and the enforcement

would impose great hardship on the defendant with minimal benefit to the plaintiff.

Colonial Estates Home Owners Assoc., Inc. v. Burkley, 5th Dist. Tuscarawas No.

97AP020013, 1997 WL 34724487(Oct. 7, 1997). Hess failed to prove a substantial

change in the neighborhood to defeat the restrictive covenant.

{¶28} We find the trial court did not err, as a matter of law, when it determined

that the construction of the structure, by Hess was prohibited by paragraph one of the

restrictive covenants. We have used the “size alone” analysis before and find its

application appropriate in the case sub judice. Colonial Estates Home Owners Assoc.,

Inc. v. Burkley, supra.

{¶29} Hess’ first assignment of error is overruled.
Tuscarawas County, Case No. 2014 AP 0008 11

II.

{¶30} In their second assignment of error, the Hess’ argue that the trial court

erred in applying the building restrictions because Samsa failed to file suit before the

structure was completed.

{¶31} In finding that that the appellees were not barred from seeking

enforcement of restrictive covenants by the doctrine of latches, the Court in Connolly

Construction Co. v. Yoder observed,

First, unreasonable delay must be established. The evidence

offered prior to the court’s dismissal shows that Connolly became aware

that the Yoders had installed the board and batten siding by November 5,

2002. At that time, Connolly sent a letter to the Yoders notifying them that

they were in violation of the covenants and requested that they remedy

the violation. When no action was taken, Connolly filed suit March 17,

2003, approximately four months after the violation occurred. However,

waiting a few months before filing suit to give the Yoders an opportunity to

comply with the Guidelines does not seem, in and of itself, unreasonable.

Second, the Yoders must establish that Connolly had no excuse for

such a delay. The evidence indicates that by sending a letter to the

Yoders, Connolly gave the homeowners an opportunity to correct the

violation before any legal action was taken. We note that litigation should

be a last resort for the resolution of disputes and parties should be

encouraged to settle their disputes short of litigation, where such is a

feasible alternative. Zimmie v. Calfee, Halter and Griswold (1989), 43 Ohio
Tuscarawas County, Case No. 2014 AP 0008 12

St.3d 54, 60, 538 N.E.2d 398. Providing a reasonable amount of time for

the Yoders to remedy the ostensible violation is a justifiable reason for

Connolly’s delay in filing suit absent facts to the contrary.

Although there was evidence of the third element of the affirmative

defense, Connolly’s knowledge of the wrong, it must also be demonstrated

that the Yoders were prejudiced by any delay in Connolly’s assertion of its

right. Based on the undisputed evidence, however, the Yoders were

notified, before they began construction on the garage, that their proposed

use of board and batten siding on the walls of their garage contravened

the Guidelines and was not approved. Yet, they disregarded this

disapproval and proceeded with construction as planned. Thus, on the

state of the evidence now existing, any prejudice to the Yoders appears to

have been precipitated, at least in part, by their own conduct.

3rd Dist. Union No. 14-04-39, 2005-Ohio-4624, ¶¶25-27. Accord, Baker v. Adams, 3rd

Dist. 8-05-17, 2006-Ohio-3232, ¶¶21-22; DeRosa v. Parker, 197 Ohio App.3d 332, 346-

347, 2011-Ohio-6024, 967 N.E.2d 767(7th Dist.).

{¶32} In the case at bar, the trial court found the Hess’ disregarded advice of

other lot owners and relatives to review and abide by the restrictions, and continued the

construction in spite of written notification from an attorney to cease.

{¶33} After reviewing the record, we find any delay in pursuing legal action to be

reasonable. This is so because any delay stemmed from Samsa’s efforts to afford the

Hess’ the opportunity to correct the violations at issue. See Connolly Constr. Co. v.

Yoder, 3d Dist. No. 14-04-39, 2005-Ohio-4624, ¶ 25. We further find Samsa’s efforts
Tuscarawas County, Case No. 2014 AP 0008 13

constitute a valid excuse for any delay. Id. at ¶ 26. Based on these findings, we cannot

say the trial court abused its discretion when it determined that defense of waiver did

not bar the Samsa from enforcing the deed restrictions.

{¶34} Hess’ second assignment of error is overruled.

{¶35} The judgment of the Tuscarawas Court of Common Pleas is affirmed.

By Gwin, J., and

Wise, J., concur;

Hoffman, P.J., concurs

in part; dissents in part
Tuscarawas County, Case No. 2014 AP 0008 14

Hoffman, P.J., concurring in part and dissenting in part

{¶36} I concur in the majority's analysis and disposition of Appellants' first

assignment of error.

{¶37} I respectfully dissent from the majority's analysis and disposition of

Appellants' second assignment of error. I find Section 13 of the Declaration of

Covenants, Conditions and Restrictions is clear.1 Because, "in any event", no suit to

enjoin construction was commenced prior to completion, approval was not required and

the related covenants are deemed to have been fully complied with.

{¶38} I would sustain Appellants' second assignment of error and reverse the

trial court's judgment.

________________________________
HON. WILLIAM B. HOFFMAN

1
Because review of a written document which is unambiguous is de novo, I find the
majority's utilization of an abuse of discretion standard of review inappropriate.
[Cite as Samsa v. Hess, 2015-Ohio-429.]