Connolly Constr. Co. v. Yoder, 2005 Ohio 4624 (OH 9/6/2005)
| Decision Date | 06 September 2005 |
| Docket Number | No. 14-04-39.,14-04-39. |
| Citation | 2005 Ohio 4624 |
| Parties | Connolly Construction Company, plaintiff-appellant, cross-appellee, v. Roger & Sandra Yoder defendants-appellees, cross-appellants. |
| Court | Ohio Supreme Court |
Luther L. Liggett, Jr., Attorney at Law, Reg. #0004683, Maria J. Armstrong, Attorney at Law, Reg. #0038973, 100 South Third Street, Columbus, OH 43215-4291, for Plaintiff-Appellant Cross-Appellee.
David W. Phillips, III, Attorney at Law, Reg. #0019966, 126 West 5th Street, Marysville, OH 43040, for Defendants-Appellees Cross-Appellants.
{¶1} Plaintiff-appellant-cross-appellee, Connolly Construction Co. (hereinafter "Connolly"), appeals the judgment of the Union County Court of Common Pleas directing a verdict in favor of defendant-appellees-cross-appellants, Roger and Sandy Yoder (hereinafter "Yoders"), and determining that certain restrictive covenants involved in the construction of the Yoders' home were unenforceable.
{¶2} The testimony and documentary exhibits offered in a trial to the court reveal that the Yoders purchased a lot in the Green Pastures Subdivision in Marysville, Ohio, from Connolly in July 2002. The Yoders' deed was subject to recorded covenants which were referenced therein. Both the covenants and Yoders' deed were properly recorded in the Union County Recorder's Office.
{¶3} According to the recorded covenants, they were established "to promote the general welfare, recreation, health, safety, enjoyment and preservation of values for the benefit of owners and lots within the Phases of Green Pastures* * *." One of the covenants required the approval by an Architectural Review Committee ("Committee") of building plans before construction could take place on the lot, and it gave the Committee discretion to approve the exterior materials used in Green Pastures.
{¶4} In furtherance of the covenants, the Committee drafted Architectural Review Guidelines ("Guidelines") to provide further detail and guidance during plan review. The Guidelines specified, in pertinent part, that only certain types of exterior finish were permitted on homes, that the same exterior finish that is applied on the front of the house must be used on the sides, and that siding may be used in horizontal bands only.
{¶5} Shortly after they purchased their lot, the Yoders submitted their building plans for approval to the Committee. The Committee reviewed the plans and objected to certain details. In particular, the Yoders wished to use a material on three walls of their garage known as "board and batten" siding, which is applied vertically, rather than horizontally. The Committee disapproved of this request for a number of reasons: the siding would be applied vertically, the material on the side of the house would not be the same as the exterior finish on the front, and although board and batten siding had been approved in limited instances for the trim on porches and entryways, it was not approved for siding.
{¶6} Believing the Committee's decision to be arbitrary, the Yoders sent a letter to Philip Connolly, the owner of Connolly Construction Company and a member of the Committee, on August 30, 2002, requesting an explanation of the decision and stating their intent to proceed with construction utilizing the board and batten siding as indicated in the building plans. Although Connolly did not respond in writing to the Yoders' letter, he testified at trial that he had a conversation with Roger Yoder explaining the prohibition. In addition, Connolly sent a letter, dated September 3, 2002, to the Yoders' builder advising him,
{¶7} Construction began on the Yoders' home and, as they had indicated, the Yoders installed the board and batten siding on three walls of their garage. On November 5, 2002, Mr. Connolly sent a letter to the Yoders stating that the Committee had become aware of the installation, had previously notified the Yoders that such siding was not acceptable, stated that they were in violation of the covenants, and asked the Yoders to correct the problem as soon as possible.
{¶8} When the siding had not been corrected, Connolly filed a Complaint for Declaratory Judgment and Injunctive Relief against the Yoders on March 17, 2003. Connolly sought both declaratory judgment on its right to enter the Yoders' property and replace the materials in violation of the covenants at the cost of the Yoders and an injunction to stop the Yoders from continuing the violation of the covenants.
{¶9} On April 11, 2003, the Yoders filed an answer and a counterclaim. The Yoders subsequently voluntarily dismissed their counterclaim.
{¶10} A bench trial was held on July 26, 2004. At the close of Connolly's case-in-chief, which consisted of the testimony of Philip Connolly, owner of Connolly Construction Co. and Committee member, the Yoders moved for a directed verdict. The trial court found that reasonable minds could come to but one conclusion based upon the evidence presented and that conclusion was adverse to Connolly. Accordingly, the trial court granted the Yoders' motion for directed verdict. Subsequently, on a motion for attorney fees, the trial court determined that both parties acted reasonably in pursuing the instant action and awarded the Yoders $1.00 in attorney fees.
{¶11} It is from this decision that Connolly and the Yoders appeal herein. Connolly asserts two assignments of error and the Yoders assert one assignment of error for our review. For clarity of analysis, we will address Connolly's assertions first.
The trial court erred in finding that enforceable covenants were not enforced because informal, unrecorded guidelines did not contain a prohibition affirmatively stated against a particular type of siding, even though the homeowners had knowledge of the prohibition.
{¶12} Under the first assignment of error, Connolly argues that the trial court erred in its failure to enforce the recorded covenants of which the Yoders had knowledge. Moreover, Connolly asserts that the court's determination that the Yoders did not violate said covenants because the use of board and batten siding was not specifically prohibited by the Guidelines was in error.
{¶13} The trial court purported to grant a motion for a directed verdict under Civ.R. 50. However, Civ.R. 50 only applies to a jury trial. In cases tried to the bench, as is the case herein, a motion for directed verdict is deemed to be a motion for involuntary dismissal pursuant to Civ.R. 41(B)(2). See Altimari v. Campbell (1978), 56 Ohio App.2d 253, 256. This distinction is important because a different test is applied. The test for a motion to dismiss in a bench trial under Civ.R. 41(B)(2) is whether the plaintiff made his case by a preponderance of the evidence. Shunk v. Shunk, 7th Dist. No. 03 BE 62, 2004-Ohio-7060. On review of such a dismissal, we must determine whether the trial court's judgment is against the manifest weight of the evidence or is contrary to law. Id.; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279 at syllabus.
{¶14} In directing a verdict for the Yoders, the trial court made specific determinations. Among those, the trial court found that the covenants were properly recorded and were enforceable as a matter of law. The trial court also found that the Yoders submitted their plans as required and received notice that the plan to use board and batten siding was not approved by the Committee. The trial court found that despite that notice, the Yoders continued their construction as planned. However, the trial court ruled that the Yoders did not violate the covenants or the Guidelines because, despite the specificity of the Guidelines, board and batten siding was not specifically prohibited.
{¶15} Restrictive covenants containing a general building scheme or plan for development are enforceable if the covenants are not contrary to public policy. Dixon v. Van Sweringen Co. (1929), 121 Ohio St. 56, paragraph one of the syllabus. In addition, restrictive covenants requiring consent of a developer or homeowners' association for construction or improvements are enforceable if there are standards for that consent. Prestwick Landowners' Assn. v. Underhill (1980), 69 Ohio App.2d 45, 49. Restrictive covenants over the use of property, however, are generally disfavored and will be strictly construed. Loblaw, Inc. v. Warren Plaza, Inc. (1955), 163 Ohio St. 581, paragraph two of the syllabus.
{¶16} The covenants, which were referenced in the Yoders' deed, directed that the Declarant, Connolly Construction Co., "shall" establish the Green Pastures Architectural Review Committee to "establish, maintain and preserve specific architectural guidelines to carry out the intent of these [covenants]." Also pursuant to the covenants, the Committee was authorized and directed "to exercise its best judgment" to see that all improvements conformed to the Guidelines as to "external design, quality and types of construction, materials, colors, setting, height, grade, finished ground elevation, landscaping and tree removal." Approval was to be based, in part, on conformity and harmony of the proposed plans with the Guidelines. Moreover, the covenants declared that the actions of the Committee were to be conclusive and binding on all interested parties. Accordingly, the Guidelines, as established and applied by the Committee, had the same legal binding effect on the Yoders as the covenants which authorized the Guidelines.
{¶17} The evidence indicates that the Yoders had notice of the approval process when they purchased the lot from Connolly. Accordingly, we concur with the trial court's determination that the restrictive covenants, and, therefore,...
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