Dean v. Nugent Canal Yacht Club, Inc.
Decision Date | 16 March 1990 |
Docket Number | No. OT-89-16,OT-89-16 |
Citation | 585 N.E.2d 554,66 Ohio App.3d 471 |
Parties | DEAN et al., Appellants, v. NUGENT CANAL YACHT CLUB, INC. et al., Appellees. * |
Court | Ohio Court of Appeals |
Terrence R. Rudes, Port Clinton, for appellants.
John A. Coppeler, Sandusky, and George C. Wilber, Port Clinton, for appellees.
This matter is before the court on appeal from the judgment of the Ottawa County Court of Common Pleas dated March 31, 1989, wherein the trial court granted summary judgment in favor of defendant-appellee, Nugent Canal Yacht Club, Inc.
Appellants, Joseph Dean and others, sought an injunction against appellee, Nugent Canal Yacht Club, Inc. (the "Club"), to prohibit use of lots thirty-one and thirty-two in Plat Nine of Nugent's Canal Point Subdivision by the Club for social gatherings. In 1964, the Club purchased a parcel of land in the subdivision from Vincent H. and Agnes D. Nugent for purposes of building a club house. In 1968, the Club acquired lots numbered thirty-one and thirty-two in the same subdivision from the Nugents. This deed was subject to a Declaration of Restrictions recorded by the Nugents in 1965. The Declaration of Restrictions provided in pertinent part that:
Since 1968, the Club has used lots thirty-one and thirty-two for occasional outdoor functions and has placed tents on the property for such use. In July 1987, the Club constructed a shelter house on lots thirty-one and thirty-two for use in connection with more regular social gatherings. In October 1987, appellants brought this action against the Club and also the Nugent Canal Property Owners Association because appellants were disturbed by the increase in the volume of activities, the additional lighting to the area, and the noise caused by the people and music.
Following the filing of cross-motions for summary judgment, the trial court found that appellees were entitled to partial judgment. The court held that the construction of the shelter house was not a violation of the restrictions because the shelter was not used for commercial purposes. Furthermore, the court held that appellants' claim that the use of the lots for social gatherings violated the restrictions was barred by the doctrine of laches. Summary judgment was denied with regard to the issue of whether the current use of the property disturbed the quiet of adjacent land owners and, therefore, violated paragraph seven of the Declaration of Restrictions. The court added that there was no just reason why its judgment granting summary judgment in favor of appellees should not be entered as a final order. Therefore, appellants sought an immediate appeal of this judgment to this court and assert on appeal the following assignments of error:
Summary judgment, as provided for in Civ.R. 56(C), is an appropriate means to terminate litigation before trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, 24 O.O.3d 1, 433 N.E.2d 615, 616. To determine whether summary judgment is proper, a three-part test must be satisfied: "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.
We have consolidated appellants' first, third, and fifth assignments of error because they present a single issue: Does the construction of the shelter house on lots thirty-one and thirty-two for the Club's social gatherings violate the Declaration of Restrictions?
It has been repeatedly held by the Supreme Court of Ohio that Houk v. Ross (1973), 34 Ohio St.2d 77, 63 O.O.2d 119, 296 N.E.2d 266, paragraph two of the syllabus, overruled on other grounds by Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335. Where the language in the restriction is clear, the court must enforce the restriction. Otherwise, the court would be rewriting the restriction. Cleveland Baptist Assn. v. Scovil (1923), 107 Ohio St. 67, 72, 140 N.E. 647, 649. The key issue is to determine the intent of the parties as reflected by the language used in the restriction. Larwill v. Farrelly (1918), 8 Ohio App. 356, 360.
The trial court below held that appellants' claim that the use of the property violated the restrictions was barred by the doctrine of laches. It did not determine whether the use did, in fact, violate the restrictions. Therefore, we will address only the issue of whether the construction of the shelter house violated the restrictions.
The trial court held that the Club's shelter house did not violate the restrictions relying on Hunt v. Held (1914), 90 Ohio St. 280, 107 N.E. 765. In the Hunt case, the court held that a restriction barring the use of property for other than residential purposes did not bar the use of the property to construct an apartment house. The Hunt court interpreted the word "residence" as referring to the type of use and not the type of structure. Therefore, the trial court below interpreted the restrictions as barring a commercial structure and not a shelter house built by a non-profit organization.
Upon a review of the Declaration of Restrictions, we find that the emphasis is not upon whether the use of the premises is for commercial or non-commercial purposes. Rather, the grantors' intention was that the property be used solely for the common activities of a single family. While the phrase "single family" may be subject to interpretation as to what constitutes a single family, the most liberal generalization of the term would be that it refers to a social unit of people who reside in a...
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