DeRosa v. Parker

• Decision Date: 16 November 2011
• Docket Number: No. 10 MA 84.,10 MA 84.
• Parties: DeROSA et al., Appellees, v. PARKER, Appellant.
• Court: Ohio Court of Appeals

197 Ohio App.3d 332

967 N.E.2d 767

2011 -Ohio- 6024

DeROSA et al., Appellees,

v.PARKER, Appellant.

No. 10 MA 84.

Court of Appeals of Ohio,

Seventh District, Mahoning County.

Decided Nov. 16, 2011.

Roth, Blair, Roberts, Strasfeld & Lodge, James E. Roberts, Elizabeth H. Farbman, and John A. McNally IV, Youngstown, for appellees.

Pfau, Pfau & Marando and Michael P. Marando, Canfield, for appellant.

WAITE, Presiding Judge.

[Ohio App.3d 337]{¶ 1} Appellant, Barbara Toulmin Parker appeals the judgment of the Mahoning County Court of Common Pleas permanently enjoining her from storing her husband's recreational vehicle (“RV”) on her property. Appellant's home is located in a platted development in Canfield, Ohio. Appellees also own property in the development. Appellant purchased the property subject to a deed restriction prohibiting house trailers from being parked or stored on the premises. Appellant built a garage to keep the RV out of sight, but appellees nevertheless filed suit to enforce the deed restriction. Appellant argues on appeal that the RV is not a house trailer as defined in the deed restrictions, that her deed does not actually contain the restriction against house trailers, that the deed restrictions were revoked, that the restriction can no longer be enforced based on theories of laches, estoppel, or unclean hands, and that no evidence of irreparable harm was submitted to justify granting a permanent injunction. The record reflects that the vehicle being kept on appellant's property is a house trailer as contemplated by the deed restrictions. Appellant was bound by the deed restriction, as it is in her chain of title. The deed restrictions were not revoked through use of the mechanism for revocation set forth in the restrictions, and thus, they remain valid. Nothing in the record indicates that the doctrines of laches, estoppel, or unclean hands apply to this case. Finally, deed restrictions may be enforced whether or not there is additional evidence of irreparable harm. Appellant's arguments are overruled, and the judgment of the trial court is affirmed.

History of the Case

{¶ 2} Appellant owns property at 211 Chapel Lane in Canfield Township. The property is part of a platted development known as Chapel Lane plat. Appellees are eight other homeowners in the development. In 1965, a series of restrictions on the plat were recorded. Deed restriction No. 9 prohibited owners from keeping house trailers on their property. Appellant's husband, James Parker, owns an RV that is 34 feet long and 12 feet high. The vehicle is self-propelled and has full utilities, sleeping quarters, a bathroom, and a shower. Mr. Parker [Ohio App.3d 338]regularly parked the vehicle on appellant's property. In early 2007, appellant began building a large garage to store the RV on her property. In May 2007, appellees sent a letter to appellant objecting to the garage and to the continued storage of the RV on the property. Appellees filed a suit for injunctive relief on August 9, 2007.

{¶ 3} The case was assigned to a magistrate, and a hearing for preliminary injunction was held on August 22, 2007. Appellant's husband and four of the appellees testified at the hearing. The magistrate filed his decision on October 10, 2007. The magistrate examined the deed restrictions and determined that in his view, appellant was not violating any of the restrictions. Appellees filed objections on October 23, 2007. One of those objections was that the magistrate had improperly concluded that the vehicle parked on appellant's property was not a house trailer. The court held a hearing on the objections on December 28, 2007. The court filed its judgment entry on January 7, 2008. The court adopted the bulk of the magistrate's decision, except that it specifically did not adopt the magistrate's conclusion regarding whether Mr. Parker's vehicle constituted a house trailer. The court noted that Mr. Parker's vehicle appeared to fit the definition of a house trailer. The court remanded the matter to the magistrate for further consideration of the request for injunctive relief. Appellant filed an appeal of the judgment entry, but the appeal was later dismissed for lack of a final, appealable order.

{¶ 4} On June 26, 2008, the magistrate found that Mr. Parker's vehicle was a house trailer as contemplated by deed restriction No. 9 and granted a preliminary injunction to appellees enjoining appellant from storing the vehicle at her residence. The decision was reissued on July 18, 2008, and appellant filed objections. The objections were heard on August 29, 2008. The court filed its judgment entry on September 8, 2008. The court accepted the magistrate's conclusion that the vehicle was a house trailer and sustained appellees' motion for a preliminary injunction with respect to deed restriction No. 9. Appellant filed an appeal of this judgment entry, but it was also dismissed for lack of final, appealable order.

{¶ 5} The magistrate held a hearing on August 6, 2009, to determine whether a permanent injunction should be granted. The magistrate filed his decision on February 25, 2010. The magistrate found that all the parties were subject to the deed restrictions recorded with the Mahoning County recorder on September 30, 1965. Deed restriction No. 9 stated: “No house trailer, whether occupied or vacant, shall be kept, parked or stored on the premises.” The magistrate noted that the deed restrictions are included throughout the chain of title by which appellant took title to the property. The magistrate again found that Mr. Parker's vehicle was a house trailer and granted the permanent injunction. [Ohio App.3d 339]Appellant filed objections, and a hearing on the objections was held on March 31, 2010. The trial court filed its judgment entry on April 16, 2010, adopting the magistrate's decision in its entirety and entering a permanent injunction in favor of appellees to enjoin appellant from housing or storing Mr. Parker's vehicle on the property. This timely appeal followed on May 11, 2010.

Assignment of Error No. 1

{¶ 6} “The trial court erred as a matter of law in determining that appellant's vehicle was a house trailer in violation of the restrictive covenants.”

{¶ 7} Appellant argues that her husband's RV is not a house trailer as contemplated by deed restriction No. 9, and thus that there is no reason to enjoin her from having the vehicle on her property. She argues that the term “house trailer” is ambiguous in the deed restrictions and that the ambiguity must be interpreted in her favor to give her free use of her land. She argues that the common, ordinary meaning of “house trailer” does not include a motor home or RV and that this court, using a de novo standard of review, should reverse the interpretation of the trial court and hold that deed restriction No. 9 is unenforceable. Although appellant correctly cites most of the general law applicable to this case, her specific argument is not persuasive in light of the particular deed restriction at issue.

{¶ 8} The ordinary rules of construction applicable to the interpretation of contracts are to be applied when interpreting deed restrictions. LuMac Dev. Corp. v. Buck Point Ltd. Partnership (1988), 61 Ohio App.3d 558, 565–566, 573 N.E.2d 681. “The construction of written contracts and instruments, including deeds, is a matter of law.” Long Beach Assn., Inc. v. Jones (1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208. Questions of law are determined de novo on appeal. Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313, 667 N.E.2d 949.

{¶ 9} Restrictive covenants establishing plans for the development of a tract of property that make the property more attractive for residential purposes are generally enforceable unless contrary to public policy. Dixon v. Van Sweringen Co. (1929), 121 Ohio St. 56, 166 N.E. 887, paragraph one of the syllabus; Wallace v. Clifton Land Co. (1915), 92 Ohio St. 349, 110 N.E. 940, paragraph one of the syllabus. Moreover, “[a] present owner of a lot subject to a restriction has the right to enforce the same or similar restrictions imposed upon the other lots by a common grantor * * *.” Devendorf v. Akbar Petroleum Corp. (1989), 62 Ohio App.3d 842, 845, 577 N.E.2d 707. If the language in a restrictive covenant is clear and not doubtful in meaning, the court must enforce the restriction. Cleveland Baptist Assn. v. Scovil (1923), 107 Ohio St. 67, 71–72, 140 N.E. 647. “Proof of actual damage is not required as a basis for granting [Ohio App.3d 340]injunctive relief regarding deed restrictions.” Goutras v. Dillon–McDonald (Sept. 30, 1991), 5th Dist. No. CA–8349, 1991 WL 207949.

{¶ 10} The words used in a deed restriction will be given their common and ordinary meaning in the context of the time that the restriction was created. Arnoff v. Chase (1920), 101 Ohio St. 331, 335, 128 N.E. 319. “The court must construe the language of the covenant by giving it its common and ordinary meaning in light of the factual circumstances surrounding the writing of the restrictive covenant.” Benner v. Hammond (1996), 109 Ohio App.3d 822, 827, 673 N.E.2d 205. “In construing deed restrictions limiting the use and enjoyment of real property, the intention of the parties as evidenced by the terms of the restriction and the surrounding circumstances, both of the parties and the subject matter, at the time of execution is the fundamental consideration. Hitz v. Flower (1922), 104 Ohio St. 47, 57, 135 N.E. 450, 453.” LuMac Dev. Corp., 61 Ohio App.3d at 565, 573 N.E.2d 681. “[O]ne looks at the intention of the grantor and grantee at the time of execution.” (Emphasis sic.) Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463, ¶ 50–51 (7th Dist.).

{¶ 11} In addition, courts must read the restrictive covenants as a whole. LuMac Dev. Corp., 61 Ohio App.3d at 563, 573 N.E.2d 681.

{¶ 12} If the language in a restrictive covenant is clear and there is no doubt in...