Emerald Estates Homeowners Assn., Inc. v. Albert, 2009 Ohio 6627 (Ohio App. 12/14/2009)
| Decision Date | 14 December 2009 |
| Docket Number | No. 2009 CA 00072.,2009 CA 00072. |
| Citation | 2009 Ohio 6627 |
| Parties | Emerald Estates Homeowners, Association, Inc., Plaintiff-Appellee, v. Marc A. Albert, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Larry A. Zink, 3711 Whipple Avenue, NW, Canton, Ohio 44718, for Plaintiff-Appellee.
James R. Recupero, 4033 Whipple Avenue, NW, Suite C, Canton, Ohio 44718, for Defendant-Appellant.
Before: Hon. Sheila G. Farmer, P. J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.
{¶1} Defendant-Appellant Marc A. Albert appeals the February 24, 2009, Judgment Entry of the Stark County Court of Common Pleas granting judgment in favor of Plaintiff-Appellee Emerald Estates Homeowners Association, Inc.
{¶2} In April, 2007, Appellant Marc A. Albert erected a fence on his property, which is located in the Emerald Estates Subdivision, Phase 6C, in Canal Fulton, Stark County, Ohio. (T. Vol. II, at 113). This fence was made of wood, ran the entire length of Appellant's backyard and was approximately 120 feet long, 6 feet high and was not connected to or attached to Appellant's house.
{¶3} Prior to erecting such fence, Appellant did not submit any drawings to the Architectural Review Board.
{¶4} On, June 29, 2007, Appellant Albert received a letter concerning the fence from Appellee Emerald Estates Homeowner's Association informing Appellant that he was in violation of the homeowners association's covenants and restrictions. (T. Vol. II, at 133). A second letter, similar in content was sent on July 12, 2007. (T. Vol. II, at 134). On August 30, 2007, a third letter from Appellee's counsel was sent to the Appellant. (T. Vol. II, at 135). This correspondence stated that Appellant was in violation of the restrictions governing Emerald Estates because he failed to submit an application for approval of his fence. The letter demanded immediate removal of the offending fence.
{¶5} On October 2, 2007, Appellee Emerald Estates Homeowners Association, Inc. filed its Complaint against Appellant Marc. A. Albert seeking the removal of the fence erected on Appellant Albert's property.
{¶6} On November 29, 2007, Appellee Emerald Estates filed a Motion for Default Judgment.
{¶7} On November 30, 2007, Appellant Albert filed his Answer.
{¶8} On December 24, 2007, Appellee Emerald Estates filed a Motion for Summary Judgment.
{¶9} On December 31, 2007, the trial court granted a default judgment, but vacated same on January 11, 2008.
{¶10} On January 25, 2008, Appellant Albert filed his Response to Plaintiff's Motion for Summary Judgment, to which Appellee responded on February 6, 2008.
{¶11} By Judgment Entry filed May 30, 2008, the trial court overruled Appellee's Motion for Summary Judgment.
{¶12} On June 10, 2008, this matter proceeded to trial before Magistrate Hamilton.
{¶13} On September 18, 2008, the magistrate issued her decision.
{¶14} Appellant Albert submitted his Objections to the Magistrate's Decision on October 1, 2008.
{¶15} Appellant supplemented his objections on October 30, 2008.
{¶16} After being granted an extension of time, Appellee Emerald Estates submitted its Response to Appellant's Supplemental Objections on November 19, 2008.
{¶17} After also being granted an extension, Appellant Albert submitted his Reply to Appellee's Response on December 9, 2008.
{¶18} By Judgment Entry filed February 24, 2009, the trial court issued its decision adopting the Magistrate's Decision and overruling Appellant's objections.
{¶19} It is from this decision Appellant now appeals, assigning the following errors for review.
{¶20} "I. THE TRIAL COURT'S JUDGMENT ENTRY IN THIS MATTER GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE GIVEN THAT APPELLEE HAD ACQUIESCED TO PREVIOUS VIOLATIONS OF THE RESTRICTIVE COVENANTS AND WAIVED ENFORCEMENT OF THE SAME, WHICH RESULTED IN THE RESTRICTIONS AND COVENANTS HOLDING LITTLE VALUE.
{¶21} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN ALLOWING APPELLEE EMERALD ESTATES TO ADMIT EVIDENCE WHICH WAS NOT EXCHANGED IN DISCOVERY.
{¶22} "III. THE TRIAL COURT'S JUDGMENT ENTRY IN THIS MATTER GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS ERR [SIC] AS A MATTER OF LAW IN THAT A DECORATIVE FENCE IS PERMITTED AND IS NOT PREDISPOSED TO NOT BE APPROVED BY THE EMERALD ESTATES HOMEOWNERS ASSOCIATION ARCHITECTURAL REVIEW BOARD.
{¶23}
{¶24} In his first assignment of error, Appellant argues that the trial court's decision was against the manifest weight of the evidence. We disagree.
{¶25} Specifically, Appellant argues that the trial court erred in not finding that Appellee had waived enforcement of, and/or acquiesced in violations of its restrictive covenants as to fences.
{¶26} In civil cases, if some competent, credible evidence supports all the essential elements of the case, a reviewing court will not reverse the judgment as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280. In determining whether a civil judgment is against the manifest weight of the evidence, a presumption that the findings of the trial court are correct guides an appellate court. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id. This Court may not substitute our judgment for that of the trier of fact. Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 621.
{¶27} The restrictive covenant at issue in this case is contained in Article V, Section 21 of the Master Documents of Emerald Estates and reads as follows:
{¶28}
{¶29} In the case sub judice, the restriction on fences represents an attempt to preserve the open, green space design on which the development was built. As there is no issue before this Court that Appellant did not have notice of these restrictions, absent proof of abandonment and/or waiver, we must find that the trial court did not err in enforcing the restrictive covenant at issue.
{¶30} Appellant argues that Appellee had actual and/or constructive knowledge of numerous violations of its restrictive covenants, including the existence of other fences and that Appellee did not enforce the conditions and restrictions, therein waiving enforcement of same.
{¶31} With respect to an assertion of waiver or abandonment, "the test is whether, under the circumstances, there is still a substantial value in such restriction, which is to be protected; and where there is a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant * * *." Romig v. Modest (1956), 102 Ohio App. 225, paragraph three of the syllabus; see, also, Landen Farm Community Services Ass'n, Inc. v. Schube (1992), 78 Ohio App.3d 231, 235. A party alleging a waiver and/or abandonment has the burden of proving his or her allegations. Id. at paragraph four of the syllabus.
{¶32} This Court has previously held that when there has been a general acquiescence in the violation of the restriction, the restriction is rendered unenforceable. Colonial Estates Home Owners Ass'n, Inc. v. Burkey (Oct. 7, 1997), 5th Dist. No. 97AP020013.
{¶33} Upon review, we find that none of the other fence "violations" claimed by Appellant were similar in nature to his 120 foot long, six foot high wooden fence. Instead, the majority of these fences appeared to be decorative in nature, white, picket-style, and made of PVC or resin. Fences for decorative purposes are an exception to the restrictive covenant.
{¶34} Furthermore, Appellee provided evidence to the trial court that it had sent out violation notices to enforce the fence restrictions once it had become aware of such.
{¶35} In further support of its active enforcement of the fence restrictions, was a lawsuit brought against other homeowners for violating this restriction, seeking removal of a fence.
{¶36} Additionally, Appellees provided evidence of enforcement of other restrictive conditions in the form of letters from the Homeowners Association seeking removal of offending fences, pets using neighbor's yards, parked vehicles left in a state of disrepair, the placement of a swingset in the common, open-space area, the removal or re-location of lawn ornaments, grass clippings being dumped in the common area, etc {¶37} Based on the foregoing, we find that there was competent, credible evidence presented at trial in support of Appellee's enforcement of the restrictive...
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