Houk v. Ross

• Decision Date: 02 May 1973
• Docket Number: No. 72-321,72-321
• Citation: 34 Ohio St.2d 77,63 O.O.2d 119,296 N.E.2d 266
• Parties: , 63 O.O.2d 119 HOUK et al., Appellees, v. ROSS, Appellant.
• Court: Ohio Supreme Court

Page 77

34 Ohio St.2d 77

296 N.E.2d 266, 63 O.O.2d 119

HOUK et al., Appellees, v. ROSS, Appellant.

No. 72-321.

Supreme Court of Ohio.

May 2, 1973.

Syllabus by the Court

1. An entry of summary judgment, pursuant to Civ.R. 56, against the moving party by a Court of Appeals does not prejudice the moving party's 'due process' rights where all the evidence material to the issue being litigated is before the court, and the record shows that no genuine issue as to any material fact exists and that the nonmoving party is entitled to judgment as a matter of law.

2. Where the language contained in a deed restriction is indefinite, doubtful and capable of contradictory interpretation, that construction must be adopted which least restricts the free use of the land. (Hunt v. Held, 90 Ohio St. 280, 107 N.E. 765; Frederick v. Hay, 104 Ohio St. 292, 135 N.E. 535, approved and followed.)

3. Deed restrictions entered into between property owners which limit the use of the property subject to the restrictive covenants-'that not more than one residence shall be built upon any of said tracts' and 'that the said premises shall be used for residence purposes only'-must be construed so as to prohibit only the construction of more than one building on each of said lots and the use of the lots for other that residence purposes, and such restrictions do not prohibit the construction of a multiple-family dwelling or residence.

The properties of the appellees and appellant herein are located in the Whipple Heights Allotment, Perry Township, Stark County, Ohio. The allotment was platted in three phases: Whipple Heights, encompassing lots 1 through 140; Whipple Heights No. 2, encompassing lots 141 through 240; and Whipple Heights No. 3, encompassing lots 241 through 261.

Each of the lots in the three allotments is subject to, among others, the following deed restrictions imposed by The Whipple Heights Realty Company:

'2. That not more than one residence shall be built upon any of said tracts.

'3. That the said premises shall be used for residence purposes only.'

The present action was brought to enjoin the appellant, Ralph O. Ross, from 'any other further construction' of a duplex residence on his property, alleging that construction of said duplex residence would be in violation of provisions 2 and 3 of the deed restriction.

Prior to the time that the appellant began construction of his duplex on his property, duplex residential structures had been constructed on 13 of the 261 lots in the allotment. These duplex structures, identified in the deposition of the appellant as Exhibits 1 through 9, had been constructed in Whipple Heights, and the structures identified in Exhibits 11, 16, 17 and 18 had been constructed in Whipple Heights No. 2. There are no duplex structures in Whipple Heights No. 3. The remaining structures, Exhibits 10, 12, 13, 14, 15, 19 and 20, are located outside the Whipple Heights Allotments and are not subject to the deed restrictions in question. Appellant's duplex is so constructed that it may be used for either one-family occupancy or two-family occupancy.

The Court of Common Pleas sustained appellant's motion for summary judgment, and dismissed the petition basing its decision upon the authority of Frederick v. Hay (1922), 104 Ohio St. 292, 135 N.E. 535. The court also found that the character of the neighborhood had changed so that no valid objection could be maintained against the construction of appellant's duplex.

The Court of Appeals reversed the judgment for appellant and rendered a final judgment for appellees, permanently injoining the use of appellant's previously constructed duplex residence 'as a duplex or multiple family residence, or for other than residence purposes.' No motion for summary judgment had been filed by the appellees.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Amerman, Burt & Jones Co., L. P. A., and Jacob F. Hess, Jr., Canton, for appellees.

Day, Ketterer, Raley, Wright & Rybolt and Clyde H. Wright, Caton, for appellant.

CORRIGAN, Justice.

Appellant's first two propositions of law deal with the reversal and entry of summary judgment by the Court of Appeals against the appellant-movant.

Appellant argues that reversal by an appellate court of an entry of summary judgment and the subsequent rendering of summary judgment against the movant, in a civil action, constitutes a violation of Section I of the Fourteenth Amendment to the United States Constitution and Article I, Section 12 of the Constitution of the state of Ohio, as a denial of 'due process,' and the right to trial by jury under the Seventh Amendment to the United States Constitution.

Appellant also argues that in a civil action a Court of Appeals has no authority, upon appeal, to enter summary judgment sua sponte, but may do so only upon motion of a party; that no motion for summary judgment was made by appellees in the present case.

Considering, first, appellant's second argument, we refer to App.R. 12(B), which reads:

'* * * When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order * * *.' (Emphasis added.)

That rule clearly indicates that the Court of Appeals has the authority to reverse a judgment or final order of a trial court and render the judgment or final order that the trial court should have rendered. In the absence of specific language to the contrary, the phrase 'should have rendered' cannot be interpreted to extend authority to the Court of Appeals beyond that granted the trial court.

The trial court's authority in regard to summary judgment procedure in civil actions is set forth in Ohio Rules of Civil Procedure, Civ.R. 56.

Civ.R. 56(B), which provides for the rendering of summary judgment for the defending party, states only that the defending party '* * * may at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part * * *' of the claim, counterclaim, or cross-claim asserted against him. This rule neither specifically provides for summary judgment against the movant nor does it specifically prohibit such judgment.

Civ.R. 56(C), in setting out the standards for granting summary judgment, likewise fails to provide for the granting of summary judgment against the movant.

Three states, New York, Maryland and Wisconsin, do provide for the granting of summary judgment against the movant, either through specific language in summary judgment statutes or by rules of court. See annotation, 48 A.L.R.2d 1188, 1197, and Later Case Service.

The relevant language in Civ.R. 56 consistently refers to a 'motion' for summary judgment, and that a party may 'move' for such a judgment. However, in view of the rule of construction expressed in Civ.R. 1(B), that 'these rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expenditious administration of justice,' we prefer to base our decision upon an examination of the constitutional limitations to the granting of summary judgment against the moving party rather than upon a technical interpretation of Civ.R. 56.

That question is one of first impression for this court. Only one Ohio appellate court has considered the issue. In Napier v. Banks (1967), 9 Ohio App.2d 265, 224 N.E.2d 158, the Court of Appeals for Madison County held that the trial court had no authority, under former R.C. § 2311.041, to enter summary judgment sua sponte, but may do so only upon motion of a party, and where one party, only, files such motion, the court may not, upon hearing and overruling the motion, enter summary judgment for the other party.

That case, however, was decided upon a technical construction of the then existing Ohio summary judgment statute, R.C. § 2311.041, which has since been repealed and superseded by Civ.R. 56.

Civ.R. 56 is virtually identical to the federal rule, F.R.C.P. 56, after which it was patterned. There is some disagreement among the federal courts interpreting the federal rule as to the propriety of granting summary judgment against the movant. See 48 A.L.R.2d 1191 et seq., and Later Case Service; 6 Moore's Federal Practice (2 Ed.), Par. 56.12. The majority of the federal district and appellate courts have supported the position that summary judgment may be entered against the movant,* provided that care has been taken by the district court in determining that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law. 6 Moore's Federal Practice (2 Ed.), 2243, Par. 56.12.

The limitation upon federal courts, as to exercising care in determining whether the movant has had the opportunity to exercise his 'due process' rights in meeting the proposition that there is no genuine issue of material fact to be tried, was established by the United States Supreme Court in Fountain v. Filson (1949), 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971.

That court, in a per curiam opinion, reversed an order for summary judgment entered by the Court of Appeals for the District of Columbia against the movant-defendant, Fountain, under a procedural situation similar to that in the present case. The Supreme Court's reversal, however, was based upon the fact that, although the Court of Appeals had agreed with the trial court's order of summary judgment for defendant upon...