Peter K. Ormond v. Rollingbrook Estates Homeowners Association
| Decision Date | 07 December 2000 |
| Docket Number | 76482,00-LW-6119 |
| Parties | PETER K. ORMOND, Plaintiff-appellant v. ROLLINGBROOK ESTATES HOMEOWNERS ASSOCIATION, ET AL., Defendants-appellees |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case No. CV-369885
Affirmed. Motion No. 07435 to dismiss is overruled.
For plaintiff-appellant: JEFFREY S. DUNLAP, ESQ., RONALD H ISROFF, ESQ., ULMER & BERNE, 1300 East Ninth Street, #900 Cleveland, Ohio 44114
For defendants-appellees: DAVID J. PASZ, ESQ., 14910 Pearl Road, Strongsville, Ohio 44136, DAVID J. MATTY, ESQ., ROBERT C. McCLELLAND, ESQ., RADEMAKER, MATTY, McCLELLAND & GREVE, 55 Public Square, Suite 1775, Cleveland, Ohio 44113
Peter K. Ormond sued the Rollingbrook Estates Homeowners Association (hereafter REHA ), of which he is a member, neighbors Donald and Pamela Washkewicz, and the City of Solon, Ohio (hereafter Solon ), for injunctive, declaratory, and monetary relief in the Cuyahoga County Common Pleas Court. Ormond sought a ruling that a detached garage the Washkewiczes were constructing on their property was being built in violation of the declarations of restrictions and by-laws of REHA and that the Washkewiczes were wrongfully granted a variance by the City of Solon without notice to Ormond. The trial court denied Ormond's application for a temporary restraining order and, following a hearing on Ormond's application for preliminary and permanent injunctive relief, rendered judgment in favor of REHA and the Washkewiczes after finding that the detached garage did not violate REHA's declaration of restrictions or by-laws. The court separately dismissed Ormond's claims for relief against Solon. Upon consideration of Ormond's appeal, we conclude that the trial court correctly rendered judgment in favor of REHA and the Washkewiczes and correctly dismissed Ormond's damages claim against Solon. The writer believes that the trial court erred in dismissing Ormond's claim for declaratory and injunctive relief against Solon. The majority, however, believes that there being no remedy for any such error, the judgment of the trial court should be affirmed. We therefore affirm, although the writer would affirm in part and reverse in part.
The Rollingbrook subdivision was developed by Transco Construction, Inc., in Solon, Ohio. Each sublot in Rollingbrook Estates contains five acres of land. The sublots were designed to be exclusive, estate-type lots. Transco authored and placed certain declarations of restrictions on the lots in the Rollingbrook subdivision on August 6, 1986 and again by amendment on January 28, 1988. Transco eventually turned over control of the deed restrictions to the Rollingbrook Estate Homeowners Association (REHA).
Donald and Pamela Washkewicz own the property located at 7400 Rollingbrook Trail. Their home consists of a one-family dwelling and an attached four-car garage with a side entrance. Peter Ormond owns the property at 7420 Rollingbrook Trail, which is contiguous to the Washkewiczes' property. Ormond has invested between $1 million and $2 million into his home and property.
Sometime in early 1997, the Washkewiczes began designing a detached four-car garage to be placed on their property. The proposed garage was to be constructed of the same materials to match the main dwelling and was to be located separately on the side of the Washkewiczes' dwelling extending into the front yard portion of their land. The foundation and ground level of the garage was to be located no closer than 25 ft. from any sideline or 150 ft. from the rear line.
On October 18, 1997, Pamela Washkewicz attended a clambake hosted by Dick Nelson, the sole member of REHA's architectural review committee. Mrs. Washkewicz showed the original plans for the proposed garage to all attending association board members and officers, including Dick Nelson and Wolfgang Mueller, who was the President of REHA at the time. Ormond did not attend the clambake. The original architectural drawings were not accompanied by information on the proximity or spacial relationship between the proposed detached garage and the Washkewiczes' property or dwelling. No officer or REHA board member ever expressed any adverse concerns over the proposed structure.
REHA's by-laws do not specifically mandate that a special or formal meeting be held for the purpose of obtaining approval for construction.REHA has the discretion to determine in what manner approval is to be sought. On October 21, 1997, REHA President Mueller gave the Washkewiczes written approval for their proposed detached four-car garage.
The Washkewiczes filed declarations of restrictions with the county declaring that the structure would not be used as a carriage house or living quarters or be otherwise occupied. The City of Solon issued a building permit for the Washkewiczes to build the detached garage structure. The Washkewiczes entered into a building contract with R & D Contractors to construct the detached garage for a contract price of approximately $80,000.00.[1]
Construction had begun and the Washkewiczes had spent at least $30,000.00 when Ormond, having observed the construction in progress, filed this action on November 19, 1998 for injunctive and declaratory relief against REHA, the Washkewiczes, and the City of Solon.[2] Ormond alleged that the Washkewiczes' detached garage violated the deed declarations applicable to the Rollingbrook Estates. The trial court denied Ormond's application for a temporary restraining order and, after expedited discovery, conducted an evidentiary hearing on December 29, 1998, on Ormond's motion for preliminary injunction. Exercising its discretion under Civil Rule 65, the court deemed the hearing to be a trial on the merits with respect to Ormond's claims for injunctive relief against REHA and the Washkewiczes. The court also granted Ormond leave to file a supplemental motion for preliminary and permanent injunction addressing matters learned from a survey the court allowed Ormond to conduct after the December 29, 1998 evidentiary hearing.
On April 9, 1999, the trial court ruled against Ormond on all claims. The court rendered findings of fact and conclusions of law as to Ormond's claims against REHA and the Washkewiczes and, by separate entry, dismissed Ormond's amended complaint against Solon. On April 20, 1999, Ormond filed a motion pursuant to Rule 59 of the Ohio Rules of Civil Procedure seeking to amend the court's findings of fact and conclusions of law based on newly discovered evidence. On April 26, 1999, the court denied Ormond's motion. Ormond appealed on May 24, 1999.[3]
Ormond's first and second assignments of error assert:
Rather than arguing these assignments of error separately, see App.R. 16(A)(7), Ormond's brief discusses them jointly and contends that the court erred in denying him injunctive relief against REHA and the Washkewiczes because the detached garage violated the deed restrictions.We will likewise address these assignments of error jointly. We find that they are not well taken.
When deciding whether to grant injunctive relief, courts consider: (1) whether the party seeking injunctive relief is likely to succeed on the merits; (2) whether issuing injunctive relief will prevent irreparable harm for which there exists no adequate remedy at law; (3) whether and to what extent others will be injured by granting such relief; and (4) whether the public interest will be served by granting injunctive relief. See Cleveland v. Cleveland Elec. Illum. Co. (1996), 115 Ohio App.3d 1, 12; Corbett v. Ohio Bldg. Auth. (1993), 86 Ohio App.3d 44, 49. The party seeking injunctive relief must establish its right to such relief by clear and convincing evidence. See Zavakos v. Zavakos Enterprises, Inc. (1989), 63 Ohio App.3d 100, 103; Southern Ohio Bank v. Savings Assn. (1976), 51 Ohio App.2d 67. The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion. Garono v. State (1988), 37 Ohio St.3d 171, 173.
In this case, Ormond sought injunctive relief on the basis that the construction of a detached garage on the Washkewiczes' property violated the declaration of restrictions. Restrictive covenants establishing a general building scheme or plan 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. The Van Sweringen Co. (1929), 121 Ohio St. 56, syllabus at para. 1; Benner v. Hammond (1996), 109 Ohio App.3d 822, 827. An owner of a lot subject to deed restrictions may maintain an action to enforce the same restrictions imposed upon other lots by a common grantor. Wallace v. The Clifton Land Co. (1915), 92 Ohio St. 349, syllabus at para. 1; Catawba Orchard Beach Assn., Inc. v. Basinger (1996), 115 Ohio App.3d 402, 407; Devendorf v. Akbar Petroleum Corp. (1989), 62 Ohio App.3d 842, 845.
Determining whether the structure built on the Washkewiczes' property violated the deed restrictions requires the application of certain time-honored rules of law.
The first and most fundamental of these rules of course is that of arriving at the intention of the parties from the language used.
The second is that the language be construed strictly against the restrictions and in favor of the free use of property. This is a settled rule of construction, based upon the old principle that restrictions are not...
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