Robert G. Sellers v. Bunnell Hill Development Co., 90-LW-2951

• Decision Date: 13 August 1990
• Docket Number: 90-LW-2951,CA89-11-069
• Parties: Robert G. SELLERS, Plaintiff-Appellant, v. BUNNELL HILL DEVELOPMENT CO., Defendant-Appellee.
• Court: Ohio Court of Appeals

Robert G. SELLERS, Plaintiff-Appellant, v. BUNNELL HILL DEVELOPMENT CO. Defendant-Appellee.

No. CA89-11-069.

90-LW-2951 (12th)

Court of Appeals of Ohio, Twelfth District, Warren County.

August 13, 1990

Kirby &amp West Co., L.P.A., Richard E. West, Springboro, for plaintiff-appellant.

Coolidge Wall, Womsley & Lombard Co., L.P.A., John A. Cumming, Dayton for defendant-appellee.

MEMORANDUM DECISION AND JUDGMENT ENTRY

PER CURIAM.

This cause came on to be heard upon an appeal, transcript of the docket, journal entries and original papers from the Warren County Court of Common Pleas, transcript of proceedings briefs and oral arguments of counsel.

Now, therefore, the assignments of error having been fully considered are passed upon in conformity with App.R. 12(A) as follows:

This is an appeal by plaintiff-appellant, Robert G. Sellers, from a decision of the Warren County Court of Common Pleas in favor of defendant-appellee, Bunnell Hill Development Company, Inc.

On July 26, 1986, Pleasant Valley Farms, Inc. was the owner of several parcels of real estate which it intended to develop as the Springboro Business Park. On that date, Bunnell Hill as "land developer" executed a document entitled "Springboro Business Park Development Standards." This document was subsequently recorded with the Warren County Recorder. It set out certain restrictions and requirements pertaining to the development of the various parcels of real estate, including the following:

"V. SPECIAL CONDITIONS

" * * *

"B.Right of Repurchase. If any Owner fails to commence construction of a building upon a Building Site purchased by such Owner within a two (2) year period commencing with the date of a conveyance from Declarant to an Owner, other than Declarant, Declarant shall have the right to repurchase the Building Site at any time within one hundred and eighty (180) days after the expiration of said two (2) year period upon giving fifteen (15) days prior written notice of its intention to repurchase to said Owner. * * *."

On October 27, 1986, Pleasant Valley Farms conveyed one parcel of real estate to Robert and Donna Howell "subject to all * * * conditions and restrictions of record." At the same time, the Howells signed a document entitled "Supplement to Springboro Business Park Development Standards" in which they agreed that the property conveyed would be subject to all terms and conditions set forth in the development standards. This document was subsequently recorded.

On May 26, 1988, the Howells conveyed the real estate to Robert and Mary Sellers, husband and wife, and Douglas and Barbara Sellers, husband and wife, "subject to all * * * conditions and restrictions of record."

On October 28, 1988, Bunnell Hill gave written notice to the Sellers of its intent to repurchase the real estate pursuant to paragraph V.B. of the development standards because they had failed to commence construction of a building on the real estate by October 28, 1988, two years from the original conveyance to the Howells. On January 6, 1989, the Sellers filed a complaint for declaratory judgment asking the trial court to declare that Bunnell Hill had no right to repurchase the property. Bunnell Hill filed a counterclaim seeking specific performance of the provisions contained in the development standards.

Both parties filed motions for summary judgment. The trial court granted Bunnel Hill's motion stating that the Sellers "are not entitled to declaratory judgment as prayed for, and that [Bunnell Hill] is entitled to a judgment of specific performance." This appeal followed.

Robert Sellers presents three assignments of error for review.®1¯ In his first assignment of error, he states that the trial court erred in finding that Bunnell Hill was entitled to exercise any rights against him. He argues that there is a question of fact as to whether Bunnell Hill was the "Declarant" described in the development standards. We find this assignment of error is not well-taken.

Valid restrictive covenants, "not in contravention of public policy, will be enforced in accordance with their express provisions. They are to be interpreted according to the ordinary meaning of the words used therein, and are to be construed in the same manner as other written instruments." Yeager v. Cassidy (1969), 20 Ohio Misc. 251, 254. See also, Berger v. Van Swerigan Co. (1966), 6 Ohio St.2d 100, 103. The intention of the parties governs and that is determined by the language contained in the instrument if when read as a whole it is unambiguous and selfexplanatory. Vale v. Stephens (1927), 25 Ohio App. 523, 526-527; Hi-Lo Oil Co. v. McCollum (1987), 38 Ohio App.3d 12, 13.

Paragraph V.B. of the development standards provides that " * * * Declarant shall have the right to repurchase the Building Site * * *." The term "declarant" is not expressly defined in the development standards. However, reading the document as a whole using the ordinary meaning of the words, we conclude that "declarant" refers to Bunnell Hill. The term "declarant" refers to the entity which declared the development standards. Webster's Third New International Dictionary defines "declare" as "to make known publicly, formally or explicitly * * * announce, proclaim or publish esp. by a formal statement or official pronouncement * * *."

The development standards were written and promulgated by Bunnell Hill and were executed by its president and secretary. A reading of the development standards as a whole indicates...