Wingate Farms Owners Assn. v. Sankarappa ( 2011 )

[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
WINGATE FARMS OWNERS : Sheila G. Farmer, P.J.
ASSOCIATION : John W. Wise, J.
: Julie A. Edwards, J.
Plaintiff-Appellee / Cross-Appellant :
: Case No. 11-CAE-05-0041
-vs- :
:
: OPINION
SANKARSETTI K. SANKARAPPA, et
al.,
Defendants-Appellants /
Cross-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from Delaware County
Court of Common Pleas Case No.
08-CV-1371
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 30, 2011
APPEARANCES:
For Plaintiff-Appellee / For Defendants-Appellants /
Cross-Appellant Cross-Appellees
PAUL GIORGIANNI STEPHEN D. MARTIN
Giorgianni Law LLC DENNIS L. PERGRAM
1538 Arlington Avenue Manos, Martin, Pergram &
Columbus, Ohio 43212-2710 Dietz Co., LPA
50 North Sandusky Street
HENRY W. ECKHART Delaware, Ohio 43015-1926
1200 Chambers Road, #106
Columbus, Ohio 43212
[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]
Edwards, J.
{¶1} Appellants/Cross-appellees, Sankarsetti and Manjula Sankarappa, appeal
a judgment of the Delaware County Common Pleas Court entering declaratory
judgment in their favor but failing to award attorney fees against appellee/cross-
appellant Wingate Farms.
STATEMENT OF FACTS AND CASE
{¶2} Appellee is a homeowners association of which appellants are members.
Appellants have a barn on their property which had needed extensive repairs.
{¶3} Appellee filed a complaint against appellants alleging that the barn was
not in compliance with deed restrictions and seeking an injunction ordering appellants to
remove the barn and an injunction ordering appellants to stop the replacement or repair
of the barn. This complaint also sought $25,000.00 in damages, a lien on the property
and attorney fees.
{¶4} Appellee next filed a first amended complaint, raising the same causes of
action but noting that appellants proceeded to work on the roof of the barn despite their
failure to obtain appellee’s approval of the plan. Appellee did not however seek a
temporary injunction to prevent further work on the barn.
{¶5} Appellants then filed a counterclaim seeking a declaration that deed
restrictions 8.01, 8.03, 8.04, 8.05, 8.07, 8.11 and 8.15 do not apply to their property, a
declaration that restrictions 8.03 through 8.06 do not apply to repair of existing
buildings, and a declaration that restriction 8.04 is invalid and unenforceable as against
public policy. Appellants also requested attorney fees.
Delaware County App. Case No. 11-CAE-05-0041 3
{¶6} Appellee filed a second amended complaint which raised the same
causes of action raised earlier except that count three, asking for a lien on the property,
was removed.
{¶7} Finally, on May 12, 2009, appellee filed its final complaint, a third
amended complaint, alleging that both the barn and residence are in violation of the
deed restrictions. The complaint sought an injunction requiring appellants to remove
the barn or bring it into compliance with deed restrictions, an injunction requiring
appellants to bring the residence into compliance, and a finding that appellants have
breached the deed restrictions and appellee is therefore entitled to attorney fees.
{¶8} Appellants filed an answer and counterclaim on May 26, 2009. The
counterclaim raised the same claims raised in the earlier counterclaim.
{¶9} Appellants moved for partial summary judgment on the complaint and on
count three of their counterclaim. They also moved for summary judgment on the claim
for injunctive relief, arguing it was moot because the barn had been brought into
compliance.
{¶10} Appellee responded by withdrawing their prayer for injunctive relief on
counts one and two of their complaint regarding noncompliance of the house and barn.
However, appellee did not withdraw the substantive allegations supporting counts one
and two, regarding violation of the deed restrictions, because they intended to show that
appellants violated the deed restrictions in support of the claim for attorney fees.
{¶11} On April 6, 2011, the trial court granted appellant’s motion for summary
judgment and entered declaratory judgment finding article 8.04 of the deed restrictions
to be invalid and unenforceable as against public policy. The court dismissed counts
Delaware County App. Case No. 11-CAE-05-0041 4
one and two of appellants’ counterclaim and dismissed appellee’s entire complaint. The
court held that each party should pay their own attorney fees. Appellants assign one
error on appeal:
{¶12} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
ENTERING A JUDGMENT RULING THAT EACH PARTY SHALL PAY THEIR OWN
ATTORNEY FEES, NOTWITHSTANDING THAT THE SUBJECT DEED
RESTRICTIONS BEFORE THE TRIAL COURT PROVIDED THAT THE
UNSUCCESSFUL PARTY OR PARTIES SHALL PAY THE ATTORNEY FEES OF THE
PREVAILING PARTY OR PARTIES.”
{¶13} Appellee assigns three errors on cross-appeal:
{¶14} “I. THE TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT
DECLARING DEED RESTRICTION 8.04 UNENFORCEABLE.
{¶15} “II. THE TRIAL COURT ERRED BY OVERRULING CROSS-
APPELLANT’S MOTION TO VACATE THE SUMMARY JUDGMENT DECLARING
DEED RESTRICTION 8.04 UNENFORCEABLE.
{¶16} “III. THE TRIAL COURT ERRED TO THE EXTENT IT ENTERED
SUMMARY JUDGMENT DECLARING OTHER DEED RESTRICTIONS
UNENFORCEABLE.”
I
{¶17} Appellants argue that the court erred in overruling their motion for attorney
fees. They argue that they were entitled to fees under article 9.03 of the deed
restrictions which provides:
Delaware County App. Case No. 11-CAE-05-0041 5
{¶18} “In any legal or equitable proceedings for the enforcement of the
provisions of these Restrictions, the unsuccessful party or parties shall pay the
attorneys’ fees of the prevailing party or parties, in such amount as may be affixed by
the Court in such proceedings. All remedies provided herein or at law or in equity shall
be cumulative and not exclusive.”
{¶19} R.C. 2721.16(A) bars attorney fees in declaratory judgment actions except
in specific instances, none of which are applicable to this case:
{¶20} “(A)(1) A court of record shall not award attorney’s fees to any party on a
claim or proceeding for declaratory relief under this chapter unless any of the following
applies:
{¶21} “(a) A section of the Revised Code explicitly authorizes a court of record to
award attorney’s fees on a claim for declaratory relief under this chapter.
{¶22} “(b) An award of attorney’s fees is authorized by section 2323.51 of the
Revised Code, by the Civil Rules, or by an award of punitive or exemplary damages
against the party ordered to pay attorney’s fees.
{¶23} “(c) Regardless of whether a claim for declaratory relief is granted under
this chapter, a court of record awards attorney’s fees to a fiduciary, beneficiary, or other
interested party, the attorney’s fees are to be paid out of trust property, estate property,
or other property that is the subject of a fiduciary relationship and that is involved in that
claim or proceeding for declaratory relief, and the attorney’s fees are awarded in
accordance with equitable principles that permit recovery of attorney’s fees incurred for
services that are beneficial to the trust or estate.”
Delaware County App. Case No. 11-CAE-05-0041 6
{¶24} This Court has previously held that this statute bars an award of attorney
fees in a declaratory judgment action even when a contract provision provides for an
award of fees to the prevailing party. Stark Commons, Ltd. v. Landry’s Seafood House,
Stark App. No. 2008CA00206, 2009-Ohio-3847.
{¶25} However, appellants argue that they were the prevailing party on parts of
the action that did not involve declaratory judgment. The trial court only disposed of
appellants’ claim for declaratory judgment, count three of the counterclaim, on the
merits. All other claims and counterclaims were resolved on the basis of the trial court’s
declaratory judgment. We therefore find that this proceeding was a proceeding for
declaratory relief within the meaning of R.C. 2721.16(A) and the court did not err in
failing to award attorney fees.
{¶26} The assignment of error is overruled.
{¶27} We next address the assignments of error on cross-appeal.
I, II
{¶28} We address cross-appellant’s first two assignments of error together, as
the parties did in their brief. Both assignments address the propriety of the court’s
summary judgment declaring article 8.04 to be void as against public policy.
{¶29} Article 8.04 provides:
{¶30} “Approval shall be based, among other things, upon the effect of the
location and use of improvements on neighboring property; and conformity of the plans
and specifications to the purpose and general intent of these restrictions.”
Delaware County App. Case No. 11-CAE-05-0041 7
{¶31} The trial court found that the language of this restriction provided no
standards by which a reviewing committee is to approve or disapprove the proposed
improvements and provided no standards to be applied.
{¶32} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must
refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from the evidence or stipulation, and only from the
evidence or stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.”
{¶33} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
Delaware County App. Case No. 11-CAE-05-0041 8
point to some evidence which demonstrates that the moving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the non-moving
party to set forth specific facts demonstrating that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶34} Cross-appellant first argues that the court erred in ruling on the
declaratory judgment claim because the case was moot. Notwithstanding their failure to
dismiss their complaint or to file a fourth amended complaint withdrawing certain claims,
they argue that they had agreed to not pursue their claims against cross-appellees and
had withdrawn their claims because the barn had been brought into compliance with the
deed restrictions during the pendency of the lawsuit. Cross-appellant argues that
because there was no case or controversy between the parties, the court’s opinion is
merely advisory.
{¶35} This Court has previously held that in order to obtain declaratory relief, the
proceeding must be based on an actual controversy, and declaratory judgment does not
lie to obtain an advisory opinion or answer an abstract question in a hypothetical
situation. Mansfield Plumbing Products LLC v. Estate of Sparks, Richland App. No.
2004-CA-0094, 2005-Ohio-3121, ¶10.
{¶36} In the instant case, cross-appellant stated in its response to cross-
appellees’ motion for partial summary judgment that cross-appellant intended to
withdraw its claims for relief on the first two counts of the complaint relating to their
request for an injunction ordering the barn and residence to be brought into compliance
or torn down. However, cross-appellant continued to seek a ruling from the court that
Delaware County App. Case No. 11-CAE-05-0041 9
cross-appellees had violated the deed restrictions, in order to be entitled to attorney
fees as the prevailing party in the action. Therefore, a case or controversy still existed
between the parties related to cross-appellees’ compliance with the deed restrictions
and the enforceability of the deed restriction at issue was therefore, an issue between
the parties. The trial court’s decision was not advisory.
{¶37} Cross-appellant also argues that the trial court erred on the merits in
finding the deed restriction unenforceable as vague and overbroad.
{¶38} The trial court relied on this Court’s opinion in D&N Development, Inc. v.
Schrock (March 29, 1990), Tuscarawas App. No. 89AP080066. In that case, the deed
covenant in question provided:
{¶39} “2. No building shall be erected, placed, or altered on any lot until the
construction plans and specifications and a plan showing the location of the structure
have been approved by the architectural control committee as to quality of workmanship
and materials, harmony of external design with existing structures, and as to location
with respect to topography and finish grade elevation. Approval shall be obtained as
provided in 2(b) herein.
{¶40} “(a) The architectural control committee is composed of Dale R.
Waldemyer, 838 Boulevard, Dover, Ohio, Norma D. Waldemyer, 838 Boulevard, Dover,
Ohio and the Service Director, City Building, Dover, Ohio. A majority of the committee
may designate a representative to act for it. In the event of death or resignation of any
member of the committee, the remaining members shall have full authority to designate
a successor. Neither the members of the committee, nor its designated representative
shall be entitled to any compensation for services performed pursuant to this covenant.
Delaware County App. Case No. 11-CAE-05-0041 10
At any time, the then record owners of a majority of the lots shall have the power
through a duly recorded written instrument to change the membership of the committee
or to withdraw from the committee or restore to it any of its powers and duties.
{¶41} “(b) The committee's approval or disapproval as required in these
covenants shall be in writing. In the event the committee, or its designated
representatives, fails to approve or disapprove within 30 days after plans and
specifications have been submitted to it, or in any event, if no suit to enjoin the
construction has been commenced prior to the completion thereof, approval will not be
required and the related covenants shall be deemed to have been fully complied with.”
{¶42} We found that a restriction that does not give notice to the parties
regarding the standards to which they must conform is void as contrary to public policy
because such a restriction is too broad in scope, leaving too much control over the
property vested in the hands of someone other than the owner of the property. Id. We
accordingly found the above-cited deed covenant to be overly broad and vague, and
therefore contrary to public policy and unenforceable. Id.{¶43} The deed restriction in question is similarly vague, giving no real
standards to which the homeowner must conform other than “the effect of the location
and use of improvements on neighboring property; and conformity of the plans and
specifications to the purpose and general intent of these restrictions.” The restriction
further provides that “other things” may be considered without delineating what such
other things might be. Cross-appellant attempts to distinguish this case from D&N on
the basis that cross-appellees had actual notice of what standards they were not
complying with regarding the barn. However, cross-appellant presented no material of
Delaware County App. Case No. 11-CAE-05-0041 11
evidentiary quality to the trial court regarding such notice and can therefore not now
argue that the trial court erred in failing to find that cross-appellees had actual notice of
the standards the association was attempting to apply.
{¶44} The first and second assignments of error are overruled.
III
{¶45} Cross-appellant argues that the trial court erred in finding deed restrictions
8.01, 8.02, 8.03, 8.05 and 8.06 unenforceable.
{¶46} The trial court made the following statement in its April 6, 2011 judgment
entry:
{¶47} “The Court did not dismiss Plaintiff’s Counts 1, 2 and 3 based upon
mootness. The Court found that provision 8.04 was invalid and unenforceable and
against public policy. Therefore, Defendants were granted declaratory judgment as to
that provision, which was Count 3 of Sankarappas’ Counterclaim. Accordingly, deed
provisions 8.01, 8.02, 8.03, 8.05 and 8.06, which relate to the plan approval process as
addressed in 8.04, were unenforceable. Based upon this finding, the Court concluded
that injunctive and mandatory relief could not be granted, thus granting summary
judgment in favor of Defendants as to the Counts 1 and 2 of Plaintiff’s Third Amended
Complaint. The Court further granted Defendants summary judgment as to Count 3,
since Plaintiff should not be entitled to attorney fees in its efforts to enforce invalid or
unenforceable deed restrictions.”
{¶48} The court then went on to dismiss all counts of the complaint and counts
one and two of the counterclaim based on its declaration that 8.04 is void and
unenforceable. While the court perhaps should not have used the word “unenforceable”
Delaware County App. Case No. 11-CAE-05-0041 12
relating to deed provisions 8.01, 8.02, 8.03, 8.05 and 8.06, we do not interpret the
court’s entry to find those provisions unenforceable at all times and in all circumstances.
Rather, the court is explaining its conclusion that if article 8.04 is void, cross-appellant
cannot prevail on its claims that cross-appellees did not comply with the plan approval
process set forth in other sections of the deed restrictions. Cross-appellees specifically
sought a declaration that articles 8.04, 8.03, 8.05, 8.06, 8.07, 8.11 and 8.15 were
unforceable in counts one and two of the counterclaim and the trial court dismissed both
of these counts of the counterclaim. Contra to cross-appellant’s argument, the court did
not declare any provision of the deed restrictions to be void and unenforceable except
for article 8.04.
{¶49} The third assignment of error is overruled.
Delaware County App. Case No. 11-CAE-05-0041 13
{¶50} The judgment of the Delaware County Common Pleas Court is affirmed.
Costs of the appeal are to be paid by appellants/cross-appellees. Costs of the cross-
appeal are to be paid by appellee/cross-appellant.
By: Edwards, J.
Wise, J. concur and
Farmer, P.J. concurs separately
______________________________
______________________________
______________________________
JUDGES
JAE/r0831
Delaware County App. Case No. 11-CAE-05-0041 14
Farmer, J., concurs separately
{¶51} Although I concur with the majority's disposition of appellants' assignment
of error, I would not find that deed restriction 8.04 is against public policy or void and
unenforceable.
________________________________
HON. SHEILA G. FARMER
[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WINGATE FARMS OWNERS :
ASSOCIATION :
:
Plaintiff-Appellee / Cross-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
SANKARSETTI K. SANKARAPPA, et al., :
:
Defendants-Appellants / Cross- :
Appellees : CASE NO. 11-CAE-05-0041
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
on the appeal are to be paid by appellants/cross-appellees. Costs assessed on the
cross-appeal are to be paid by appellee/cross-appellant.
_________________________________
_________________________________
_________________________________
JUDGES