DocketNumber: Appeal No. C-000150, Trial No. A-9905332.
Filed Date: 10/25/2000
Status: Non-Precedential
Modified Date: 4/18/2021
Appellants were the owners of two of six lots in the Morton's Meadow subdivision. In their complaint, they claimed that the developer exceeded its authority when it made an amendment to the subdivision's declaration of covenants and restrictions. They further claimed that the developer's president and various agents had represented to them both orally and in writing that the developer would do nothing to alter the residential character of the subdivision.
The amendment to the declaration permitted the construction and operation of a church in the subdivision, which, appellants claimed, was contrary to the express representations of the developer's president. Claiming that the operation of a church would violate the residential character of the subdivision, appellants sought a declaratory judgment to set aside the amendment, along with other relief.
The trial court rejected appellants' claims that the developer could not amend the declaration, and that they could bring an action based upon oral representations made before the declaration was executed. Basing its decision on the statute of frauds and on the doctrine of merger, the trial court held that the clear and unambiguous language of the original declaration permitted the amendment and entered summary judgment on behalf of appellees.
A court may grant summary judgment only when the moving party demonstrates that the record is devoid of genuine issues of material fact and that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. See Civ.R. 56(B); see, e.g., Mitseff v.Wheeler (1988),
The McCarthys' sole assignment of error challenges the trial court's ruling that the statute of frauds was controlling. The McCarthys claim that the statute did not apply because their action was one in fraud seeking damages and injunctive relief, and was not one to compel an interest in real property. We disagree.
This court has previously held that the statute of frauds controlled where a landowner claimed to have relied upon a developer's verbal representation that a green space would remain undeveloped, concluding that the dispute involved a "pure real estate transaction." See Rose v.Zaring Homes, Inc. (1997),
The McCarthys next claim that the promises made to them should be enforced under the doctrine of promissory estoppel. The doctrine of promissory estoppel is an exception that may be used to preclude a statute-of-frauds defense, but Ohio courts presently limit its use in real estate disputes to those cases involving either a misrepresentation that the statute's requirements have been met or a promise to make a memorandum of an agreement. See McCarthy, Lebit, Crystal Haiman Co.,L.P.A. v. First Union Mgt., Inc. (1993),
The McCarthys' remaining challenges against a statute-of-frauds defense need not be addressed, as these arguments were not advanced below and have, accordingly, been waived for appeal. See Drage v. Procter Gamble
(1997),
Section 6.2, paragraph one, of the declaration reads, "Before the end of the Development Period, and except as otherwise provided in this Declaration, any provision of this Declaration may be amended or terminated in whole or in part by a recorded instrument executed by Developer and approved by Developer and the Owners of at least 66-2/3% of all Lots * * *." Section 3.1.1 reads, "Except as otherwise provided in this Declaration, no Lot shall be used for other than residential uses * * *." As the trial court correctly noted, the declaration permits, under Section 6.2, paragraph one, any provision of the declaration to be amended or terminated in whole or in part when the required percentage of lot owners is met. This power to amend any provision is unfettered. Therefore, we hold that the trial court properly ruled that the clear and unambiguous language of the declaration allowed the developer to amend the declaration as it did.
The McCarthys' single assignment of error is overruled.
It is well settled that when a deed is delivered and accepted without qualification pursuant to a real-estate purchase contract, the contract is merged into the deed, and no cause of action upon the prior agreement exists. See Fuller v. Drenberg (1965),
Therefore, the judgment of the trial court is affirmed.
Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
Gorman, P.J., Painter and Winkler, JJ.