[Cite as Cumberland Trail Homeowners Assn., Inc. v. Bush, 2011-Ohio-6041.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CUMBERLAND TRAIL HOMEOWNERS                              JUDGES:
ASSOCIATION, INC.                                        Hon. William B. Hoffman, P. J.
                                                         Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                               Hon. John W. Wise, J.

-vs-                                                     Case No. 11 CA 40

PETER F. BUSH, et al.
                                                         OPINION
        Defendants-Appellants




CHARACTER OF PROCEEDING:                             Civil Appeal from the Municipal Court,
                                                     Case No. 10 CVF 01457


JUDGMENT:                                            Reversed



DATE OF JUDGMENT ENTRY:                              November 15, 2011



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellants

ELIZABETH J. WATTERS                                 STEVEN W. MERSHON
CHESTER, WILLCOX & SAXBE                             MERSHON AND PREDIERI
65 East State Street, Suite 1000                     128 South Main Street, Suite 100
Columbus, Ohio 43215                                 Granville, Ohio 43025
Licking County, Case No. 11 CA 40                                                         2

Wise, J.

      {¶1}   Defendants-Appellants Peter and Sharon Bush appeal the decision of the

Licking County Municipal Court, which granted a monetary judgment against them in

favor of Plaintiff-Appellee Cumberland Trail Homeowners Association, Inc. in an action

seeking recovery of association fees and collection costs. The relevant facts leading to

this appeal are as follows.

      {¶2}   In 2004, appellants became the owners of Lot #199 in the Cumberland

Trail Subdivision, Etna Township, with a present street address on Arrow Wood Court.

This property is subject to a 1998 declaration of covenants, conditions, and restrictions

which was recorded in Licking County in 1998. This declaration was enacted by

Columbia Road, Ltd., the developer of the Cumberland Trail Subdivision, who was

designated the "Declarant'' in the original declaration. The covenants, among other

things, limited the use of the lots and restricted the location and types of structures that

could be built. However, the restrictions therein did not provide for the existence of a

"homeowners association" and did not levy assessments against any lot owners.

      {¶3}   The original Declaration contains the following pertinent provision in Article

II:

      {¶4}   “(A) TERM: These covenants are to run with the Lots and shall be binding

on all Owners of the above-described real estate until January 1, 2037, after which

time said covenants shall be automatically extended for successive periods of ten (10)

years, unless an instrument signed by a majority of the Lot Owners is recorded,

agreeing to change said covenants in whole or in part.”
Licking County, Case No. 11 CA 40                                                        3


        {¶5}   In 2007, some of the owners of property in Cumberland Trail Subdivision,

relying on the aforesaid provision, sought to amend the original subdivision covenants

to create a homeowners association and to impose assessments on all homeowners in

the subdivision. For that purpose, an “Amendment to Declaration of Covenants,

Conditions and Restrictions for Cumberland Trail Subdivision Sections 1, 2, 3, 4, 4

(Part 2) and 5” was recorded on September 5, 2007, approximately three years after

appellants purchased their home. Appellants took the position that they were not a

party to the amendment and have not consented to the terms of the amendment.

        {¶6}   Appellee Association thereafter billed appellants for an initial reserve fee

and dues. Subsequently, the Association billed appellants for dues for 2008, 2009 (in

the amount of $95 each) and 2010 (in the amount of $105). These amounts were not

paid.

        {¶7}   Appellee Association accordingly filed an action to recover fees in the

Licking County Municipal Court. Appellants filed an answer and claimed that they did

not owe the assessments because the purported amendment was ineffective. They

also contended that the ownership of their home could not be subjected to additional

restrictions that are not reasonably related to the restrictions that applied when they

acquired the property. They further maintained that the restrictions could not be

amended to require mandatory membership in a homeowners association, or to

impose assessments, where there are no commonly owned assets to protect or

improve.

        {¶8}   The trial court conducted a hearing on November 4, 2010, at the close of

which the court asked for the submission of post-trial briefs and findings of fact. On
Licking County, Case No. 11 CA 40                                                      4


March 2, 2011, the trial court issued a judgment entry in which it held, inter alia, that

"the documents filed of record with respect to the Cumberland Trail Homeowners

Association gives that association legitimacy and also the power to assess property

owners for dues and to enforce those assessments.” Judgment Entry at 2. The trial

court further granted judgment to Appellee Association for unpaid dues in the amount

of $1,128.29, plus $376.10 for appellee’s attorney fees.

      {¶9}   On April 1, 2011, appellants filed a notice of appeal. They herein raise the

following sole Assignment of Error:

      {¶10} “I. THE TRIAL COURT ERRED IN ENTERING ITS JUDGMENT ENTRY

AGAINST THE DEFENDANT[S]-APPELLANTS BECAUSE THE TRIAL COURT

ERRED IN ITS INTERPRETATION OF THE PURPORTED AMENDMENT TO THE

SUBDIVISION’S RESTRICTIVE COVENANTS AND IN ITS APPLICATION OF THOSE

COVENANTS TO DEFENDANTS-APPELLANTS’ HOME.”

                                           I.

      {¶11} In their sole Assignment of Error, appellants argue the trial court erred in

holding them responsible for annual assessments to the homeowners association via

the 2007 amendments to the original restrictive covenants. We agree.

      {¶12} Restrictive covenants in deeds are generally interpreted by those rules

used to interpret contracts. McBride v. Behrman (1971), 28 Ohio Misc. 47, 272 N.E.2d

181, 57 O.O.2d 77 (additional citations omitted). In the case of contracts, deeds or

other written instruments, the construction of the writing is a matter of law which is

reviewed de novo. See Martin v. Lake Mohawk Property Owner's Ass'n., Carroll

App.No. 04 CA 815, 2005-Ohio-7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones
Licking County, Case No. 11 CA 40                                                         5


(1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208. Under a de novo review, an appellate

court may interpret the language of the contract substituting its interpretation for that of

the trial court. Witte v. Protek Ltd., Stark App.No. 2009CA00230, 2010-Ohio-1193, ¶ 6,

citing Children's Medical Center v. Ward (1993), 87 Ohio App.3d 504, 622 N.E.2d 692.

      {¶13} Ohio’s legal system “does not favor restrictions on the use of property.”

Driscoll v. Austintown Assoc. (1975), 42 Ohio St.3d 263, 276. “The general rule, with

respect to construing agreements restricting the use of real estate, is that such

agreements are strictly construed against limitations upon such use, and that all doubts

should be resolved against a possible construction thereof which would increase the

restriction upon the use of such real estate.” Bove v. Geibel (1959), 169 Ohio St. 325,

159 N.E.2d 425, paragraph one of the syllabus. Furthermore, “[i]f the covenant's

language is indefinite, doubtful, and capable of contradictory interpretations, the court

must construe the covenant in favor of the free use of land.” Farrell v. Deuble, 175

Ohio App.3d 646, 888 N.E.2d 514, 2008-Ohio-1124, ¶ 11, citing Houk v. Ross (1973),

34 Ohio St.2d 77, 63 O.O.2d 119, 296 N.E.2d 266, paragraph two of the syllabus.

      {¶14} Appellants argue that the original 1998 restrictive covenants, by their

express language, cannot be amended until the year 2037. They further argue, in the

alternative, that the 2007 amendment did not propose to simply amend the language of

the existing covenants -- i.e., "to change said covenants in whole or in part" - as set

forth in the original Declaration; instead, the Amendment purported to "add" new

obligations to the subdivision covenants.

      {¶15} The key language of Article II(A) of the original covenants states that they

“shall be binding on all Owners of the above-described real estate until January 1,
Licking County, Case No. 11 CA 40                                                       6


2037, after which time said covenants shall be automatically extended for successive

periods of ten (10) years, unless an instrument signed by a majority of the Lot Owners

is recorded, agreeing to change said covenants ***.”

      {¶16} The primary question before us is whether or not the above phrase

beginning with “unless” expresses an intention by the drafters that any changes to the

covenants are permitted only “after which time,” i.e., January 1, 2037. Appellant directs

us to the “last-antecedent rule” of contract interpretation, which states that referential

and qualifying words and phrases, where no contrary intention appears, refer solely to

the last antecedent. See Wohl v. Swinney, 118 Ohio St.3d 277, 279, 2008-Ohio-2334.

      {¶17} Upon review, we hold Article II(A), when strictly construed and subjected

to the last-antecedent rule, does not permit owner-initiated changes to the 1998

restrictive covenants pertaining to the Cumberland Subdivision prior to the January 1,

2037 limitation stated therein. Accordingly, the trial court erred as a matter of law in

applying the homeowners association restrictions and fees to appellants.
Licking County, Case No. 11 CA 40                                             7


      {¶18} Appellants’ sole Assignment of Error is sustained.

      {¶19} For the reasons stated in the foregoing opinion, the judgment of the

Municipal Court of Licking County, Ohio, is hereby reversed.


By: Wise, J.

Farmer, J. concurs.

Hoffman, P. J., concurs separately.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
JWW/d 1018
Licking County, Case No. 11 CA 40                                                      8

Hoffman, P.J., concurring

      (¶20) I do not disagree with the majority’s application of the “last-antecedent

rule” to the restrictive covenant in the case sub judice. However, I would go further and

find the attempted change constituted more than a mere amendment. It attempted to

add new obligations to the subdivision covenants.          I would find the purported

“amendment” unenforceable against Appellants also for this reason.




                                               ________________________________
                                               HON. WILLIAM B. HOFFMAN
Licking County, Case No. 11 CA 40                                             9


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




CUMBERLAND TRAIL HOMEOWNERS                 :
ASSOCIATION, INC.                           :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
PETER F. BUSH, et al.                       :
                                            :
       Defendants-Appellants                :         Case No. 11 CA 40




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Licking County, Ohio, is reversed.

       Costs assessed to appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
