[Cite as Heather Lake Assn. v. Billiter, 2017-Ohio-8387.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 HEATHER LAKE ASSOCIATION                               :   JUDGES:
                                                        :
                                                        :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                              :   Hon. John W. Wise, J.
                                                        :   Hon. Earle E. Wise, Jr., J.
 -vs-                                                   :
                                                        :   Case No. 17-CA-31
                                                        :
 DAVID BILLITER, ET AL.                                 :
                                                        :
                                                        :
        Defendants-Appellants                           :   OPINION


CHARACTER OF PROCEEDING:                                    Appeal from the Fairfield County Court
                                                            of Common Pleas, Case No.
                                                            2015CV00803



JUDGMENT:                                                   AFFIRMED




DATE OF JUDGMENT ENTRY:                                     October 30, 2017




APPEARANCES:

 For Plaintiff-Appellee:                                    For Defendants-Appellants:

 ROBERT E. KMIECIK                                          DAVE LACKEY
 GARRETT B. HUMES                                           SCHERNER, SYBERT & RHOAD LLC
 KAMAN & CUSIMANO LLC                                       153 S. Liberty St.
 8101 N. High St., Suite 370                                Powell, OH 43065
 Columbus, OH 43235
Fairfield County, Case No. 17-CA-31                                                       2

Delaney, P.J.

         {¶1} Defendants-appellants David Billiter et al. appeal from the Entry dated June

2, 2017 and Consent Judgment Entry dated June 28, 2017 of the Fairfield County Court

of Common Pleas. Plaintiff-appellee is the Heather Lake Association.

         {¶2} This case comes to us on the accelerated calendar. App.R. 11.1 governs

accelerated-calendar cases and states in pertinent part:

                       (E) Determination and judgment on appeal.

                       The appeal will be determined as provided by App.R. 11.1. It

                shall be sufficient compliance with App.R. 12(A) for the statement of

                the reason for the court’s decision as to each error to be in brief and

                conclusionary form.

                       The decision may be by judgment entry in which case it will

                not be published in any form.

         {¶3} One of the most important purposes of the accelerated calendar is to enable

an appellate court to render a brief and conclusory decision more quickly than in a case

on the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

         {¶4} This appeal shall be considered in accordance with the aforementioned

rules.

                          FACTS AND PROCEDURAL HISTORY

         {¶5} Appellee is a nonprofit corporation organized and existing under the laws of

the state of Ohio to provide a corporate entity for the operation of 69 lots and homes
Fairfield County, Case No. 17-CA-31                                                        3


located at the Heather Lake community in Lancaster, Fairfield County. The “Heather Glen

Subdivision Declaration of Covenants, Easements, Restrictions, and Assessment Lien”

[“Declaration”] was filed on August 30, 1996, and applied to Lots 1 through 22. Two

months later, an amendment was recorded which changed the name from “Heather Glen

Homeowners’ Association” to “Heather Lake Association.”

       {¶6} On September 25, 1997, a second amendment to the Declaration was

recorded which added Lots 23 through 58 to the property subject to the Declaration.

       {¶7} On June 27, 2001, appellants took title to Lot 37 located at 1967 Glenhurst

Drive, Lancaster, Ohio. At that time, Article I, Section 2(e) of the Declaration stated:

                     Vehicle. The Board may promulgate regulations restricting

              the parking of automobiles, inoperable vehicles, trucks, boats, and

              recreational vehicles on the Lots and Common Areas and, to the

              extent not prohibited by law, the streets within the subdivision, and

              may enforce such regulations or restrictions by levying fines or

              enforcement charges, having such vehicles towed away, or taking

              other such actions as it, in its sole discretion, deems appropriate.

       {¶8} Appellee asserted in the trial court that pursuant to the Declaration, the

Association adopted a Design Review Manual for Single Family Residential Development

on May 12, 2001 (“Design Review Manual”), regulating parking of “Vehicles, Trailers,

Boats, Commercial Vehicles and Motor Homes.” The Design Review Manual states in

pertinent part:

                     No commercial vehicle may be parked, stored, or temporarily

              kept on any Lot or Reserve, except when there temporarily to service
Fairfield County, Case No. 17-CA-31                                                      4


              existing improvements or to be used in connection with the

              construction of improvements in Heather Lake.                 * * * *.

              Notwithstanding the foregoing, the Board of Trustees shall have the

              right, in its sole discretion, to determine whether or not a particular

              vehicle type, or any particular vehicle is authorized. * * * *.

       {¶9} The Design Review Manual was not recorded.

       {¶10} The Bylaws of Heather Lake Association (“Bylaws”) were first recorded on

March 30, 2015. The recorded Bylaws are silent on any parking restrictions.

       {¶11} From October 2013 through January 2014 appellee sent letters to

appellants complaining about parking of vehicles at appellants’ residence. Appellants

admit their vehicle is a commercial vehicle which is parked on their lot outside the garage

multiple days each week.

       {¶12} Appellee filed suit on December 23, 2015 seeking injunctive relief against

appellants for alleged violations of the Association’s parking restrictions. Appellee also

sought reasonable costs and attorney fees. Appellants answered on January 27, 2016

and filed an amended answer on February 1, 2016.

       {¶13} The parties filed cross-motions for summary judgment. Pursuant to an

Entry filed June 2, 2017, the trial court granted appellee’s motion for summary judgment

and denied appellants’ motion for summary judgment. On June 28, 2017, the trial court

entered a consent judgment entry awarding reasonable attorney fees and costs against

appellants.

       {¶14} Appellants now appeal from the trial court’s judgment entries of June 2 and

June 28, 2017.
Fairfield County, Case No. 17-CA-31                                                        5


       {¶15} Appellants raise one assignment of error:

                                  ASSIGNMENT OF ERROR

       {¶16} “THE DEFENDANTS/APPELLANTS, DAVID AND KIMBERLEE BILLITER

(“BILLITERS”), FOR THEIR ASSIGNMENTS OF ERROR, STATE THAT THE ENTRY

OF JUNE 2, 2017 (“ENTRY”) WHICH WAS MADE INTO A FINAL APPEALABLE ORDER

THROUGH THE CONSENT ENTRY OF JUNE 28, 2017 IS ERRONEOUS IN THE

FOLLOWING RESPECTS: A) THE TRIAL COURT ERRED IN GRANTING HEATHER

LAKE ASSOCIATION’S (“ASSOCIATION”) MOTION FOR SUMMARY JUDGMENT. B)

THE TRIAL COURT ERRED IN DENYING THE BILLITERS’ MOTION FOR SUMMARY

JUDGMENT.” (Parentheses in original.)

                                             ANALYSIS

       {¶17} Appellants argue the trial court erred in granting appellee’s motion for

summary judgment and in denying their motion for summary judgment. We disagree.

       {¶18} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which

provides in pertinent part:

                     * * * *. Summary judgment shall be rendered forthwith if the

              pleading,       depositions,    answers   to   interrogatories,   written

              admissions, affidavits, transcripts of evidence in the pending case

              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. * * * *. A

              summary judgment shall not be rendered unless it appears from such

              evidence or stipulation and only from the evidence or stipulation, that
Fairfield County, Case No. 17-CA-31                                                      6


             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, such party being entitled to have the

             evidence or stipulation construed most strongly in the party's favor. *

             * * *.

       {¶19} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of

the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. McPherson v.

Total Car Express, Inc., 5th Dist. Stark No. 2015CA00081, 2015-Ohio-5251, 54 N.E.3d

713, ¶ 16, citing Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶20} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher, supra, 75 Ohio St.3d 280, 662 N.E.2d 264.

       {¶21} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Cabot 570 Polaris Parkway, L.L.C. v. Carlile, Patchen &

Murphy L.L.P., 5th Dist. Delaware No. 15 CAE 02 0012, 2015-Ohio-5110, 2015 WL

8483935, ¶ 13, citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d

212 (1987). We review cases involving a grant of summary judgment using a de novo
Fairfield County, Case No. 17-CA-31                                                             7

standard of review. Esber Beverage Co. v. Labatt USA Operating Co., 138 Ohio St.3d 71,

2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9, citing Bonacorsi v. Wheeling & Lake Erie Ry. Co.,

95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24.

       {¶22} Appellants argue the parking restriction contained in the Design Review

Manual is unenforceable against them. Restrictive covenants in deeds are generally

interpreted by those rules used to interpret contracts. McBride v. Behrman, 28 Ohio Misc.

47, 50, 272 N.E.2d 181 (1971). 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., 5th Dist. No. 04 CA 815, 2005–

Ohio–7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697

N.E.2d 208 (1998). 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.,

5th Dist. No.2009CA00230, 2010–Ohio–1193, ¶ 6, citing Children's Medical Center v.

Ward, 87 Ohio App.3d 504, 622 N.E.2d 692 (1993).

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

Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 276, 328 N.E.2d 395 (1975). “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, 169 Ohio St.3d

125, 159 N.E.2d 425 (1959), 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,
Fairfield County, Case No. 17-CA-31                                                     8

175 Ohio App.3d 646, 2008–Ohio–1124, 888 N.E.2d 514, ¶ 11, citing Houk v. Ross, 34

Ohio St.2d 77, 296 N.E.2d 266 (1973), paragraph two of the syllabus.

      {¶24} There are five requirements for the creation of an enforceable restriction on

the use of land by covenant. Lipchak v. Chevington Woods Civic Assn., Inc., 5th Dist.

Fairfield No. 14–CA–40, 2015-Ohio-263, ¶ 33. These requirements are as follows:

                    First, the restrictions must be a part of the general subdivision

             plan, applicable to all lots in the subdivision. Second, lot purchasers

             must be given adequate notice of the restriction. Third, the

             restrictions must be in accord with public policy, and they are

             unenforceable to the extent that they are not. Fourth, the restriction

             cannot be implied, but must be express. Fifth, the restrictions must

             run with the land, and therefore must be inserted in the form of

             covenants in the owner's chain of title. Otherwise, subsequent

             purchasers are not bound.

                    Lipchak v. Chevington Woods Civic Assn., Inc., 5th Dist.

             Fairfield No. 14–CA–40, 2015-Ohio-263, ¶ 33, citing Dillingham v.

             Do, 12th Dist. Butler Nos. CA2002–01–004, CA 2002–01–017,

             2002–Ohio–3349, ¶ 12.

      {¶25} Appellant argues the parking restriction is not an enforceable restrictive

covenant because it arises from an “enabling provision” and the unrecorded Design

Review Manual; appellants had no knowledge of any such restriction; and the parking

restriction is too vague and ambiguous to be enforced.
Fairfield County, Case No. 17-CA-31                                                         9


       {¶26} The Declaration itself creates a general scheme or plan, explicitly stating,

“The Declarant desires to create a plan of restrictions, easements, and covenants with

respect to the Lots described herein, and establish liens upon the Lots described herein,

which shall be binding upon and inure to the benefit of the Declarant, the Association,

and all future owners and occupants of the Lots.” Appellant’s argument, though, is that

the “enabling provision” giving rise to the parking restriction is not part of the enforceable

restrictive covenant. We note Declaration Article I, Section 2(e), supra, unambiguously

grants the Association’s Board of Directors the authority to “* * * promulgate regulations

restricting the parking of automobiles, inoperable vehicles, trucks, boats, and recreational

vehicles on the Lots and Common Areas * * * .”

       {¶27} We fail to perceive the ambiguity suggested by appellants. Ordinary rules

of contract construction are used to construe a restrictive covenant. LuMac Dev. Corp. v.

Buck Point Ltd. Partnership, 61 Ohio App.3d 558, 563, 573 N.E.2d 681 (6th Dist.1988).

Thus, covenants should be construed consistent with the parties' intent. The first place

courts look to determine this intent is the language of the covenant itself. Woodcreek

Assn., Inc. v. Bingle, 73 Ohio App.3d 506, 509, 597 N.E.2d 1153 (12th Dist.1991). This

language should be given its common, ordinary meaning in light of the circumstances

surrounding the creation of the covenant. Id., Benner v. Hammond, 109 Ohio App.3d 822,

827, 673 N.E.2d 205 (4th Dist.1996).

       {¶28} Appellants live in a deed-restricted community. At the time they purchased

their lot, they were on notice that the Declaration gave the Board authority to promulgate

parking restrictions. Nevertheless, appellants admittedly parked a commercial vehicle at

the residence in violation of the restriction. The language of the restriction here is not
Fairfield County, Case No. 17-CA-31                                                     10


“indefinite, doubtful, and capable of contradictory interpretations,” despite appellants’

attempt to imply ambiguity where none exists.

       {¶29} We do not find Declaration Article I, Section 2(e) to be ambiguous; it is

evident from the language of the Declaration that the Board had authority to promulgate

parking restrictions. See, Morgan Woods Homeowners' Assn. v. Wills, 5th Dist. Licking

No. 11 CA 57, 2012-Ohio-233, ¶ 43 [it was evident from terms of covenant that design

standards would be established “from time to time”]. Appellant argues that the authority

to create parking regulations is so open-ended that it is unenforceable, citing Carranor

Woods Property Owners' Ass'n v. Driscoll, 106 Ohio App. 95, 101, 153 N.E.2d 681, 686

(6th Dist.1957) [“restriction * * * standing alone and devoid of any general plan or scheme

is unlimited in its scope and would leave a purchaser of a lot subject to the whim of the

developer * * *”]. We find this example to be inapposite to the ability of a homeowners’

association to reserve the right to promulgate parking regulations.

       {¶30} Appellee (and the trial court) analogized the instant case to that of Acacia

on the Green Condominium Assoc., Inc. v. Gottlieb, 8th Dist. Cuyahoga No. 92145, 2009-

Ohio-4878, in which the owner of a condominium unit ignored a rule requiring unit owners

to obtain a permit prior to commencing renovations in their unit. Id., ¶ 4. While Gottlieb

does not involve a homeowners’ association, the case in analogous in that the

condominium association had a declaration and bylaws applicable to all condominium

owners which allowed the association to promulgate additional rules and regulations. In

that case, Gottlieb argued that even if the association had the power to promulgate the

rules, those rules did not apply to him because he was not on notice of them. The Court

found, however, that Gottlieb had constructive notice of the rules when he purchased the
Fairfield County, Case No. 17-CA-31                                                        11


property because when an association records its declaration, it becomes public record

and a purchaser is deemed to have constructive notice of its contents. Id. at ¶ 36, citing

High Point Assn. v. Salvekar, 8th Dist. Cuyahoga No. 65725, unreported, 1994 WL

326070 (July 7, 1994). The bylaws contained a specific provision allowing the association

to create additional rules and regulations. Id. Gottlieb was on notice that such rules may

have existed and had a duty to inquire into their contents. Id.

       {¶31} In the instant case, when appellants purchased their lot, they were on notice

that the Declaration gave the Board authority to promulgate parking restrictions. The

recorded Declaration, in appellants’ chain of title, gave the Board the authority to

promulgate such restrictions; appellants were on notice of this authority; and appellants

had a duty to inquire into the contents of the parking regulations. Rather than doing so,

they admittedly parked a commercial vehicle on the lot despite “numerous” written

demands for compliance.       We disagree that appellants did not have notice of the

restriction.

       {¶32} The Supreme Court of Ohio has consistently held that “[w]here the

language contained in a deed restriction is indefinite, doubtful and capable of

contradictory interpretation, that construction must be adopted which least restricts the

free use of the land.” Morgan Woods Homeowners' Assn. v. Wills, 5th Dist. Licking No.

11 CA 57, 2012-Ohio-233, ¶ 42, citing Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266

(1973), paragraph two of the syllabus, overruled on other grounds by Marshall v. Aaron,

15 Ohio St.3d 48, 472 N.E.2d 335 (1984). “Where the language in the restriction is clear,

the court must enforce the restriction. Otherwise, the court would be rewriting the

restriction. * * * The key issue is to determine the intent of the parties as reflected by the
Fairfield County, Case No. 17-CA-31                                                       12

language used in the restriction.” Id., citing Dean v. Nugent Canal Yacht Club, Inc., 66

Ohio App.3d 471, 475, 585 N.E.2d 554 (6th Dist.1990). Where the lot owner has notice

of such a restriction and it is properly part of a general plan or scheme, the restriction is

enforceable. Id., citing Haller v. Hickory Creek Homeowners Assn., 1st Dist. No. C–

010332, 2001-Ohio-4032 (Dec. 14, 2001).

       {¶33} The parking restriction in this case arises from authority conferred by the

Declaration, and the restriction is valid and enforceable. Further, no factual dispute exists

that appellants are in violation of the restriction.

       {¶34} While not separately assigned as error, appellants further argue appellees

are not entitled to attorney fees pursuant to the terms of the Declaration, of which Article

XI, Section 2, “Enforcement,” states:

                      In addition to any other remedies provided in these Covenants

              * * * the Association * * * shall have the right to enforce, by any

              proceeding at law or in equity, all restrictions, covenants, easements,

              reservations, liens and charges set forth herein * * * *. Further the

              Association and each Lot owner shall have rights of action against

              each other for failure to comply with the provision of the Association

              Organizational Documents, rules and regulations, and applicable

              law, and with respect to decisions made pursuant to authority

              granted thereunder, and the Association shall have the right to

              assess reasonable charges against a Lot owner who fails to comply

              with the same, including the right to assess charges for the cost of

              enforcement and arbitration.
Fairfield County, Case No. 17-CA-31                                                         13


       {¶35} Ohio has long adhered to the “American rule” with respect to recovery of

attorney fees: a prevailing party in a civil action may not recover attorney fees as a part

of the costs of litigation in the absence of a statute or enforceable contract. Morgan

Woods, supra, 2012-Ohio-233 at ¶ 54, citing Fleischmann Distilling Corp. v. Maier

Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). In general, “the

costs and expenses of litigation * * * are not recoverable in actions for damages, and

ordinarily no attorney fees are allowed.” Id., citing Weisel v. Laskovski, 5th Dist. Stark No.

2004CA00175, 2005–Ohio–1113 and Wilborn v. Bank One Corp., 121 Ohio St.3d 546,

2009–Ohio–306, 906 N.E.2d 396.

       {¶36} Pursuant to Ohio law, contractual provisions awarding attorney fees are

enforceable and not void as against public policy so long as the fees awarded are fair,

just, and reasonable as determined by the trial court upon full consideration of all the

circumstances of the case. Morgan Woods, supra, 2012-Ohio-233 at ¶ 55, citing

Nottingdale Homeowners' Assn., Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987);

Gaul v. Olympia Fitness Ctr., 88 Ohio App.3d 310, 623 N.E .2d 1281 (1993).

       {¶37} Again, in the instant case, we fail to discern ambiguity in the terms of the

Declaration.   The attorney fees and costs assessed by the trial court arose from

enforcement of the parking restriction. As the attorney fees incurred by appellee in this

case were for the purpose of enforcing the restrictive covenants of the Association, we

find that the trial court did not err in finding that appellee was entitled to recover attorney

fees. Morgan Woods, supra, 2012-Ohio-233 at ¶ 62.

       {¶38} We find no genuine issue as to any material fact and that appellee is entitled

to judgment as a matter of law. Reasonable minds can come to but one conclusion and
Fairfield County, Case No. 17-CA-31                                                      14


that conclusion is adverse to appellants. The trial court did not err in granting appellee’s

motion for summary judgment and in overruling appellants’ motion for summary judgment.

       {¶39} The sole assignment of error is overruled.

                                      CONCLUSION

       {¶40} Appellant’s sole assignment of error is overruled and the judgment of the

Fairfield County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Wise, John, J. and

Wise, Earle, J., concur.
