[Cite as Stonebridge Neighborhood Assn., Inc. v. Knapinksi, 2018-Ohio-424.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      MIAMI COUNTY

 STONEBRIDGE NEIGHBORHOOD                             :
 ASSOCIATION, INC.                                    :
                                                      :    Appellate Case No. 2017-CA-9
         Plaintiff-Appellee                           :
                                                      :    Trial Court Case No. 2015-CV-544
 v.                                                   :
                                                      :    (Civil Appeal from
 GREGORY J. KNAPINSKI, et al.                         :    Common Pleas Court)
                                                      :
         Defendants-Appellants                        :


                                              ...........

                                              OPINION

                          Rendered on the 2nd day of February, 2018.

                                              ...........

JONATHAN S. ZWEIZIG, Atty. Reg. No. 0069381, 18 East Water Street, Troy, Ohio
45373
      Attorney for Plaintiff-Appellee

JEREMY M. TOMB, Atty. Reg. No. 0079664, PATRICK J. JANIS, Atty. Reg. No. 0012194,
124 West Main Street, Troy, Ohio 45373
     Attorneys for Defendants-Appellants

                                            .............




TUCKER, J.
                                                                                              -2-




       {¶ 1} Defendants-appellants, Amy L. Knapinski and Gregory J. Knapinski, appeal

from the trial court’s entry of March 8, 2017, in which the court issued its final judgment

resolving a lawsuit under R.C. 5312.13 in favor of Plaintiff-appellee, Stonebridge

Neighborhood Association, Inc. (“SNA”).            Presenting two assignments of error,

Appellants argue that the judgment should be vacated because the court misinterpreted

certain provisions of the planned community declaration to which their property is subject,

and because the court exceeded its authority by granting relief that the prevailing party,

SNA, did not request.        Although we concur with the trial court’s analysis of the

declaration, we find that its order granting relief to SNA should be modified. Therefore,

we affirm in part, reverse in part and remand for further proceedings.

                              I. Facts and Procedural History

       {¶ 2} SNA is a nonprofit corporation formed to manage the Stonebridge

Subdivision in Troy, a residential subdivision developed by Stonebridge Land

Development, Inc. According to § 1.6 of the Declaration of Subdivision Establishing

Covenants, Conditions, and Restrictions for the Project Known as Stonebridge

Subdivision (the “Declaration”), SNA’s “powers, rights, duties, and functions * * * shall be

exercised by a [b]oard of [t]rustees selected solely by the [d]eveloper” until either “all [l]ots

in the [s]ubdivision [have been sold] by the [d]eveloper,” or the developer “relinquish[es]

[its] right[]” to select the trustees, “whichever shall first occur.” Appellants own a home

in the subdivision; under § 1.2 of the Declaration, “[e]very owner of a [l]ot [in the

subdivision] shall be a member” of SNA.

       {¶ 3} Article IV, Section 1 of the Code of Regulations of Stonebridge Neighborhood
                                                                                          -3-


Association, Inc. (the “Regulations”) states that “until [SNA’s] first annual meeting,” the

Board of Trustees would consist of three persons identified in SNA’s articles of

incorporation, and that after the first annual meeting, the number of trustees would

increase to five. The Regulations also state that the “first annual meeting shall be held

within 180 days after the closing of the sale of all [l]ots in the [s]ubdivision” or “at such

time as the [d]eveloper voluntarily relinquishes its control [over SNA] [at] a special

meeting of [m]embers.” Regulations § 3.1. Currently, SNA’s board consists of five

trustees.1 See Dep. of Jerald Wayne Yost, Ex. 18, May 9, 2016.

       {¶ 4} Article V, Section 1 of the Declaration instructs the Board of Trustees to

create a committee, called the “Architectural Committee,” for the purpose of ensuring “the

general suitability of [new improvements] with [respect to] other construction in the

[s]ubdivision” in terms of “harmony of external design, construction, and location * * *.”

Under § 5.3(a), a homeowner may not construct any improvements “until the construction

plans and specifications” have been “approved in writing by the [c]ommittee.” If the

committee fails “to approve or disapprove any construction plans and specifications * * *

within [30] days [of their submission], then the [committee’s] approval will be deemed to

have been given,” but whether “by default or otherwise, [approval] shall be null and void

unless construction is commenced within [180] days * * *.” Id. at § 5.3(b). Because the

Board of Trustees did not create an independent architectural committee, the board itself

acts in the committee’s place. Id. at § 5.1; Dep. of Aubrey Melvin Kemmer 38:6-39:6,



1This implies that all lots in Stonebridge have been sold or that Stonebridge Land
Development, Inc. has voluntarily ceded control over SNA. See Dep. of Aubrey Melvin
Kemmer 24:19-25:7, May 9, 2016; Dep. of Jerald Wayne Yost 10:2-10:14 and 16:10-17:1,
May 9, 2016.
                                                                                       -4-


May 9, 2016.

      {¶ 5} In February, 2014, Appellants requested permission from SNA to construct a

swimming pool and a pool house on their property. Appellants’ Br. 4. As part of their

request, § 5.3(a) of the Declaration dictated that Appellants submit “construction plans

and specifications showing the nature, kind, shape, size, height, materials, colors, and

location [of the proposed improvements] in adequate detail as required by [SNA’s

Architectural] Committee.” Appellants appear to have complied with this requirement in

making their request. See Appellee’s Br. 4.

      {¶ 6} The Board of Trustees approved Appellants’ submission of February, 2014,

only to the extent of the proposed swimming pool; the board did not approve the pool

house because it exceeded SNA’s limitation on the size of outbuildings to 100 square

feet. Kemmer Dep., Ex. 3; Appellee’s Br. 4; see Decision Granting in Part Pl.’s Mot. for

Summ. J. 2 and 8, Nov. 3, 2016. As a result, Appellants did not build a pool at that time.

See Dep. of Amy L. Knapinski 64:13-66:7, July 29, 2016. Instead, on July 27, 2015,

Appellants submitted a second request for permission to build the pool and the pool

house, apparently consisting of the same plans and specifications that they had submitted

with their first request. Decision Granting in Part Pl.’s Mot. for Summ. J. 2. On or about

August 2, 2015, the Board of Trustees again approved the plans for the pool and

disapproved the plans for the pool house, which had not been changed to conform to the

size limitation imposed by SNA. Id. As previously, Appellants did not begin work on the

pool. See A. Knapinski Dep. 64:13-66:7.

      {¶ 7} Appellants revisited the issue at a meeting of the Board of Trustees held on

September 8, 2015. Id. at 2-3; Appellants’ Br. 4-5; Appellee’s Br. 4-5. They gave the
                                                                                         -5-


board a revised, one-page rendering of the proposed pool and pool house taken from

their earlier submissions, with handwritten notations indicating changes to the shape of

the pool and to the position and the dimensions of the pool house; despite the revisions,

the dimensions of the pool house still exceeded SNA’s size limitation. Decision Granting

in Part Pl.’s Mot. for Summ. J. 2-3; Kemmer Dep., Ex. 3; A. Knapinski Dep., Ex. U; Yost

Dep., Ex. 18. The minutes of the meeting refer to a “request for an outbuilding” at

Appellants’ address and reflect that Appellants “asked about the process required to

change the [b]y-laws” so that the pool house could be approved. See Yost Dep., Ex. 18.

Although the board “passed a motion to put the request [to change the by-laws] to [a]

vote” of the whole membership of SNA, the minutes include no record of any other action

taken by the board in response.2 Decision Granting in Part Pl.’s Mot. for Summ. J. 3.

         {¶ 8} Undeterred, Appellants began construction during the last week of October,

2015.     A. Knapinski Dep. 65:3-66:7.     SNA filed a complaint against Appellants on

December 18, 2015, setting forth causes of action under R.C. 5312.13 for injunctive relief

and recovery of attorney’s fees and costs.3 On August 3, 2016, Appellants filed a motion

for summary judgment, and SNA filed a reciprocal motion on September 21, 2016. The



2 Appellants argue that they submitted a proposal at the meeting sufficient to implicate
the provisions of § 5.3(a)-(b) of the Declaration, obligating the Board of Trustees to
formally approve or disapprove the plans for the improvements within 30 days. See
Appellants’ Br. 5. SNA argues that Appellants sought only a change in the by-laws,
which did not obligate the board to issue a formal approval or disapproval and did not
implicate § 5.3(a)-(b). See Appellee’s Br. 5-6. As well, SNA maintains that the board
informed Appellants it wanted more information about the improvements before it would
consider their proposal, and that Appellants effectively withdrew their proposal by ignoring
the board’s request. Id.
3   The complaint does not refer expressly to the statute.
                                                                                          -6-


trial court overruled Appellants’ motion and sustained SNA’s motion in part—holding that

SNA had demonstrated an entitlement to injunctive relief but had not provided sufficient

evidence of its costs and attorney’s fees. Decision Granting in Part Pl.’s Mot. for Summ.

J. 9-10. Following a hearing on February 7, 2017, the court docketed a final judgment

entry incorporating its decision on the parties’ motions for summary judgment and

awarding SNA $27,281.73, plus statutory interest. Appellants timely filed their notice of

appeal on May 15, 2017.4

                                        II. Analysis

       {¶ 9} For their first assignment of error, Appellants contend that:

              THE TRIAL COURT INCORRECTLY DENIED DEFENDANTS’

       MOTION FOR SUMMARY JUDGMENT AND GRANTED SUMMARY

       JUDGMENT        IN    FAVOR      OF    THE      PLAINTIFF-APPELLEE         BY

       INCORRECTLY INTERPRETING THE COVENANTS, CONDITIONS AND

       RESTRICTIONS (“CCRs”) TO EFFECTIVELY ELIMINATE ONE OF THE

       PROVISIONS, WHICH LEADS TO ABSURD RESULTS NOT INTENDED

       BY THE LANGUAGE OF THE CCRs.

       {¶ 10} Appellants argue that the trial court erred specifically by misinterpreting

Articles V and VII of the Declaration. See Appellants’ Br. 8-10. Citing § 5.1, 5.3(b) and

7.16(a), Appellants posit that 30 days after they provided a revised rendering of their

proposed pool and pool house at the meeting of the Board of Trustees on September 8,

2015, they received permission by default because the board had not issued a written



4Appellants were not served with a copy of the trial court’s final judgment entry until April
21, 2017.
                                                                                              -7-

disapproval in response. See Appellants’ Br. 13.

       {¶ 11} Restrictive covenants, like the Declaration, are “interpreted [according to

the] general [principles of] contract” law. (Citations omitted.) Grace Fellowship Church,

Inc. v. Harned, 2013-Ohio-5852, 5 N.E.3d 1108, ¶ 26 (11th Dist.); see also MJW

Enterprises, Inc. v. Laing, 2d Dist. Montgomery No. 21253, 2006-Ohio-4011, ¶ 17. Thus,

“when interpreting a restrictive covenant, a court’s primary objective is to determine the

parties’ intent as reflected by the language used in the restriction.” (Citations omitted.)

Capital City Cmty. Urban Redevelopment Corp. v. City of Columbus, 10th Dist. Franklin

No. 15AP-943, 2016-Ohio-8266, ¶ 23.              Yet, because “Ohio law does not favor

restrictions on the free use of land,” when the language in a restriction “is unclear or

ambiguous,” a court “must choose the [interpretation that] result[s] in the least limitation”

on use. (Citation omitted.) MJW Enterprises, 2006-Ohio-4011, ¶ 18. Otherwise, when

the “language in a restriction is clear, a court must enforce the restriction, unless it violates

law or public policy.” (Citation omitted.) Id.

       {¶ 12} The trial court found that the Declaration “establish[es] separate functions

[for] the Board of Trustees and the Architectural Committee.” Decision Granting in Part

Pl.’s Mot. for Summ. J. 8. It determined that § 5.3(a)-(b) of the Declaration invests the

Architectural Committee with the responsibility of evaluating the aesthetics of any

proposed improvements, whereas it determined that § 7.16(a), which states that

“[o]utbuildings and detached structures shall not be permitted unless approval, in writing,

is obtained from [SNA] prior to commencement of any construction,” invests the Board of

Trustees with the responsibility of authorizing—or refusing to authorize—the actual

construction of any improvements for which the Architectural Committee has approved
                                                                                             -8-

plans. See Decision Granting in Part Pl.’s Mot. for Summ. J. 7-8. On this basis, the

court concluded that “[e]ven if the [rendering] submitted at the September [8, 2015,]

meeting [of the Board of Trustees] could be construed as ‘construction plans and

specifications,’ the failure of the [b]oard (acting as the Architectural Committee) to

approve the plan[s] within [30] days only result[ed] in approval from the Architectural

Committee,” and not permission from the Board of Trustees to begin construction. Id. at

8.

       {¶ 13} Appellants describe the trial court’s analysis of the Declaration as “illogical,

inconsistent, and potentially impossible,” offering a series of comparisons to illustrate their

point. For example, Appellants suggest the Declaration would allow “an entire house [to

be built] if the A[rchitectural] C[ommittee] * * * does not respond in writing within 30 days

of a plan submission, but an outbuilding must have written approval of the [committee]

and * * * separate written [permission from] the Board [of Trustees], which is the same

exact entity as the A[rchitectural] C[ommittee], even if * * * the [b]oard [takes] [five] or ten

years” to grant permission. See Appellants’ Br. 12. In short, Appellants insist that the

“approval” of plans under § 5.3(b) satisfies the requirement in § 7.16(a) that “approval, in

writing,” be “obtained from [SNA] prior to [the] commencement” of work. Id.

       {¶ 14} We concur with the trial court. Section 5.3(a) of the Declaration sets forth

a specific description of the role of the Architectural Committee in reviewing plans for a

proposed improvement, which is to evaluate “the nature, kind, shape, size, height,

materials, colors and location,” as well as “general suitability,” of the improvement in

comparison to “existing or proposed surrounding structures.” Interpreted in conjunction

with § 5.3(a), the scope of the committee’s approval or disapproval under § 5.3(b) is
                                                                                           -9-


limited to the committee’s aesthetic evaluation of a proposal. Section 7.16(a), however,

requires permission from “the Association,” rather than the Architectural Committee, “prior

to [the] commencement of construction” of an outbuilding.

       {¶ 15} Appellants’ argument to the contrary has only superficial support in the text

of the Declaration. Though homeowners must obtain approval in writing from SNA “prior

to commencement” of construction of outbuildings, neither § 7.11 (“Completion of

Construction”) nor § 7.21 (“Size of Residence[s]”) includes a similar requirement for

houses. Even so, § 7.11 and 7.21 impose several specific restrictions that permit SNA

to exercise at least as much control over the construction of houses as it has over the

construction of outbuildings. Compare § 5.3(a) and 7.16(a), with § 7.11 and 7.21(a).

Appellants, for that matter, overlook the contextual explanation for why the drafters of the

Declaration would require only the Architectural Committee’s approval of plans before

authorizing the construction of a house, but for an outbuilding, the committee’s approval

as well as permission from the Board of Trustees.

       {¶ 16} Section § 7.11(a) states that “[c]onstruction of a residence building on any

[lot] is to be completed within two * * * years from the date of the original purchase [of the

lot] from [Stonebridge Land Development, Inc.]” and “within one * * * year” from the date

of commencement, and it adds that the developer “reserves the right to repurchase any

lot in the [s]ubdivision upon which the construction of [a] residential building has not been

completed” within the foregoing two-year period.        The reference to the “date of the

original purchase” along with the developer’s reservation of the right to repurchase,

appears to explain why the Declaration requires only the Architectural Committee’s

approval of plans before allowing construction of a house to begin—the developer wanted
                                                                                          -10-


to minimize the number of vacant lots in the subdivision at any given time, or in other

words, to have the subdivision populated as quickly as possible.            See also, e.g.,

Declaration § 3.5 (stating that the developer “recognizes that until a sufficient number of

[l]ots are conveyed to [o]wners, [SNA’s] expenses * * * to maintain * * * [e]asement [a]reas

may be greater than the amount assessed” under R.C. 5312.11 from existing owners,

and indicating that the developer “may advance funds” to SNA in the form of a loan).

Article V’s treatment of outbuildings, on the other hand, appears to have been drafted in

contemplation of the construction of subsequent improvements by owners already living

in the subdivision, which likewise appears to explain why the Declaration requires two

levels of authorization for outbuildings, but only one for houses.

       {¶ 17} Read together, § 5.3 and 7.16 establish a two-step process of review for a

proposed outbuilding in which two different groups, the Architectural Committee and SNA

(acting through the Board of Trustees), issue authorizations for two distinct purposes:

approval of the design, and permission to build. Although pursuant to § 5.1 the board

also acted as the committee in this case, its failure to approve or disapprove Appellants’

submission of September 8, 2015, could have resulted only in the default approval of the

design of the pool and the pool house under § 5.3(b). Section 7.16(a), by contrast,

includes no provision limiting the time in which the Board of Trustees must grant or deny

permission to begin construction, meaning that permission to begin construction cannot

be granted by default. Irrespective of the logic of this process vis-à-vis the processes

applicable to other kinds of improvements, SNA appears to have devoted special

attention to the construction of outbuildings owing to a perception that they tend to detract

from the overall appearance and value of property in the subdivision. See Kemmer Dep.,
                                                                                         -11-


Exs. 3 and 12; Yost Dep. 74:3-74:20.

       {¶ 18} Consequently, we find that the trial court’s interpretation of § 5.1, 5.3 and

7.16 is an accurate reflection of the intent of the parties to the Declaration. Assuming for

sake of argument that Appellants’ submission to the Board of Trustees on September 8,

2015, constituted “plans and specifications” for purposes of § 5.3(a), we hold that default

approval of the plans did not constitute authorization under § 7.16(a) for Appellants to

proceed with construction. Appellants’ first assignment of error is overruled.

       {¶ 19} For their second assignment of error, Appellants contend that:

              THE TRIAL COURT GRANTED INCORRECT RELIEF IN THE

       JUDGMENT ENTRY TO THE PLAINTIFF-APPELLEE TO HAVE THE

       POOL HOUSE TIMELY REMOVED FROM THE DEFENDANTS-

       APPELLANTS’ PROPERTY WHEN THAT RELIEF WAS NEVER

       REQUESTED BY THE PLAINTIFF OR ADDRESSED BY THE PARTIES.

       {¶ 20} Appellants challenge the trial court’s order granting injunctive relief to SNA

and requiring “the timely remov[al] from their property” of any “unauthorized outbuilding.”

Judgment Entry 1, Mar. 8, 2017; Appellants’ Br. 20-21. They argue that the court’s order

is inequitable because the Board of Trustees “could have prevented the building of the

pool house [by obtaining] a preliminary injunction, [yet the board] did nothing but watch

the pool house be built.” Appellants’ Br. 24.

       {¶ 21} We find that Appellants’ argument has little merit. Regardless of whether

the board could have sought injunctive relief before Appellants actually broke ground,

Appellants themselves could, far more easily and cost effectively, have saved the

“significant amounts of money [they spent] to build their pool house” simply by not starting
                                                                                           -12-


the work until their dispute with the board had been resolved, whether informally or

through litigation. Id. As the trial court held, to “the extent that [the pool house] was

voluntarily constructed” by Appellants “in the face of [the instant] litigation, any prejudice

[to their interests] is of their own making.” Judgment Entry 1.

        {¶ 22} The trial court’s order nevertheless fails to incorporate the economic-waste

doctrine. To “determin[e] whether to grant an injunction, [a] court [uses] a balancing

process to weigh the equities involved.” (Citation omitted.) Martin v. Lake Mohawk

Prop. Owner’s Ass’n, 7th Dist. Carroll No. 04 CA 815, 2005-Ohio-7062, ¶ 50.                  In

“weighing these equities, courts have refused to order destruction of costly structures as

a matter of economic waste * * *.” Id., citing Miller v. City of West Carrollton, 91 Ohio

App.3d 291, 632 N.E.2d 582 (2d Dist.1993).

        {¶ 23} Here, the record is insufficient to allow an independent determination of

whether modifying Appellants’ pool house to conform to SNA’s limitation on the size of

outbuildings would result in less economic waste than removing the pool house

altogether. Recognizing that an appellate court “will not disturb a decision of [a] trial

court as to [its] determination of damages absent an abuse of discretion,” we find that the

trial court’s order is arbitrary inasmuch as the court did not discuss the applicability of the

economic-waste doctrine. Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630,

634, 665 N.E.2d 664 (1996). The court should hold a hearing on remand to determine

whether Appellants could cost-effectively conform their pool house to the standards

imposed by SNA. Accordingly, Appellants’ second assignment of error is sustained in

part.

                                       III. Conclusion
                                                                                        -13-


       {¶ 24} We concur with the trial court’s analysis of Articles V and VII of the

Declaration, but we hold that the trial court arbitrarily ordered the destruction of

Appellants’ pool house without addressing the economic-waste doctrine in its final entry

of March 8, 2017. Therefore, we affirm the trial court in part, reverse in part, and remand

the case to the court for further proceedings consistent with this opinion.



                                     .............



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Jonathan S. Zweizig
Jeremy M. Tomb
Patrick J. Janis
Hon. Christopher Gee
