[Cite as Summit Pointe Home Owners Assn., Inc. v. Neslen, 2013-Ohio-2643.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




SUMMIT POINTE HOME OWNERS                             :
ASSOCIATION, INC.,                                               CASE NO. CA2012-11-111
                                                      :
        Plaintiff-Appellant,                                                 OPINION
                                                      :                       6/24/2013

   - vs -                                             :

                                                      :
CRAIG NESLEN, et al.,
                                                      :
        Defendants-Appellees.
                                                      :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 2011-CV-80518


Scott G. Oxley, 325 North Main Street, Suite 204, Springboro, Ohio 45066, for plaintiff-
appellant

Sue Seeberger, 5975 Kentshire Drive, Dayton, Ohio 45440, for defendants-appellees



        S. POWELL, J.

        {¶ 1} Plaintiff-appellant, Summit Pointe Home Owners Association, Inc. (Summit

Pointe), appeals a decision of the Warren County Court of Common Pleas finding in favor of

defendants-appellees, Craig and Dawn Neslen, on its complaint for injunctive relief requiring

the Neslens to remove a shed from their property.
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        {¶ 2} Craig and Dawn Neslen are owners of a residence located within the Summit
                                                        1
Pointe Subdivision in Warren County, Ohio.                  Summit Pointe operates a homeowners

association within this subdivision. Summit Pointe provides services to unit owners and

association members in the neighborhood. The subdivision, including the Neslens' property,

is subject to the terms and provisions found in the Declaration of Covenants, Conditions, and

Restrictions (CCRs) for Summit Pointe. Article 1 of the CCRs contain several use restrictions

on the owners within the association. Article 1 provides in part:

                Article 1. Use Restrictions

                * * *

                1.02 No residence, building, porch, deck, fence, flagpole,
                mailbox, light pole or fixture, swimming pool, pavement,
                driveway, awning, wall or structure of any kind shall be erected,
                placed or altered on any Building Lot without first obtaining the
                written consent of the Architectural Control Committee
                subsequently described herein. All requests for written approvals
                from the Architectural Control Committee shall be accompanied
                by detailed plans and specifications for the proposed
                improvements showing, where applicable, the size, location,
                type, architectural design, spacing, quality, use, construction
                materials, color scheme, grading plan and finish grade elevation
                for said improvements

                ** *

                1.25 No barns, storage sheds or other outbuildings shall be
                permitted on any Building Lot.

        {¶ 3} The CCRs also established the Architectural Control Committee (ACC), a

standing committee of the association, comprised of three members, which was responsible

for reviewing applications for improvements to a Building Lot. Article 4 of the CCRs

describes the duties and powers of the ACC. Article 4 provides in part:

                4.03 The use restrictions require the submission of detailed
                plans and specifications to the Committee prior to the erection of,

1. For purposes of clarity, we will refer to Craig Neslen as "Neslen" and Dawn and Craig Neslen collectively as
"the Neslens."
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             placement on, or alteration of any structure or improvement on
             any Building Lot. The intent is to achieve an architecturally
             harmonious, artistic and desirable residential subdivision.
             Therefore, while considering the approval or disapproval of any
             plans and specifications submitted, the Committee is directed to
             consider the appropriateness of the improvement contemplated
             in relation to the improvements on contiguous or adjacent lots,
             the artistic and architectural merits of the proposed improvement,
             the adaptability of the proposed improvement to the Building Lot
             on which it is proposed to be made, and such other matters as
             may be deemed by the Committee members to be in the interest
             and benefit of the owners of the Building Lots in the Subdivision
             as a whole.

             ** *

             4.05 The Committee's decisions shall be in writing and shall be
             binding upon all parties in interest. The Committee shall
             approve, disapprove or request additional information with
             respect to any request for approval within thirty (30) days after
             the request shall have been submitted to the Committee for
             approval. The failure of the Committee to approve, disapprove
             or request additional information within said time period shall be
             deemed an approval of any request.

             4.06 If, in the opinion of the Committee, the enforcement of
             these restrictions would constitute a hardship due to the shape,
             dimension or topography of a particular Building Lot in the
             Subdivision, the Committee may permit a variation which will, in
             its judgment, be in keeping with the maintenance of the
             standards of the subdivision.

      {¶ 4} On June 12, 2011, Neslen submitted an improvement application by e-mail to

the ACC and to Summit Pointe's management agent, Community Management Solutions

(CMS), seeking approval to build a 10 feet by 11 feet lean-to shed on his property. Attached

to the application were three pages of detailed drawings of the proposed outdoor

improvement.

      {¶ 5} A few days after receiving the application, one of the ACC members, Sherry

West Beaudoin, contacted Neslen by telephone.          Beaudoin testified that during this

conversation, she "essentially" rejected the application and advised Neslen that she "had no

authority" to consider the application because 1.25 of the CCRs prohibited storage sheds and

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outbuildings. Neslen, however, testified that during this call, Beaudoin merely expressed her

belief that the application would be rejected. Neslen also testified that Beaudoin told him she

would pass the application to the Board and either the Board or CMS would respond to his

application.

       {¶ 6} By July 12, 2011, the Neslens still had not received a decision from the ACC,

the Board or CMS either approving or disapproving the proposed construction. Finally, on

July 19, 2011, Shawna Guajardo with CMS sent Neslen an e-mail stating: "We do not have

the authority to approve a 'shed' because Summit Pointe bylaws [sic] prohibit sheds." Neslen

testified that he saw this e-mail on July 26, 2011. On July 25, 2011, Neslen sent an email to

Summit Pointe stating: "I have, to date, received no formal approval, disapproval or request

for additional information or clarification either by formal mail, e-mail or phone call. Therefore

in accordance with [the CCRs] 4.05, I will begin construction of the proposed structure."

       {¶ 7} After receiving this e-mail, Summit Pointe provided several letters and e-mails

to Neslen, which purported to deny his application. Particularly, Beaudoin sent Neslen an e-

mail which reminded him of their telephone conversation and that his "request was going to

be denied." The Board also sent a letter dated July 26, 2011, which stated that the ACC had

denied his request for a shed.

       {¶ 8} Despite these letters, the Neslens began construction of the shed in August or

September of 2011. On September 13, 2011, Summit Pointe filed a verified complaint

seeking a temporary restraining order, preliminary and permanent injunctive relief, and

damages. The complaint sought to enjoin the Neslens from violating a restrictive covenant,

and requiring them to remove the shed. The Neslens answered. The temporary restraining

order was denied, and a hearing on the merits of the injunction and damages was held on

January 18, 2012. After considering the evidence, the magistrate found the covenant could

not be enforced against the Neslens and that judgment should be entered in their favor. In
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reaching this decision, the magistrate found Summit Pointe was required, under 4.05, to

issue a timely written decision to Neslen's application, the failure to do so effectively

approved the construction of the shed by the default provision of 4.05. Summit Pointe filed

objections to the magistrate's decision. The trial court overruled these objections and

entered judgment in favor of the Neslens. Summit Pointe timely appealed, raising three

assignments of error for our review.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE      TRIAL     COURT        ERRED       TO     THE      PREJUDICE        OF

PLAINTIFF/APPELLANT IN FINDING THAT PLAINTIFF WAS REQUIRED TO NOTIFY

DEFENDANTS IN WRITING WITHIN THIRTY (30) DAYS OF DEFENDANTS

APPLICATION.

       {¶ 11} Assignment of Error No. 2:

       {¶ 12} THE      TRIAL     COURT        ERRED       TO     THE      PREJUDICE        OF

PLAINTIFF/APPELLANT IN FINDING THAT THE ARCHITECTURAL CONTROL

COMMITTEE SERVED THE FUNCTION TO APPROVE, DISAPPROVE OR REQUEST

ADDITIONAL INFORMATION FOR APPLICATIONS STRICTLY PROHIBITED BY THE

CCR'S.

       {¶ 13} We recognize that a trial court's decision to grant or deny an injunction is

reviewed by this court for an abuse of discretion. Ray v. Bd. of Union Twp. Trustees, 12th

Dist. No. CA2006-06-039, 2007-Ohio-3001, ¶ 10, citing Danis Clarkco Landfill Co. v. Clark

Cty. Solid Waste Mgmt. Dist., 73 Ohio St.3d 590, 604. However, the trial court first had to

interpret provisions within the CCRs before it could entertain the claim for injunctive relief.

The construction of written instruments, including deeds, is a matter of law that we review de

novo. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the

syllabus; see also Cartwright v. Allen, 12th Dist. No. CA2011-10-025, 2012-Ohio-3631, ¶ 10.
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       {¶ 14} Summit Pointe's first and second assignments of error each challenge the trial

court's interpretation of certain provisions and restrictive covenants contained within the

CCRs. Ordinary rules of contract construction are used to construe a restrictive covenant.

Fettro v. Rombach Ctr., LLC, 12th Dist. CA2012-07-018, 2013-Ohio-2279, ¶ 12; Dillingham v.

Do, 12th Dist. Nos. CA2002-01-004 and CA2002-01-017, 2002-Ohio-3349, ¶ 18. Thus,

covenants should be construed consistent with the parties' intent. To determine the parties'

intent, we must look to the language of the covenant itself. Dillingham at ¶ 18; Todd Dev.

Co., Inc. v. Morgan, 12th Dist. No. CA2005-11-124, 2006-Ohio-4825, ¶ 32, rev'd on other

grounds, Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87. The language

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

creation of the covenant. Dillingham at ¶ 18. "If the language is unambiguous, the restriction

must be enforced as written." Morgan at ¶ 32.

                                  A. Interpretation of 4.05

       {¶ 15} In its first assignment of error, Summit Pointe argues that Section 4.05 is written

in the "disjunctive."   Summit Pointe asserts that Section 4.05 contains two separate

requirements: (1) that decisions by the ACC be made in writing, and (2) that the ACC's

approval, disapproval or request for additional information on an application for improvement

be made within 30 days. Summit Pointe contends that these two separate requirements

were met because the ultimate decision, denying Neslen's request to construct a shed was

denied in writing by a letter from the Board dated July 26, 2011, and the ACC's disapproval of

the application occurred within 30 days as Beaudoin communicated the disapproval to

Neslen during the telephone conversation in June 2011. Summit Pointe argues the trial court

erred by reading these two sentences together and finding that the ACC's decision to

approve, disapprove or request additional information on an application must be made both

in writing and within 30 days. Summit Pointe's argument is unpersuasive. Summit Pointe's
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interpretation of Section 4.05 is simply not warranted by the language of the section.

       {¶ 16} The language of Section 4.05 is clear and unambiguous. It simply means

exactly what is written and cannot be interpreted to mean anything else. Section 4.05 clearly

requires the ACC to render in writing, its decision to approve, disapprove or request

additional information as to an application for adding an improvement to a member's

property. The final sentence in Section 4.05 in no uncertain terms, states that the failure of

the ACC to issue such a written decision within the 30 day time period is deemed to be an

approval of any request.

       {¶ 17} Even in light of this clear and unambiguous language, Summit Pointe urges us

to construe the requirements under Section 4.05 to allow the ACC to communicate an

approval, disapproval or request for additional information by any means, including verbal

notice. Section 4.05 simply does not allow for the communication of the ACC's decision in

this manner. Rather, as Section 4.05 states, the "Committee's decisions shall be in writing."

(Emphasis added.) The intent of this provision is for the ACC to provide homeowners with a

prompt written response to a request to make an improvement on their property as

contemplated by the CCRs. This is further exemplified by the language used in Section 1.02.

This section states that no "building * * * or structure of any kind shall be erected * * * without

first obtaining the written consent of the [ACC] * * *. All requests for written approvals from

the [ACC] shall be accompanied by detailed plans."

       {¶ 18} Given the language of Section 4.05, the ACC was required, in writing, to

approve, disapprove, or request additional information within 30 days of the Neslen's request

for approval to add a shed to their property or else it was deemed approved. As ACC did not

render a decision in writing approving, disapproving, or requesting additional information on

the Neslen's request, within 30 days, the trial court correctly found that the ACC approved the

application pursuant to Section 4.05.
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                                                                     Warren CA2012-11-111

        {¶ 19} As the trial court properly found that Neslen's application was not properly

denied by the ACC, and therefore deemed approved, the trial court did not abuse its

discretion in denying Summit Pointe's request for an injunction.

        {¶ 20} Summit Pointe's first assignment of error is overruled.

                        B. The ACC's obligations under the CCRs

        {¶ 21} In its second assignment of error, Summit Pointe argues that Article 4 does not

give the ACC the power or authority to accept, reject or even consider applications from

homeowners which request approval to make an improvement on their property which is

strictly prohibited by the CCRs. Rather, Summit Pointe asserts the ACC is only able to

approve, disapprove or request additional information pertaining to the submission of plans

that are "actually allowed to be constructed consistent with the CCRs." Summit Pointe

further contends that because sheds are strictly prohibited by Section 1.25, "neither the

[ACC] nor the Board can ever approve construction of a storage shed."

        {¶ 22} The trial court, in overruling Summit Pointe's objections to the Magistrate's

Decision, rejected this argument, finding that construing the use restriction in Section 1.25

such that no action is required by the ACC is "rigid" and "unreasonable." We agree with the

trial court.

        {¶ 23} Article 4 empowers the ACC to consider plans and specifications, submitted by

homeowners, for the erection of, placement on or alteration of any structure or improvement

on any Building Lot. As mentioned in Sections 4.03 and 1.02, the use restrictions require

homeowners to obtain written approval by the ACC before any structure or improvement is

made to the property. Section 4.03 refers to the "use restrictions" without limitation. Section

1.02 similarly indicates that written approval of the ACC is required before erecting a

structure of any kind. Neither of these sections provide for any exception to this written

approval requirement when the request relates to a specific use restriction or a specific type
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of structure. Additionally, Section 4.05 states that the ACC "shall approve, disapprove or

request additional information with respect to any request." (Emphasis added.) The

language used in these sections is clear and unambiguous. The ACC may consider all use

restrictions and any detailed plans or specifications for the erection of any structure or

improvement to a Building Lot.

       {¶ 24} Moreover, the use of the words any request in Section 4.05 indicates the

parties' intent that the ACC is required to issue a decision on any request made by a

homeowner. The approval or disapproval by the ACC is not limited to those requests that are

not specifically prohibited by the CCRs. If the parties had intended the ACC to only consider

those requests that were in compliance with the use restrictions of Article 1, then it should

have stated as much. Certainly, the ACC was entitled to disapprove Neslen's request based

on Section 1.25, yet, the failure to timely do so, as described above, effectively approved the

request. The mere fact that Section 1.25 entitled the ACC to disapprove the application does

not mean that they were not required to consider the application.

       {¶ 25} Based on the clear and unambiguous language of Sections 1.02, 4.03, 4.05,

and 4.06 we find the trial court did not err in finding the ACC had the authority to consider all

requests for approvals and not just those "actually allowed" by the CCRs. Accordingly, the

trial court did not abuse its discretion in denying Summit Pointe's request for an injunction.

       {¶ 26} Assignment of Error No. 3:

       {¶ 27} THE      TRIAL      COURT        ERRED       TO     THE      PREJUDICE         OF

PLAINTIFF/APPELLANT BY RELYING ON LISY V. MAYFAIR ESTATES IN SUPPORT OF

THE MARCH 6, 2012 DECISION.

       {¶ 28} In its third and final assignment of error, Summit Pointe asserts the trial court

erred by relying on Lisy v. Mayfair Estates Homeowners Assn., Inc., 9th Dist. No. 25392,

2012-Ohio-68, in denying its request for an injunction. Summit Pointe argues that the facts in
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the present case are "not at all similar to the Lisy situation" such that the trial court erred in

relying on it.

       {¶ 29} In Lisy, homeowners were subject to a declaration of covenants.                 The

covenants, similar to the ones at issue here, provided that the homeowners association

board of trustees "must render its decision in respect to any plans or specifications submitted

to it and give notice thereof to an owner within seven (7) days after the owner delivers [the

plans or specifications]. Failure to give notice of its decision within said 7 days shall be

deemed to be an approval of the plans and specifications submitted." Id. at ¶ 15. The Lisy

court found that the Board effectively approved a homeowner's request for approval of plans

to build an outbuilding based on the above language where the Board failed to expressly

approve or deny the plan within 7 days. Id. at ¶ 17.

       {¶ 30} After a review of the decision in Lisy, we find that Lisy is factually similar to the

case at bar. Moreover, "all opinions of the courts of appeals issued after May 1, 2002 may

be cited as legal authority and weighted as deemed appropriate by the courts." Rep.Op.R.

3.4. In light of the facts present in this case, the trial court appropriately gave the Lisy

decision some weight in interpreting a similar default approval provision. Accordingly, the

trial court did not abuse its discretion in using the Lisy decision to guide its determination in

this matter.

       {¶ 31} Summit Pointe's third and final assignment of error is overruled.

       {¶ 32} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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