[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]


                                      COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                   :     JUDGES:
WINGATE FARMS OWNERS                               :     Sheila G. Farmer, P.J.
ASSOCIATION                                        :     John W. Wise, J.
                                                   :     Julie A. Edwards, J.
  Plaintiff-Appellee / Cross-Appellant             :
                                                   :     Case No. 11-CAE-05-0041
-vs-                                               :
                                                   :
                                                   :     OPINION
SANKARSETTI K. SANKARAPPA, et
al.,

   Defendants-Appellants /
   Cross-Appellees




CHARACTER OF PROCEEDING:                                   Civil Appeal from Delaware County
                                                           Court of Common Pleas Case No.
                                                           08-CV-1371

JUDGMENT:                                                  Affirmed

DATE OF JUDGMENT ENTRY:                                    December 30, 2011

APPEARANCES:

For Plaintiff-Appellee /                                   For Defendants-Appellants /
Cross-Appellant                                            Cross-Appellees

PAUL GIORGIANNI                                            STEPHEN D. MARTIN
Giorgianni Law LLC                                         DENNIS L. PERGRAM
1538 Arlington Avenue                                      Manos, Martin, Pergram &
Columbus, Ohio 43212-2710                                  Dietz Co., LPA
                                                           50 North Sandusky Street
HENRY W. ECKHART                                           Delaware, Ohio 43015-1926
1200 Chambers Road, #106
Columbus, Ohio 43212
[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]


Edwards, J.

        {¶1}    Appellants/Cross-appellees, Sankarsetti and Manjula Sankarappa, appeal

a judgment of the Delaware County Common Pleas Court entering declaratory

judgment in their favor but failing to award attorney fees against appellee/cross-

appellant Wingate Farms.

                                  STATEMENT OF FACTS AND CASE

        {¶2}    Appellee is a homeowners association of which appellants are members.

Appellants have a barn on their property which had needed extensive repairs.

        {¶3}    Appellee filed a complaint against appellants alleging that the barn was

not in compliance with deed restrictions and seeking an injunction ordering appellants to

remove the barn and an injunction ordering appellants to stop the replacement or repair

of the barn. This complaint also sought $25,000.00 in damages, a lien on the property

and attorney fees.

        {¶4}    Appellee next filed a first amended complaint, raising the same causes of

action but noting that appellants proceeded to work on the roof of the barn despite their

failure to obtain appellee’s approval of the plan. Appellee did not however seek a

temporary injunction to prevent further work on the barn.

        {¶5}    Appellants then filed a counterclaim seeking a declaration that deed

restrictions 8.01, 8.03, 8.04, 8.05, 8.07, 8.11 and 8.15 do not apply to their property, a

declaration that restrictions 8.03 through 8.06 do not apply to repair of existing

buildings, and a declaration that restriction 8.04 is invalid and unenforceable as against

public policy. Appellants also requested attorney fees.
Delaware County App. Case No. 11-CAE-05-0041                                             3


       {¶6}   Appellee filed a second amended complaint which raised the same

causes of action raised earlier except that count three, asking for a lien on the property,

was removed.

       {¶7}   Finally, on May 12, 2009, appellee filed its final complaint, a third

amended complaint, alleging that both the barn and residence are in violation of the

deed restrictions. The complaint sought an injunction requiring appellants to remove

the barn or bring it into compliance with deed restrictions, an injunction requiring

appellants to bring the residence into compliance, and a finding that appellants have

breached the deed restrictions and appellee is therefore entitled to attorney fees.

       {¶8}   Appellants filed an answer and counterclaim on May 26, 2009.             The

counterclaim raised the same claims raised in the earlier counterclaim.

       {¶9}   Appellants moved for partial summary judgment on the complaint and on

count three of their counterclaim. They also moved for summary judgment on the claim

for injunctive relief, arguing it was moot because the barn had been brought into

compliance.

       {¶10} Appellee responded by withdrawing their prayer for injunctive relief on

counts one and two of their complaint regarding noncompliance of the house and barn.

However, appellee did not withdraw the substantive allegations supporting counts one

and two, regarding violation of the deed restrictions, because they intended to show that

appellants violated the deed restrictions in support of the claim for attorney fees.

       {¶11} On April 6, 2011, the trial court granted appellant’s motion for summary

judgment and entered declaratory judgment finding article 8.04 of the deed restrictions

to be invalid and unenforceable as against public policy. The court dismissed counts
Delaware County App. Case No. 11-CAE-05-0041                                             4


one and two of appellants’ counterclaim and dismissed appellee’s entire complaint. The

court held that each party should pay their own attorney fees. Appellants assign one

error on appeal:

        {¶12} “THE    TRIAL     COURT     COMMITTED          PREJUDICIAL     ERROR     BY

ENTERING A JUDGMENT RULING THAT EACH PARTY SHALL PAY THEIR OWN

ATTORNEY         FEES,     NOTWITHSTANDING            THAT     THE    SUBJECT       DEED

RESTRICTIONS         BEFORE      THE     TRIAL       COURT     PROVIDED      THAT     THE

UNSUCCESSFUL PARTY OR PARTIES SHALL PAY THE ATTORNEY FEES OF THE

PREVAILING PARTY OR PARTIES.”

        {¶13} Appellee assigns three errors on cross-appeal:

        {¶14} “I. THE TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT

DECLARING DEED RESTRICTION 8.04 UNENFORCEABLE.

        {¶15} “II.   THE   TRIAL    COURT      ERRED      BY    OVERRULING        CROSS-

APPELLANT’S MOTION TO VACATE THE SUMMARY JUDGMENT DECLARING

DEED RESTRICTION 8.04 UNENFORCEABLE.

        {¶16} “III. THE TRIAL COURT ERRED TO THE EXTENT IT ENTERED

SUMMARY          JUDGMENT        DECLARING           OTHER     DEED      RESTRICTIONS

UNENFORCEABLE.”

                                                 I

        {¶17} Appellants argue that the court erred in overruling their motion for attorney

fees.   They argue that they were entitled to fees under article 9.03 of the deed

restrictions which provides:
Delaware County App. Case No. 11-CAE-05-0041                                                5


       {¶18} “In any legal or equitable proceedings for the enforcement of the

provisions of these Restrictions, the unsuccessful party or parties shall pay the

attorneys’ fees of the prevailing party or parties, in such amount as may be affixed by

the Court in such proceedings. All remedies provided herein or at law or in equity shall

be cumulative and not exclusive.”

       {¶19} R.C. 2721.16(A) bars attorney fees in declaratory judgment actions except

in specific instances, none of which are applicable to this case:

       {¶20} “(A)(1) A court of record shall not award attorney’s fees to any party on a

claim or proceeding for declaratory relief under this chapter unless any of the following

applies:

       {¶21} “(a) A section of the Revised Code explicitly authorizes a court of record to

award attorney’s fees on a claim for declaratory relief under this chapter.

       {¶22} “(b) An award of attorney’s fees is authorized by section 2323.51 of the

Revised Code, by the Civil Rules, or by an award of punitive or exemplary damages

against the party ordered to pay attorney’s fees.

       {¶23} “(c) Regardless of whether a claim for declaratory relief is granted under

this chapter, a court of record awards attorney’s fees to a fiduciary, beneficiary, or other

interested party, the attorney’s fees are to be paid out of trust property, estate property,

or other property that is the subject of a fiduciary relationship and that is involved in that

claim or proceeding for declaratory relief, and the attorney’s fees are awarded in

accordance with equitable principles that permit recovery of attorney’s fees incurred for

services that are beneficial to the trust or estate.”
Delaware County App. Case No. 11-CAE-05-0041                                            6


       {¶24} This Court has previously held that this statute bars an award of attorney

fees in a declaratory judgment action even when a contract provision provides for an

award of fees to the prevailing party. Stark Commons, Ltd. v. Landry’s Seafood House,

Stark App. No. 2008CA00206, 2009-Ohio-3847.

       {¶25} However, appellants argue that they were the prevailing party on parts of

the action that did not involve declaratory judgment. The trial court only disposed of

appellants’ claim for declaratory judgment, count three of the counterclaim, on the

merits. All other claims and counterclaims were resolved on the basis of the trial court’s

declaratory judgment. We therefore find that this proceeding was a proceeding for

declaratory relief within the meaning of R.C. 2721.16(A) and the court did not err in

failing to award attorney fees.

       {¶26} The assignment of error is overruled.

       {¶27} We next address the assignments of error on cross-appeal.

                                               I, II

       {¶28} We address cross-appellant’s first two assignments of error together, as

the parties did in their brief. Both assignments address the propriety of the court’s

summary judgment declaring article 8.04 to be void as against public policy.

       {¶29} Article 8.04 provides:

       {¶30} “Approval shall be based, among other things, upon the effect of the

location and use of improvements on neighboring property; and conformity of the plans

and specifications to the purpose and general intent of these restrictions.”
Delaware County App. Case No. 11-CAE-05-0041                                             7


       {¶31} The trial court found that the language of this restriction provided no

standards by which a reviewing committee is to approve or disapprove the proposed

improvements and provided no standards to be applied.

       {¶32} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must

refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, 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. No evidence or

stipulation may be considered except as stated in this rule. A summary judgment shall

not be rendered unless it appears from the evidence or stipulation, and only from the

evidence or stipulation, that 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, that party being entitled to have the evidence or stipulation construed most

strongly in the party’s favor.”

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

if it appears a material fact is genuinely disputed.     The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically
Delaware County App. Case No. 11-CAE-05-0041                                            8


point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.

Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

      {¶34} Cross-appellant first argues that the court erred in ruling on the

declaratory judgment claim because the case was moot. Notwithstanding their failure to

dismiss their complaint or to file a fourth amended complaint withdrawing certain claims,

they argue that they had agreed to not pursue their claims against cross-appellees and

had withdrawn their claims because the barn had been brought into compliance with the

deed restrictions during the pendency of the lawsuit.       Cross-appellant argues that

because there was no case or controversy between the parties, the court’s opinion is

merely advisory.

      {¶35} This Court has previously held that in order to obtain declaratory relief, the

proceeding must be based on an actual controversy, and declaratory judgment does not

lie to obtain an advisory opinion or answer an abstract question in a hypothetical

situation. Mansfield Plumbing Products LLC v. Estate of Sparks, Richland App. No.

2004-CA-0094, 2005-Ohio-3121, ¶10.

      {¶36} In the instant case, cross-appellant stated in its response to cross-

appellees’ motion for partial summary judgment that cross-appellant intended to

withdraw its claims for relief on the first two counts of the complaint relating to their

request for an injunction ordering the barn and residence to be brought into compliance

or torn down. However, cross-appellant continued to seek a ruling from the court that
Delaware County App. Case No. 11-CAE-05-0041                                            9


cross-appellees had violated the deed restrictions, in order to be entitled to attorney

fees as the prevailing party in the action. Therefore, a case or controversy still existed

between the parties related to cross-appellees’ compliance with the deed restrictions

and the enforceability of the deed restriction at issue was therefore, an issue between

the parties. The trial court’s decision was not advisory.

       {¶37} Cross-appellant also argues that the trial court erred on the merits in

finding the deed restriction unenforceable as vague and overbroad.

       {¶38} The trial court relied on this Court’s opinion in D&N Development, Inc. v.

Schrock (March 29, 1990), Tuscarawas App. No. 89AP080066. In that case, the deed

covenant in question provided:

       {¶39} “2. No building shall be erected, placed, or altered on any lot until the

construction plans and specifications and a plan showing the location of the structure

have been approved by the architectural control committee as to quality of workmanship

and materials, harmony of external design with existing structures, and as to location

with respect to topography and finish grade elevation. Approval shall be obtained as

provided in 2(b) herein.

       {¶40} “(a) The architectural control committee is composed of Dale R.

Waldemyer, 838 Boulevard, Dover, Ohio, Norma D. Waldemyer, 838 Boulevard, Dover,

Ohio and the Service Director, City Building, Dover, Ohio. A majority of the committee

may designate a representative to act for it. In the event of death or resignation of any

member of the committee, the remaining members shall have full authority to designate

a successor. Neither the members of the committee, nor its designated representative

shall be entitled to any compensation for services performed pursuant to this covenant.
Delaware County App. Case No. 11-CAE-05-0041                                         10


At any time, the then record owners of a majority of the lots shall have the power

through a duly recorded written instrument to change the membership of the committee

or to withdraw from the committee or restore to it any of its powers and duties.

      {¶41} “(b) The committee's approval or disapproval as required in these

covenants shall be in writing. In the event the committee, or its designated

representatives, fails to approve or disapprove within 30 days after plans and

specifications have been submitted to it, or in any event, if no suit to enjoin the

construction has been commenced prior to the completion thereof, approval will not be

required and the related covenants shall be deemed to have been fully complied with.”

      {¶42} We found that a restriction that does not give notice to the parties

regarding the standards to which they must conform is void as contrary to public policy

because such a restriction is too broad in scope, leaving too much control over the

property vested in the hands of someone other than the owner of the property. Id. We

accordingly found the above-cited deed covenant to be overly broad and vague, and

therefore contrary to public policy and unenforceable. Id.

      {¶43} The deed restriction in question is similarly vague, giving no real

standards to which the homeowner must conform other than “the effect of the location

and use of improvements on neighboring property; and conformity of the plans and

specifications to the purpose and general intent of these restrictions.” The restriction

further provides that “other things” may be considered without delineating what such

other things might be. Cross-appellant attempts to distinguish this case from D&N on

the basis that cross-appellees had actual notice of what standards they were not

complying with regarding the barn. However, cross-appellant presented no material of
Delaware County App. Case No. 11-CAE-05-0041                                              11


evidentiary quality to the trial court regarding such notice and can therefore not now

argue that the trial court erred in failing to find that cross-appellees had actual notice of

the standards the association was attempting to apply.

         {¶44} The first and second assignments of error are overruled.

                                                  III

         {¶45} Cross-appellant argues that the trial court erred in finding deed restrictions

8.01, 8.02, 8.03, 8.05 and 8.06 unenforceable.

         {¶46} The trial court made the following statement in its April 6, 2011 judgment

entry:

         {¶47} “The Court did not dismiss Plaintiff’s Counts 1, 2 and 3 based upon

mootness. The Court found that provision 8.04 was invalid and unenforceable and

against public policy. Therefore, Defendants were granted declaratory judgment as to

that provision, which was Count 3 of Sankarappas’ Counterclaim. Accordingly, deed

provisions 8.01, 8.02, 8.03, 8.05 and 8.06, which relate to the plan approval process as

addressed in 8.04, were unenforceable. Based upon this finding, the Court concluded

that injunctive and mandatory relief could not be granted, thus granting summary

judgment in favor of Defendants as to the Counts 1 and 2 of Plaintiff’s Third Amended

Complaint. The Court further granted Defendants summary judgment as to Count 3,

since Plaintiff should not be entitled to attorney fees in its efforts to enforce invalid or

unenforceable deed restrictions.”

         {¶48} The court then went on to dismiss all counts of the complaint and counts

one and two of the counterclaim based on its declaration that 8.04 is void and

unenforceable. While the court perhaps should not have used the word “unenforceable”
Delaware County App. Case No. 11-CAE-05-0041                                             12


relating to deed provisions 8.01, 8.02, 8.03, 8.05 and 8.06, we do not interpret the

court’s entry to find those provisions unenforceable at all times and in all circumstances.

Rather, the court is explaining its conclusion that if article 8.04 is void, cross-appellant

cannot prevail on its claims that cross-appellees did not comply with the plan approval

process set forth in other sections of the deed restrictions. Cross-appellees specifically

sought a declaration that articles 8.04, 8.03, 8.05, 8.06, 8.07, 8.11 and 8.15 were

unforceable in counts one and two of the counterclaim and the trial court dismissed both

of these counts of the counterclaim. Contra to cross-appellant’s argument, the court did

not declare any provision of the deed restrictions to be void and unenforceable except

for article 8.04.

       {¶49} The third assignment of error is overruled.
Delaware County App. Case No. 11-CAE-05-0041                                      13


      {¶50} The judgment of the Delaware County Common Pleas Court is affirmed.

Costs of the appeal are to be paid by appellants/cross-appellees. Costs of the cross-

appeal are to be paid by appellee/cross-appellant.



By: Edwards, J.

Wise, J. concur and

Farmer, P.J. concurs separately

                                                     ______________________________



                                                     ______________________________



                                                     ______________________________

                                                              JUDGES

JAE/r0831
Delaware County App. Case No. 11-CAE-05-0041                                           14



Farmer, J., concurs separately

      {¶51} Although I concur with the majority's disposition of appellants' assignment

of error, I would not find that deed restriction 8.04 is against public policy or void and

unenforceable.




                                                ________________________________


                                                HON. SHEILA G. FARMER
[Cite as Wingate Farms Owners Assn. v. Sankarappa, 2011-Ohio-6922.]


            IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


WINGATE FARMS OWNERS                                :
ASSOCIATION                                         :
                                                    :
       Plaintiff-Appellee / Cross-Appellant         :
                                                    :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
SANKARSETTI K. SANKARAPPA, et al.,                  :
                                                    :
          Defendants-Appellants / Cross-            :
          Appellees                                 :       CASE NO. 11-CAE-05-0041




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

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

on the appeal are to be paid by appellants/cross-appellees. Costs assessed on the

cross-appeal are to be paid by appellee/cross-appellant.




                                                        _________________________________


                                                        _________________________________


                                                        _________________________________

                                                                      JUDGES
