[Cite as Washington Twp. Bd. of Trustees v. Ryan, 2013-Ohio-4072.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

BOARD OF TRUSTEES OF                                   :
WASHINGTON TOWNSHIP, et al.

        Plaintiff-Appellee                             :             C.A. CASE NO.    25561

v.                                                     :             T.C. NO.   11CV2138

JAMES E. RYAN, et al.                                  :             (Civil appeal from
                                                                     Common Pleas Court)
        Defendants-Third Party                         :
        Plaintiff-Appellants
                                                       :

                                             ..........

                                           OPINION

                        Rendered on the         20th       day of       September    , 2013.

                                             ..........

JOSHUA R. SCHIERLOH, Atty. Reg. No. 0078325, One Prestige Place, Suite 700,
Miamisburg, Ohio 45342
      Attorney for Plaintiff-Appellee Washington Township

DAVID C. GREER, Atty. Reg. No. 0009090 and KIRSTIE N. YOUNG, Atty. Reg. No.
0084007, 400 PNC Center, 6 N. Main Street, Dayton, Ohio 45402
      Attorneys for Third Party Defendants-Appellees Lillian Mapp, Chris Welch and Tim
      Welch, Joan Mantil and Joe Mantil, Joyce Koller and Floyd Koller, Mary Mathews
      and David Mathews, Shan Kilian and Steve Kilian, Linda Giffen and Dan Giffen,
      Karissa Acred and Jeff Acred

JAMES K. HEMENWAY, Atty. Reg. No. 0040859, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
       Attorney for Third Party Defendants-Appellees Carin Solganik and Tom Silverii

ROBERT S. FISCHER, Atty. Reg. No. 0071640, 8738 Union Centre Blvd., West Chester,
Ohio 45069
      Attorney for Defendants-Third Party Plaintiffs-Appellants James and Connie Ryan

DAVID EIDELBERG, Atty. Reg. No. 0040530, 88 E. Broad Street, Suite 1600, Columbus,
Ohio 43215
      Attorney for Third Party Defendant-Appellee Allstate Insurance Company

DEAN and CARRIE HINES, 7950 Clyo Road, Centerville, Ohio 45459
     Third Party Defendants-Appellees


                                         ..........

FROELICH, J.

               {¶ 1} James E. and Connie Ryan appeal from two judgments of the

Montgomery County Court of Common Pleas, which related to the Ryans’ use of and/or

failure to maintain property they owned at 6088 Mad River Road. The first judgment

granted summary judgment against the Ryans and in favor of Washington Township on the

Township’s claim for an injunction and for abatement of a nuisance on the Ryans’ property.

The second judgment granted summary judgment against the Ryans and in favor of the the

Ryans’ neighbors on the Ryans’ claims for breach of contract, breach of fiduciary duty,

intentional infliction of emotional distress, intentional interference with use and enjoyment

of property, conversion, and negligence, all of which related to responsibility for the

maintenance of a bridge on the private lane by which the Ryans accessed their home.

       {¶ 2}     For the following reasons, the judgment of the trial court in favor of the

Lane Association on the Ryans’ breach of contract claim will be reversed, and this matter

will be remanded for further proceedings. Summary judgment on the Ryans’ claims for

breach of fiduciary duty, intentional infliction of emotional distress, intentional interference
                                                                                                                                     3

with use and enjoyment of property, conversion, and negligence is affirmed. The judgment

in favor of the Township will also be affirmed.

         {¶ 3}        Additionally, we note that the trial court erroneously “overruled” a purported

motion for summary judgment by one of the Ryans’ neighbors (Carin Solganik) against the

neighborhood association for breach of contract, as no such claim existed and no such

motion had been made.                    Rather, Solganik had asserted claims for contribution and

diminution in value against the Ryans, and had filed a motion for summary judgment on

these claims. The trial court erred in failing to address these claims.

                                            Facts and Procedural History

         {¶ 4}         Mad River Lane1 is a private drive off of Mad River Road in Washington

Township, along which eleven houses were built. Two parcels at the end of the lane were

accessible to vehicles only via a bridge.

         {¶ 5}         Prior to the formation of the Lane Association (described below), both of

the parcels located beyond the bridge were owned by David and Patricia Lehman. The

Lehmans had acquired their property from Frank and Nancy Zoringer in 1981, and the

Lehmans were among the signatories to the Lane Association agreement. The deed to the

Zoringers’ property described two parcels (1 and 2) and four easements (A, B, C, and D).

The deed also contained a restrictive covenant which provided that the Grantors, “and by

acceptance of this deed, Grantees, each agree that the roadway including the bridge * * *

located on Easements A and B * * * shall be maintained, repaired and replaced, if necessary,


             1
              The parties often refer to the private lane along which they live as Mad River Road, but in order to distinguish the lane
   from the public street, Mad River Road, off of which it runs, we will refer to it as Mad River Lane.
                                                                                              4

by Grantees so long as they are the owners of Parcel 1 and thereafter by the subsequent

owner(s) thereof.” The restrictive covenant further provided that the maintenance, repair or

replacement of the roadway described in the easements would be shared proportionately by

the owners of all dwellings located on Parcel 1 at that time or thereafter, in proportion to the

length of the roadway over which access was provided. The property was conveyed by the

Zoringers to the Lehmans subject to all easements, restrictions, covenants, maintenance

requirements, and zoning restrictions.

       {¶ 6}     For many years, the residents of the lane maintained it pursuant to an

informal agreement.2 In 1986, amid concerns about the potential for additional development

in the vicinity, the owners of the properties agreed to formalize their existing arrangement of

contributing to the maintenance of the road and, additionally, to restrict future use of the

road and/or its extension for use by adjacent landowners.       Thus, the “Lane Association”

was formed in 1988. The members agreed that they would “bear the proportionate cost of

maintenance, repair, and clearing of snow in a ratio relating to the benefit derived

therefrom[,] weighted to reflect distance from Mad River Road.”




          2
          The evidence did not suggest whether, under the informal agreement, the
   maintenance of the lane included the bridge.
[Cite as Washington Twp. Bd. of Trustees v. Ryan, 2013-Ohio-4072.]
           {¶ 7}      After the Lane Association was formed, the Lehmans sold part of their

property to the Ryans. 3               A separate, adjoining parcel was sold by the Lehmans to

Christopher and Linda Davis, the predecessors in interest of Carin Solganik. The Ryan and

Solganik residences are at the end of the development, beyond the bridge.

           {¶ 8}    By 1998, the bridge at the back of the lane by which the Ryans and Solganik

accessed their properties required significant repair. The Ryans spent $5,000 to reenforce

the center support of the bridge, but problems with the bridge continued. The Ryans

requested reimbursement from the Lane Association, but the Association refused. The

bridge continued to deteriorate and, in 2008, the Ryans and Solganik stopped using the

bridge. Solganik continued to access her property by foot. The bridge collapsed in 2009.

Solganik eventually replaced the bridge with a military-style Bailey bridge at a cost of over

$70,000, but the bridge was not certified and the weight load was not determined. The Lane

Association repeatedly refused to contribute to the cost of the Ryans’ and Solganik’s repairs

to or replacement of the bridge or to the cost of having the bridge certified.

           {¶ 9}      Due to the lack of certification, the Township refused to allow its vehicles,

including emergency vehicles, to use the bridge.

           {¶ 10}     The Ryans and Solganik believe that the Lane Association bears the

responsibility to maintain and repair the bridge, because it is, in their view, part of the

roadway described in the Association’s Declaration. The Ryans also believe that the terms

of the Lane Association Declaration supercede the provision contained in the Ryans’ deed,

which specified that they were responsible for the maintenance of the bridge (a responsibility

             3
              Based on the positions taken by the parties, it appears that the Ryans acquired “Parcel 1,” as referenced in the Lehman
   deed.
                                                                                            6

placed, by the deed, on the owner of Parcel 1). The Lane Association members (other than

the Ryans and Solganik) believe that the Association is not responsible for the repair,

maintenance, or replacement of the bridge, because the agreement to maintain the lane did

not expressly mention the bridge, because the other members never understood “the lane” to

encompass the bridge, and because the distance calculations that the Association used to

determine contributions to the maintenance of the lane had stopped at the front of the bridge.



       {¶ 11}    The Ryans have not used or maintained their property since the previous

bridge collapsed, and their property is now in a state of disrepair. There are also numerous

vehicles on the property which have remained there since the bridge collapse. Vandalism

has exacerbated the condition of the house and vehicles. Solganik lives in her home, but

with limited services from the Township, because of its refusal to send vehicles over the

new, uncertified bridge.

       {¶ 12}    From June 20, 2008 through November 25, 2008, the Township issued

numerous notices of zoning violations to the Ryans, and in July 2010, the Township notified

the Ryans that they were in violation of the Township’s Nuisance Abatement Resolution.

The Ryans did not take any steps to bring the property into compliance as a result of these

notices, and it does not appear that they appealed administratively from these findings.

       {¶ 13}    On March 21, 2011, Washington Township filed a complaint against the

Ryans for Preliminary and Permanent Injunction and Abatement. The complaint alleged

that the Ryans stored “junk,” “refuse,” and various inoperable items on their property at

6088 Mad River Road, in violation of the township zoning resolution applicable to an R-1
                                                                                                                                 7

single family residential district and its exterior property maintenance code, and that the

Ryans failed to bring their property into compliance when notified of the violations. The

Township characterized the violations as a nuisance adversely affecting public health and

safety. The complaint requested that the court enjoin the continued zoning violations by

issuing “a preliminary and permanent injunction” and ordering the Ryans to abate the

violations.

         {¶ 14}       In their Answer and Third Party Complaint, the Ryans asserted numerous

affirmative defenses and presented claims against the members of the Lane Association4 for

breach of contract in refusing to contribute to payment of the cost of making repairs to and

ultimately replacing the dilapidated bridge leading to their home. They also brought claims

for breach of fiduciary duty, intentional infliction of emotional distress, intentional

interference with use and enjoyment of property, conversion, and negligence.




              4
              All of the members of the Lane Association (other than the Ryans) were named as third-party defendants in the Ryans’
   Third-Party Complaint: Lillian Mapp, Chris and Tim Welch, Joan and Joe Mantil, Joyce and Floyd Koller, Mary and David
   Mathews, Shan and Steve Kilian, Linda and Dan Giffen, Karissa and Jeff Acred, Dean and Carrie Hines, and Carin Solganik and
   Thomas Silverii. The Lane Association was not named as a separate entity. Silverii resides at Solganik’s property, but is not an
   owner of that property or a member of the Lane Association.
[Cite as Washington Twp. Bd. of Trustees v. Ryan, 2013-Ohio-4072.]
         {¶ 15}        The Lane Association members named in the third-party complaint5 filed

an answer denying responsibility for maintaining or repairing the bridge and denying the

Ryans’ other claims. Solganik answered separately and filed a counterclaim against the

Ryans, seeking contribution toward the cost of replacing the bridge and damages for

diminution in the value of her property due to the existence of a nuisance on the Ryans’

property.

         {¶ 16}        In October 2011, the Lane Association filed a motion for summary

judgment on all of the claims in the Ryans’ third-party complaint. In April 2012, the

Township filed a motion for summary judgment on its claim related to the existence of a

nuisance. Also in April 2012, the Ryans filed a motion for partial summary judgment on

their breach of contract claim related to the Lane Association’s responsibility to contribute to

the repair, maintenance, and replacement of the bridge. In May 2012, Solganik filed a

motion for summary judgment on all of the Ryans’ claims, asserting that she had paid for the

replacement of the bridge and had, at all times, supported the Ryans’ position that the Lane

Association was responsible for the maintenance of the bridge.

         {¶ 17}        In June 2012, the trial court granted the Township’s motion for summary

judgment. The court found that there was no genuine issue of material fact that the

property was a nuisance and that the Ryans were in violation of the Township’s Exterior

Code, because they were not maintaining the property or the structures thereon. The court


             5
                Hereinafter, our references to the Lane Association refer only to those members who collectively filed an answer to the
   third-party complaint and, later, a motion for summary judgment. Thus, this reference excludes Solganik, whose interest in the
   bridge differs from those of the other Lane Association members and who proceeded independently in the lower court
   proceedings. It also excludes Dean and Carrie Hines, who filed separate answers, alleging that they did not own property on the
   lane at the relevant times.
                                                                                                                                 9

also concluded that no genuine issue of material fact existed that the property was being used

in violation of Article 7, Section 4(A) of the Township Zoning Resolution, which prohibits

the open storage of inoperable vehicles. The court acknowledged the Ryans’ assertion that

they could not get to their property, but concluded that the reason for the violation “carrie[d]

no weight.”

         {¶ 18}       In October 2012, the trial court granted the Lane Association’s motion for

summary judgment on the breach of contract claim, and denied the Ryans’ motion for

summary judgment on this issue, finding that the Association was not required to contribute

to the repair, maintenance, and/or replacement of the bridge. The court noted that the

Ryans’ deed placed responsibility for the bridge on the owner of Parcel 16 and that the Lane

Association Declaration did not expressly or impliedly alter or supercede the Ryans’ deed

“in the event of a discrepancy.”                Because what would happen in the event of a discrepancy

between the deed and the Declaration was not addressed in the Declaration, the court looked

to intent of the parties. The court concluded that the intent of the signers of the Declaration

had been for the formal “lane” to end at the front of the bridge that led to the Ryan and

Solganik properties. The court further concluded that no genuine issue of material fact

existed as to the Ryans’ claims for breach of fiduciary duty, intentional infliction of

emotional distress, intentional interference with use and enjoyment of property, conversion,

or negligence. In so holding, the trial court granted the Lane Association’s motion for

summary judgment against the Ryans in its entirety and overruled the Ryans’ motion for


             6
              The court stated that it could not determine who currently lived on Parcel 1, as between the Ryans, Solganik, and the
   Hineses, but that it was clear that none of the homeowners to whom we have referred as the Lane Association lives on Parcel 1.
                                                                                                                                10

partial summary judgment. The court stated that Solganik’s motion for summary judgment

against the Ryans was overruled “to the extent that the Lane Association is required to pay

for the certification and the cost of the bridge.”7

         {¶ 19}        The Ryans appeal from the trial court’s judgments in favor of the Lane

Association on the breach of contract claim and in favor of the Township on the nuisance

claim. The Ryans do not challenge the summary judgment on their claims for breach of

fiduciary duty, intentional infliction of emotional distress, intentional interference with use

and enjoyment of property, conversion, or negligence. They raise two assignments of error.

         {¶ 20}        The Ryans’ first assignment of error states:

         THE TRIAL COURT ERRED IN GRANTING THE LANE ASSOCIATION

         MEMBERS[’] MOTION FOR SUMMARY JUDGMENT AND DENYING

         THE RYAN[S’] MOTION FOR SUMMARY JUDGMENT, FINDING THE

         LANE ASSOCIATION MEMBERS ARE NOT RESPONSIBLE FOR THE

         BRIDGE MAINTENANCE, REPAIR, AND REPLACEMENT.

         {¶ 21}        The Ryans contend that the trial court erred in granting summary judgment

in favor of the Lane Association members because 1) the Declaration that created the Lane

Association “clearly and unambiguously” required the maintenance of the lane, 2) due to the

clarity of the Declaration, there was no reason to look at or rely on the restrictive covenant in



             7
               The trial court’s judgment, read as a whole, found that the Lane Association was not required to pay for the
   replacement or certification of the bridge; thus, the court’s statement that Solganik’s motion for summary judgment was
   “overrule[d] * * * to the extent that the Lane Association was required to pay” for the bridge is unclear. Moreover, Solganik did
   not have a claim against the Lane Association members; her counterclaim was only against the Ryans. Solganik has not appealed
   from the trial court’s judgment.
                                                                                            11

the Ryans’ deed, and 3) at the very least, there was a genuine issue of material fact regarding

the Lane Association’s responsibility to maintain the bridge, such that summary judgment

was inappropriate.

       {¶ 22}    Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the

nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club,

Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the

initial burden of affirmatively demonstrating that no genuine issue of material fact remains

to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To

this end, the movant must be able to point to evidentiary materials of the type listed in

Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,

75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

       {¶ 23}    Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or

as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a

genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in

favor of the nonmoving party. Id.

       {¶ 24} The Ryan deed contained a restrictive covenant which stated that the

grantees (the Ryans) and their successors in interest agreed to maintain, repair, and replace

the roadway located on Easements A and B, including the bridge. No one has denied that
                                                                                             12

the bridge referenced in the deed is the same bridge at issue in this litigation.

       {¶ 25}    “A ‘restrictive covenant’ is a private, contractual agreement, usually

embodied in a deed or lease, that restricts the use or occupancy of real property.” Canton v.

Ohio, 95 Ohio St.3d 149, 766 N.E.2d 963, ¶ 28, citing Black’s Law Dictionary (7th

Ed.Rev.1999) 371; MJW Enterprises, Inc. v. Laing, 2d Dist. Montgomery No. 21253,

2006-Ohio-4011, ¶ 17.      In the Lehman/Ryan deed, the restrictive covenant stated that “the

roadway (including the bridge) * * * shall be maintained, repaired, and replaced, if

necessary, by Grantees so long as they are the owners of Parcel 1,” with an additional

provision for sharing those costs with additional “dwelling houses,” if any, subsequently

located on Parcel 1.     The Ryans claim that the obligation to maintain the bridge contained

in the deed, was “superceded” by the Declaration of the Lane Association, a claim which

the other members of the Lane Association dispute.             The trial court did not err in

considering the language of the restrictive covenant in the deed in attempting to determine

what effect, if any, the Declaration had on the restrictive covenant expressed in the deed; the

restrictive covenant in the deed did not prohibit the owner of the property from entering into

a contractual agreement with other residents of the lane for the maintenance of the bridge,

the preservation of the private nature of the neighborhood, etc..., and thus was not

dispositive, in itself, of the Lane Association’s claim.

       {¶ 26}    As the trial court observed, the deed explicitly provided for the

maintenance of the bridge, but the Declaration did not specifically mention the bridge. The

court stated that the Declaration also “d[id] not contain express, or even implied, language

that * * * it [was] controlling over the deeds of all the properties affected by the Declaration
                                                                                           13

in the event of a discrepancy,” although the Declaration does require that the deeds of the

affected properties “shall incorporate reference” to the Declaration.

       {¶ 27}    The court concluded that, “[w]ithout any express, or implied, language of

which document controls in the event of a discrepancy in language, the Court turns to the

intent of the parties when signing the Declaration.”        It then discussed the deposition

testimony of two Lane Association members that the intention had been for the lane to end at

the front of the bridge, that previous owners of the Ryan property took responsibility for the

bridge, and that there was no history of homeowners along the lane paying for bridge repairs

or maintenance. Based on this evidence, the court found that it was “clear” that the Lane

Association was not obligated to maintain, repair, or replace the bridge.

       {¶ 28}    As the trial court discussed, the restrictive covenant in the Ryans’ deed was

explicit with respect to maintenance of the bridge; the Lane Association’s Declaration was

not.   The Declaration did not specifically mention the bridge; it defined the lane as

extending “to the land owned by” the Ryans’ predecessors in interest, the Lehmans, and

referenced an attached exhibit. The exhibit was composed of a hand-drawn map of the

“vicinity” and copies of the language of three easements contained in the deeds of other Lane

Association properties (not the Lehman/Ryan deed). The Declaration also contained the

following statement: “The real property subject to these Declarations is described on Exhibit

‘A’ attached hereto, which description is not necessarily complete, but which reflects

generally the known metes and bounds as taken from existing instruments of record.” The

Declaration seems both to adopt these descriptions and to disclaim them (as “not necessarily

complete”).
[Cite as Washington Twp. Bd. of Trustees v. Ryan, 2013-Ohio-4072.]
        {¶ 29}    The court considered parole evidence as to the boundaries intended by the

Lane Association Declaration. Floyd Koller, one of the residents of the lane, testified by

deposition and affidavit (executed in 1998) that he had been charged by the residents of the

lane with measuring “the distance of road surface to be maintained from Mad River Road to

the front of the bridge” leading to the homes occupied at the time by the predecessors in

interest of the Ryans and Solganik. He stated that he “did not cross the bridge and did not

include it in making this measurement,” which was then used to calculate what each resident

would pay “to clean and maintain” the lane. He also stated that he measured the distance to

the center of each driveway, and the documents he presented established that the Ryans,

Solganik, and their predecessors in interest had paid identical amounts, as measured to the

front of the bridge.

        {¶ 30}    The Ryans presented an affidavit from a surveyor, who had been hired to

examine the easements attached to the Declaration and to determine whether the bridge was

part of the private lane described in the Declaration. The surveyor described the lane as

“comprised of three (3) road easements over private property,” as reflected in the attached

easements, and he attached a map to his affidavit. He concluded that the lane ended at

“Point A” (as indicated on the map), which was well past the bridge, where the lane

“completely abuts” the Ryans’ property, and that the Ryans’ property line was in the middle

of the bridge at “Point C.” Based on the surveyor’s opinion as to the location of their

property line in the middle of the bridge, the Ryans argued that they could not have been

included in the Lane Association if the lane did not extend beyond the front of the bridge.

        {¶ 31} The evidence presented can be summarized as follows: In support of its

motion for summary judgment, the Lane Association presented evidence that the Declaration
                                                                                             15

defined the lane as extending to the Ryan property, that the fees to be paid by each property

were calculated by measuring the lane from Mad River Road to the front of the bridge, and

that certain of the owners of the properties in front of the bridge had long understood that the

bridge was not included in the agreement to maintain the lane and had never paid to maintain

the bridge. This evidence satisfied the Lane Association’s initial burden of demonstrating

that there was no genuine issue of material fact. In response, the Ryans presented an

affidavit of a surveyor, who had examined the easements attached and incorporated by

reference to the Declaration; the surveyor’s affidavit stated that the lane described in the

easements continued beyond the bridge and that the Ryans’ property line was in the middle

of the bridge. This evidence rebutted the Lane Association’s assertion that there was no

genuine issue of material fact.

       {¶ 32}    In reaching its conclusion that the Lane Association was not responsible for

the maintenance of the bridge, the court recognized that it made both “legal and factual

findings.” Summary judgment is appropriate, however, only when there is “no genuine

issue as to any material fact.” A trial court is not permitted to weigh the facts and make

factual determinations in deciding a motion for summary judgment, where there is

conflicting evidence as to those facts. “* * * [A] trial court must adhere to Civ.R. 56(C)

and view the record in the light most favorable to the party opposing the motion. Kunkler v.

Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138, 522 N.E.2d 477, 480. Even

the inferences to be drawn from the underlying facts contained in the affidavits and

depositions must be construed in the nonmoving party’s favor. Hounshell v. Am. States Ins.

Co. (1981), 67 Ohio St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 315.” Turner v.
                                                                                            16

Turner, 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993).        The trial court erred in making

factual findings as to the intent of the parties at the summary judgment stage of these

proceedings.

         {¶ 33}   Moreover, the trial court’s ruling on Solganik’s motion for summary

judgment appears to be incorrect or incomplete. The court overruled Solganik’s motion for

summary judgment “to the extent that the Lane Association is required to pay for the

certification and the cost of the bridge.” However, Solganik had filed neither a claim nor a

motion for summary judgment against the Lane Association. One section of Solganik’s

summary judgment motion does argue that she was entitled to “an entry of summary

judgment in [her] favor” on the Lane Association’s obligation to pay for the maintenance of

the bridge, but the trial court could not grant such relief where no claim against the Lane

Association had been made by Solganik. Her claims were against the Ryans, and her

motion for summary judgment sought summary judgment against the Ryans on their various

claims against her (breach of contract, breach of fiduciary duty, intentional infliction of

emotional distress, intentional interference with use and enjoyment of property, conversion,

and negligence). The trial court properly granted summary judgment in favor of Solganik

on these claims. Solganik did not seek summary judgment on her breach of contract claim

against the Ryans, and the trial court did not resolve this claim. Thus, Solganik’s claims for

damages against the Ryans for failure to contribute to the repair and maintenance of the

bridge and for diminution in the value of her property have not yet been addressed in the trial

court.

         {¶ 34}   The Ryans’ first assignment of error is sustained.
[Cite as Washington Twp. Bd. of Trustees v. Ryan, 2013-Ohio-4072.]
        {¶ 35}    The Ryans’ second assignment of error states:

        THE      TRIAL     COURT        ERRED       IN    GRANTING   WASHINGTON

        TOWNSHIP’S MOTION FOR SUMMARY JUDGMENT AS THERE IS

        AMPLE EVIDENCE THAT IT IS IMPOSSIBLE FOR JIM AND CONNIE

        RYAN TO COMPLETE THE REQUIRED REPAIRS.

        {¶ 36}    The Ryans contend that they have been unable to comply with the

Township’s zoning regulations because of their inability to safely access their property.

They argue that the Township should not be allowed to require them (the Ryans) to access

their property via the uncertified bridge in order to bring the property into compliance with

the zoning regulations, when the Township will not allow its own personnel to access the

property in that manner. The Township responds that the Ryans waived their argument

challenging the zoning violations by failing to exhaust their administrative remedies.

        {¶ 37}    The Township attached copies of the many notices of the Ryans’ zoning

violations to its motion for summary judgment, as well as its notice that the Ryans were in

violation of the Township Nuisance Abatement Resolution; this latter notice informed the

Ryans of their right to appeal. There is no indication in the record that the Ryans pursued

an administrative appeal of these violations.

        {¶ 38}    The Township raises the argument for the first time in this appeal that the

Ryans waived their right to challenge the zoning violations, because they failed to exhaust

their administrative remedies. Although there is no indication of an administrative appeal

in the record before us, the record does not address this aspect of the procedural history

directly, and there is no mention of this issue in the Township’s motion for summary

judgment or the trial court’s decision. Accordingly, we will not address the issue of waiver
                                                                                           18

at this time.

        {¶ 39}      The Ryans argue that it was “impossible” for them to comply with the

Township’s zoning resolutions. Impossibility is not a defense to the existence of a zoning

violation; it is an affirmative defense to a charge of contempt.         Goddard-Ebersole v.

Ebersole, 2d Dist. Montgomery No. 23493, 2009-Ohio-6581, ¶ 15, citing Neff v. Neff, 2d

Dist. Montgomery No. 11058, 1989 WL 13531, * 2 (Feb. 13, 1989); Porter v. Porter, 2d

Dist. Montgomery No. 19146, 2002 WL 1396034, * 3 (June 28, 2002). The Ryans have not

been cited in contempt. If such a charge is filed in the future because the Ryans do not

comply with the court’s order enjoining them from maintaining a nuisance on their property,

they may raise the affirmative defense of impossibility at that time. Whether such a defense

will succeed will largely depend on the facts developed at such a contempt hearing.

        {¶ 40}      The second assignment of error is overruled.

        {¶ 41}      The judgment of the trial court in favor of the Lane Association on the

Ryans’ breach of contract claim is reversed and remanded for further proceedings. The trial

court’s purported judgment against Solganik and in favor of the Lane Association is also

reversed, as no claim existed between these parties.         The trial court failed to address

Solganik’s claims for contribution and diminution of value against the Ryans, and it must do

so on remand. Summary judgment on the Ryans’ claims for breach of fiduciary duty,

intentional infliction of emotional distress, intentional interference with use and enjoyment

of property, conversion, and negligence is affirmed. The judgment in favor of the Township

is also affirmed.

                                           ..........
                                                                                        19

FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Joshua R. Schierloh
David C. Greer
Kirstie N. Young
James K. Hemenway
Robert S. Fischer
David Eidelberg
Dean and Carrie Hines
Hon. Dennis J. Adkins

Case Name:            Board of Trustees of Washington Township, et al. v. James E. Ryan, et
                      al.
Case No.:             Montgomery App. No. 25561
Panel:        Fain, Froelich, Welbaum
Author:               Jeffrey E. Froelich
Summary:
