[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]


                                      COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CUMBERLAND TRAIL                                     :      JUDGES:
HOMEOWNERS’
ASSOCIATION, INC.                                    :
                                                     :      Hon. Patricia A. Delaney, P.J.
                    Plaintiff-Appellant              :      Hon. William B. Hoffman, J.
                                                     :      Hon. Julie A. Edwards, J.
-vs-                                                 :
                                                     :      Case No. 11-CA-72
RONALD S. KINIETZ, et al.                            :
                                                     :
                                                     :
                    Defendants-Appellees             :      OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Licking County Court of
                                                         Common Pleas, Case No. 10 CV 01540


JUDGMENT:                                                AFFIRMED


DATE OF JUDGMENT ENTRY:                                  June 25, 2012

APPEARANCES:
For Appellant:                                              For Appellee:

ELIZABETH J. WATTERS                                        RAYMOND DELEVIE
65 E. State St., Suite 1000                                 2770 East Main St., Suite 24
Columbus, OH 43215                                          Bexley, OH 43209

Dennis Love                                                 Aegis Lending Corporation
20 South Second St.                                         10049 N. Rieger Road
P.O. Box 830                                                Baton Rouge, LA 70809
Newark, OH 43058-0830
                                                            J.P Morgan Chase
                                                            1111 Polaris Parkway
                                                            Columbus, OH 43240
[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]


Delaney, J.

        {¶1} Plaintiff-appellant Cumberland Trail Homeowners’ Association, Inc.

(“HOA”) appeals from the June 20, 2011 judgment entry of the Licking County Court of

Common Pleas granting defendant-appellees’ motion for summary judgment.

Defendant-appellees are Ronald and Kristy Kinietz.1

                             FACTS AND PROCEDURAL HISTORY

        {¶2} This case arose when HOA filed suit against appellees for $945.95 in

unpaid homeowners’ association dues, interest, costs, and attorney’s fees.

        {¶3} In 1998, developer Columbia Road Ltd. recorded “Cumberland Trail,

Section I, Declaration of Covenants, Conditions, and Restrictions.” This document set

forth 25 restrictions regarding construction and maintenance of residential homes in

the Cumberland Trails subdivision. These covenants did not create a homeowners’

association or levy assessments against homeowners.

        {¶4} Article II of the 1998 Declaration includes the following provision:

                (A) TERM: These covenants are to run with the Lots and shall be

                binding on all owners of the above-described real estate until

                January 1, 2037, after which time said covenants shall be

                automatically extended for successive periods of ten (10) years,

                unless an instrument signed by a majority of the Lot Owners is

                recorded, agreeing to change said covenants in whole or in part.

                Notwithstanding        anything      to   the    contrary        contained   herein,   the

                covenants, conditions and restrictions established herein may, at any


1
 JP Morgan Chase, Aegis Lending Corporation, and the Licking County Treasurer are parties
to the case in the trial court but are not parties in this appeal.
Licking County, Case No. 11-CA-72                                                     3


              time, be amended, modified or replaced in whole or in part by the

              Declarant without the further consent or execution of any documents by

              any person or entity, including any person or entity who is at such time a

              Lot Owner, for so long as the Lots owned by Declarant constitute more

              than ten percent (10%) of the aggregate Lots located within the

              subdivision, including any additional property hereafter added to the

              Subdivision pursuant to the application of Article IV herein. (Emphasis

              added.)

       {¶5} Columbia Road recorded a Second Supplemental Declaration in 2000.

This Declaration subjected Lot No. 143, e.g., to the 1998 Declaration.           Again,

Columbia Road did not create a homeowners’ association.

       {¶6} Appellees purchased Lot No. 143 on January 7, 2001, and at the time of

the purchase, no homeowners’ association existed.

       {¶7}    In 2005, Columbia Road went into foreclosure and ultimately

transferred its remaining property to First Merit Bank.

       {¶8} In June 2007, HOA filed articles of incorporation with the Secretary of

State, and shortly thereafter, by vote of a majority of the lot owners, recorded an

Amendment to the Declaration. The Amendment purported to create a homeowners’

association and to vest in it rights and duties reserved by Columbia Road in the

original Declaration.

       {¶9} In September 2009, HOA advised appellees they owed $380 in unpaid

homeowners’ association dues, interest, costs, and attorney fees.
Licking County, Case No. 11-CA-72                                                              4


       {¶10} On June 4, 2010, HOA filed a complaint against appellees for $945.95 in

homeowners’ association fees, dues, attorney fees, interest, and costs.

       {¶11} Appellees answered and counterclaimed for slander of title against HOA.

       {¶12} On November 23, 2010, HOA filed an amended complaint in foreclosure

against appellees and included defendants JP Morgan Chase Bank, NA, Aegis

Lending Corporation, and the Licking County Treasurer.              Appellees answered and

renewed their counterclaim for slander of title.

       {¶13} On December 28, 2010, appellees moved for partial summary judgment

against HOA on the basis that the 1998 Declaration and its 2000 Second

Supplemental Declaration provide no legal basis to require mandatory membership in

a homeowners’ association or to force residents to pay dues. HOA responded and

also moved for summary judgment against appellees.

       {¶14} The trial court initially ruled on February 24, 2011, that it denied HOA’s

motion for summary judgment, granted appellees’ motion for summary judgment, and

dismissed HOA’s claims against appellees.2

       {¶15} HOA asked the trial court to reconsider its judgment entry, specifically, to

comply with Civ.R. 54(B). The trial court granted this request and issued an amended

judgment entry on June 20, 2011.

       {¶16} HOA now appeals from the decision of the trial court granting appellees’

motion for summary judgment.3

       {¶17} Appellant raises two Assignments of Error:


2
  Appellees’ complaint for slander of title remained pending.
3
  Appellees initially filed a cross-appeal from the trial court’s decision granting the motion to
reconsider, but then moved to dismiss the cross-appeal. We granted the motion to dismiss on
October 17, 2011.
Licking County, Case No. 11-CA-72                                                     5


      {¶18} “I.    THE TRIAL COURT ERRED IN ENTERING ITS AMENDED

JUDGMENT ENTRY AND GRANTING SUMMARY JUDGMENT AGAINST THE

PLAINTIFF-APPELLANT        BECAUSE       THE       TRIAL   COURT    ERRED      IN   ITS

INTERPRETATION OF THE 1998 DECLARATION OF COVENANTS, CONDITIONS,

AND    RESTRICTIONS         OF    CUMBERLAND           TRAIL,    INSTRUMENT         NO.

199810130038908, WHICH WAS RECORDED WITH THE LICKING COUNTY

RECORDER’S OFFICE (‘DECLARATION’).”

      {¶19} “II. THE TRIAL COURT ERRED IN ITS AMENDED JUDGMENT ENTRY

AND GRANTING SUMMARY JUDGMENT AGAINST THE PLAINTIFF-APPELLANT

BECAUSE THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE

AMENDMENT         TO   DECLARATION        OF       COVENANT,     CONDITIONS,        AND

RESTRICTIONS FOR CUMBERLAND TRAIL SUBDIVISION SECTIONS 1, 2, 3, 4, 4

(PART 2) AND 5, INSTRUMENT NUMBER 200709050023500, FILED WITH THE

LICKING   COUNTY       RECORDER’S       OFFICE       (‘AMENDMENT’),     AND    IN   ITS

APPLICATION OF THE AMENDMENT TO PLAINTIFF-APPELLANT CUMBERLAND

TRAIL HOMEOWNERS ASSOCIATION.”

                                         I., II.

      {¶20} Appellant argues in its two assignments of error the trial court incorrectly

interpreted the 1998 Declaration and its Amendment.         We disagree and overrule

appellant’s two assignments of error on the principle of stare decisis, upon the

authority of Cumberland Trail Homeowners Assn., Inc. v. Bush, 5th Dist. No. 11 CA

40, 2011-Ohio-6041, appeal not allowed, 131 Ohio App.3d 1485, 2012-Ohio-1143,
Licking County, Case No. 11-CA-72                                                      6


963 N.E.2d 825. The two assignments of error are related and will be considered

together.

      {¶21} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

      Civ.R. 56(C) provides that before summary judgment may be granted, it must

      be determined that (1) no genuine issue as to any material fact remains to be

      litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)

      it appears from the evidence that reasonable minds can come to but one

      conclusion, and viewing such evidence most strongly in favor of the nonmoving

      party, that conclusion is adverse to the party against whom the motion for

      summary judgment is made. State ex rel. Parsons v. Fleming, 68 Ohio St.3d

      509, 511, 628 N.E.2d 1377 (1994), citing Temple v. Wean United, Inc. 50 Ohio

      St.2d 317, 327, 364 N.E.2d 267 (1977).

As an appellate court reviewing summary judgment motions, we must stand in the

shoes of the trial court and review summary judgment motions on the same standard

and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35,

36, 56 N.E.2d 212 (1987).

      {¶22} Appellant argues the trial court misapplied the “last antecedent rule of

grammar” in its interpretation of Article II, Section A of the 1998 Declaration. We

disagree.

      {¶23} Restrictive covenants in deeds are generally interpreted by those rules

used to interpret contracts. McBride v. Behrman, 28 Ohio Misc. 47, 50, 272 N.E.2d
Licking County, Case No. 11-CA-72                                                            7


181 (1971).     In the case of contracts, deeds, or other written instruments, the

construction of the writing is a matter of law which is reviewed de novo. See, Martin v.

Lake Mohawk Property Owner’s Ass’n., 5th Dist. No. 04 CA 815, 2005-Ohio-7062, ¶

23, citing Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208

(1998). Under a de novo review, an appellate court may interpret the language of the

contract substituting its interpretation for that of the trial court. Witte v. Protek Ltd., 5th

Dist. No. 2009CA00230, 2010-Ohio-1193, ¶ 6, citing Children’s Medical Center v.

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

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

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

general rule, with respect to construing agreements restricting the use of real estate, is

that such agreements are strictly construed against limitations upon such use, and

that all doubts should be resolved against a possible construction thereof which would

increase the restriction upon the use of such real estate.” Bove v. Geibel, 169 Ohio

St.3d 125, 159 N.E.2d 425 (1959), paragraph one of the syllabus. Furthermore, “[i]f

the covenant’s language is indefinite, doubtful, and capable of contradictory

interpretations, the court must construe the covenant in favor of the free use of land.”

Farrell v. Deuble, 175 Ohio App.3d 646, 2008-Ohio-1124, 888 N.E.2d 514, ¶ 11, citing

Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266 (1973), paragraph two of the

syllabus.

       {¶25} As noted supra, we previously have been asked to interpret the

operation of the 1998 Declaration and Amendment, and have no basis to deviate from

our rationale in that case. Cumberland Trail Homeowners Assn., Inc. v. Bush, 5th
Licking County, Case No. 11-CA-72                                                     8


Dist. No. 11 CA 40, 2011-Ohio-6041, appeal not allowed, 131 Ohio App.3d 1485,

2012-Ohio-1143, 963 N.E.2d 825 [“Bush”].

      {¶26} In Bush, we focused on the language cited supra from Article II, Section

A, and found:

      The primary question before us is whether or not the above phrase beginning

      with “unless” expresses an intention by the drafters that any changes to the

      covenants are permitted only “after which time,” i.e., January 1, 2037.

      Appellant directs us to the “last-antecedent rule” of contract interpretation,

      which states that referential and qualifying words and phrases, where no

      contrary intention appears, refer solely to the last antecedent. See Wohl v.

      Swinney, 118 Ohio St.3d 277, 279, 2008-Ohio-2334, 888 N.E.2d 1062.

      Upon review, we hold Article II(A), when strictly construed and subjected to the

      last-antecedent rule, does not permit owner-initiated changes to the 1998

      restrictive covenants pertaining to the Cumberland Subdivision prior to the

      January 1, 2037 limitation stated therein. Accordingly, the trial court erred as a

      matter of law in applying the homeowners association restrictions and fees to

      appellants.

      Id., 2011-Ohio-6041 at ¶ 16.

We agree, therefore, with the trial court, which applied the last-antecedent rule by

stating: “By this rule of construction, the phrase ‘unless an instrument signed by a

majority of the Lot Owners is recorded, agreeing to change said covenants in whole or

in part’ refers to the automatic ten-year extension of the covenants. It would not allow
Licking County, Case No. 11-CA-72                                                    9


for modification of the covenants by the lot owners prior to 2037.”      We, too, find

nothing in the Declaration that negates this rule of construction.

       {¶27} Moreover, as both the trial court and the concurring writer in Bush noted,

no basis exists to permit HOA to require membership in a homeowners’ association,

along with its obligations to pay dues and fees. We are unwilling to find any covenant

or restriction where nothing in the Declaration evidences intent to create one. See,

Bush, supra, 2011-Ohio-6041 at ¶ 20.

       {¶28} For the reasons stated in the foregoing opinion, appellants’ two

assignments of error are overruled and the judgment of the Licking County Court of

Common Pleas is affirmed.

By: Delaney, P.J.

And Edwards, J. concur.

Hoffman, J. concurs separately




                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JULIE A. EDWARDS




PAD:kgb
Licking County, Case No. 11-CA-72                                               10

Hoffman, J., concurring
      {¶29} I concur for the same reasons set forth in my concurrence in Cumberland

Trail Homeowners Assn., Inc. v. Bush, 5th Dist. No. 11 CA 40, 2011-Ohio-6041.




                                              _______________________________
                                              HON. WILLIAM B. HOFFMAN
[Cite as Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 2012-Ohio-2906.]


              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT

CUMBERLAND TRAIL                                     :
HOMEOWNERS’                                          :
ASSOCIATION, INC.                                    :

                     Plaintiff-Appellant             :
                                                     :
-vs-                                                 :    JUDGMENT ENTRY
                                                     :
RONALD S. KINIETZ, et al.                            :
                                                     :
                                                     :    Case No. 11-CA-72
                    Defendants-Appellees             :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                                 HON. PATRICIA A. DELANEY



                                                 HON. WILLIAM B. HOFFMAN



                                                 HON. JULIE A. EDWARDS
