[Cite as Morgan Woods Homeowners' Assn. v. Wills ,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MORGAN WOODS HOMEOWNERS' ASSOCIATION

Plaintiff-Appellee

-vs-

DAVID B. WILLS and SHARON J. WILLS

Defendants-Appellants

JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

Case No. 11 CA 57

OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 07 CV 01043

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 23, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellants

W. PRENTICE SNOW JAMES R. COOPER MORROW & ERHARD CO., LPA MORROW, GORDON & BYRD 10 West Locust Street 33 West Main Street Post Office Box 487 Post Office Box 4190 Newark, Ohio 43058-0487 Newark, Ohio 43058-4190 Wise, J.

{¶1} Appellants David B. Wills and Sharon J. Wills appeal from a May 16,

2011, decision of the Licking County Common Pleas Court finding in favor of Appellee

Morgan Woods Homeowners’ Association.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts of this case are as follows:

{¶3} Appellants David B. Wills and Sharon J. Wills purchased property located

at 896 Howell Drive, Newark, Licking County, Ohio, in June, 2004. (T. at 135). The

property is located in Morgan Woods, a platted subdivision, which is subject to certain

covenants, easements and restrictions of record filed with the Licking County

Recorder's Office on September 20, 2000. ("Morgan Woods Restrictions").

{¶4} Article IV of the Morgan Woods Restrictions establishes an Architectural

Control Committee ("ACC"). The Morgan Woods Restrictions, as set forth in subsection

1(b) require the ACC to “establish, maintain, and preserve design standards” for all

improvements in the Morgan Woods subdivision. Subsection 1(c) further provides that

the ACC “shall, from time to time, establish architectural, building, and environmental

standards for all improvements in Morgan Woods.” Subsection 1(d) states that the

decisions of the ACC regarding conformity to the design standards and restrictions

contained in the Covenants “shall be conclusive and binding on all parties.” No

procedural requirements as to the adoption of design standards are contained in the

Covenants.

{¶5} Section 2(a) of Article IV of the Covenants provides that no improvements

visible from the exterior shall be made without the express written consent of the ACC. {¶6} Section 2(b) of Article IV states, in pertinent part, as follows:

{¶7} “Approval shall be based, among other things, upon conformity and

harmony of the proposed plans with the Design Standards, the restrictions contained

herein, and other structures in Morgan Woods; the effect of erection and use of

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

to the purpose and intent of the provisions hereof.”

{¶8} The ACC was formed sometime in 2004. At the outset, the developer of

Morgan Woods, Mid-Ohio Development Corporation, performed the functions of the

ACC. (T. at 21). Then at the first annual meeting of the Morgan Woods Homeowners’

Association in May, 2005, trustees were elected and those trustees assumed the duties

of the ACC.

{¶9} Article V, Section 2(o), of the Morgan Woods Restrictions sets forth the

process for the construction of a fence on property located in the subdivision. This

Section states that "no fence, wall, or barrier of any kind may be erected, except as

initially instituted by Declarant, or approved by the Architectural Control Committee, or

required by law."

{¶10} If a property owner submits a proposal to the ACC, the ACC must approve

or disapprove the submission within fourteen (14) days. If the ACC does not issue a

decision within the time frame specified, then Section 2(c) states, "it shall be

conclusively presumed that the Architectural Control Committee has approved those

plans and specifications." ld. {¶11} On September 9, 2006, Appellants submitted a proposal to the ACC for

the construction of a fence to enclose the backyard of their property. The proposal

contained detailed plans, specifications and an attached drawing.

{¶12} By letter dated September 15, 2006, the ACC advised Appellants that it

had received the proposal on September 9, 2006. In the letter, the ACC rejected the

proposed use of chain link and wire fencing and requested further information about the

fence proposal and stated that the following criteria applied to the construction of a

fence on Howell Drive:

{¶13} “Item bb of the Building Standards for Howell Drive states the following:

{¶14} “The fence height must be between 24 and 48 inches.

{¶15} “No fence can be installed outside of any building setback line. Therefore,

the side fences must be installed at least 15 feet inside both lot lines. Any fence in front

of the house must be at least 35 feet from the road.

{¶16} “No fence can have chain link or wire components."

{¶17} The ACC attached a document to the letter entitled "Protective Covenants

and Building Requirements," which included the above "Item bb."

{¶18} The letter also reiterated that “written approval by the Architectural

Committee must be granted before the fence can be installed.”

{¶19} On September 26, 2006, the ACC members met with Appellants at their

home to discuss the proposed fence. Appellants failed to accept any changes to their

fence proposal. As a result, the ACC again stated its opposition to the fence plan. (T.

at 29-30). {¶20} On September 27, 2006, Appellants sent a letter to the ACC, arguing that

their proposed fence design met the standards established in 2000 and that it was their

intention to proceed with installation of the fence as proposed.

{¶21} Appellants next sent a letter to the ACC on October 4, 2006, informing the

ACC that they had spoken with Frank Murphy, one of the owners of Mid-Ohio, and that

he advised them that the design standards referenced in the ACC’s September 15,

2006, letter had been changed in 2003.

{¶22} The 2003 changes referred to by Murphy were created on October 31,

2003, and set forth certain design standards for construction. These standards were set

forth in the "Morgan Woods Subdivision: Design Standards" and created criteria for the

construction of roofs, siding materials, garage doors, basketball backstops, and other

items. The 2003 standards do not set forth any criteria for the construction of fences. (T.

at 33).

{¶23} By correspondence dated October 9, 2006, the ACC sent a letter

reiterating that any fence must be approved by the ACC prior to installation. The letter

included the standards adopted by the ACC on October 6, 2006, affirming the 2000

fence design standards. (T. at 35-39).

{¶24} By letter dated October 11, 2006, Appellants contacted John Reid, an

architect previously involved in decisions by the Homeowners’ Association, claiming that

Frank Murphy had advised them to contact him concerning their design plans and

whether such conformed to the guidelines established on October 31, 2003. {¶25} On November 16, 2006, Mr. Reid sent a letter to Appellants “approving”

the fence and design plans “contingent upon the fence being installed within the building

side yard setback lines (15 feet both sides).”

{¶26} Appellants subsequently entered into a contract with Newark Fence

Company and on or about November 21, 2006, proceeded to install the fence as

proposed. (T. at 155, 167-168). The fence was chain-link and was not installed 15 feet

from the side boundary lines. (T. at 175).

{¶27} On November 24, 2006, the ACC sent a letter to Appellants advising that

the ACC believed the fence construction violated the Morgan Woods Restrictions. The

ACC stated that Appellants had not received the requisite approval. In addition, the

ACC had adopted the guidelines set forth in its October 9, 2006, letter. These guidelines

were adopted on October 6, 2006, and the ACC contended that the fence construction

did not comport with those specifications as retroactively applied to the date of

application.

{¶28} Plaintiff-Appellee Morgan Woods Homeowners' Association ("Appellee")

filed a Complaint on July 13, 2007, in the Licking County Common Pleas Court against

Defendants-Appellants David B. Wills and Sharon J. Wills ("Appellants") which alleged

that Appellants had violated the Morgan Woods Restrictions by constructing a fence

without the approval of the Architectural Control Committee ("ACC").

{¶29} In its complaint, Appellee requested an order directing Appellants to

remove the fence, an injunction to prevent Appellants from erecting any fence on the

property that had not been "expressly approved," for damages, and attorney fees. {¶30} Appellants, by answer and counterclaim, contended that there were no

properly established guidelines for the approval or disapproval of a request for the

construction of a fence and that they did not have notice of the requirements which

Appellee sought to enforce. In addition, Appellants alleged that their plans for the fence

had been approved by Appellee's architect as well as by Appellee since Appellee did

not respond to Appellants' plan within the time period prescribed by the Morgan Woods

Restrictions.

{¶31} Appellants sought by counterclaim a declaratory judgment that Appellee

acted unreasonably, arbitrarily, and contrary to law in its interpretation and enforcement

of the restrictive covenants; that Appellants' plans and specifications were approved in

accordance with the terms of the covenants; that the covenants did not require that

fences in the subdivision be constructed within any setbacks; and that there were no

design standards or other standards that reasonably provided notice to Appellants in

accordance with the general land use plan for the subdivision.

{¶32} On August 6, 2008, this matter proceeded to trial before the Magistrate of

the Licking County Common Pleas Court on August 6, 2008.

{¶33} The Magistrate's Decision was filed October 4, 2010, and found in favor of

Appellee.

{¶34} On May 6, 2011, Appellants filed objections to the Magistrate's Decision.

{¶35} By judgment entry filed May 16, 2011, the Common Pleas Court of Licking

County, Ohio, overruled Appellants' objections and adopted the Magistrate's Decision

with modifications.

{¶36} Appellants now appeal, assigning the following errors for review: ASSIGNMENTS OF ERROR

{¶37} "I. THE TRIAL COURT COMMITTED ERROR IN ITS DECISION AND

JUDGMENT THAT APPELLANTS CONSTRUCTED A FENCE IN VIOLATION OF THE

MORGAN WOODS COVENANTS AND RESTRICTIONS.

{¶38} “II. THE TRIAL COURT COMMITTED ERROR IN AWARDING

ATTORNEY FEES AND COSTS TO APPELLEES."

I.

{¶39} Appellants claim the trial court erred in finding that Appellants’ fence

violated the covenants and restrictions of Morgan Woods. We disagree.

{¶40} Appellants argue that no applicable design standards for fence

construction existed when they submitted their plan for approval, that Mr. Reid’s

correspondence was not given sufficient weight and further that the ACC failed to

disapprove their plan within the requisite fourteen (14) day period as set forth in the

Covenants.

{¶41} In civil cases, if some competent, credible evidence supports all the

essential elements of the case, a reviewing court will not reverse the judgment as being

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr.

Co. (1978),

,

. In determining whether a civil

judgment is against the manifest weight of the evidence, a presumption that the findings

of the trial court are correct guides an appellate court. Seasons Coal Co. v.

Cleveland (1984),

,

. “The underlying rationale of

giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and

voice inflections, and use these observations in weighing the credibility of the proffered

testimony.”

This Court may not substitute our judgment for that of the trier of fact.

Pons v. Ohio State Medical Board (1993),

,

.

{¶42} The Supreme Court of Ohio has consistently held that “[w]here the

language contained in a deed restriction is indefinite, doubtful and capable of

contradictory interpretation, that construction must be adopted which least restricts the

free use of the land.” Houk v. Ross (1973),

,

, paragraph two of the syllabus, overruled on other grounds by Marshall v.

Aaron (1984),

, 15 OBR 145,

. “Where the language in

the restriction is clear, the court must enforce the restriction. Otherwise, the court would

be rewriting the restriction. * * * The key issue is to determine the intent of the parties as

reflected by the language used in the restriction.” Dean v. Nugent Canal Yacht Club,

Inc. (1990),

,

. Where the lot owner

has notice of such a restriction and it is properly part of a general plan or scheme, the

restriction is enforceable. Haller v. Hickory Creek Homeowners Assn. (Dec. 14, 2001),

1st Dist. No. C-010332.

{¶43} Here, while Appellants attempt to make much of 2003 changes to the

design standards, we find such to be immaterial in that Article IV, Subsection 2(c) states

that the ACC shall “from time to time establish architectural building and environmental

standards for all improvements” in Morgan Woods. The records shows that the ACC

adopted the original 2000 design standards in its correspondence of July 25, 2006,

September 15, 2006, and again on October 6, 2006. Further, it is uncontested that none of the parties involved herein were aware of the 2003 changes, believing that the

2000 standards were still in effect and unchanged.

{¶44} Furthermore, the Covenants, as set forth above, specifically state that no

improvements visible from the exterior shall be made without the express written

consent of the ACC, including “walls, fencing, and screening”.

{¶45} Here, the ACC expressly rejected Appellants design plans on more than

one occasion. Appellants knew they did not have approval to go forward with the

erection of the fence and chose to proceed anyway.

{¶46} Appellants further argue that the ACC’s denial of their plan was arbitrary,

claiming that multiple other fences had been erected in Morgan Woods and that based

on these fences, Appellants were unable to discern a pattern or design upon which to

rely.

{¶47} A review of the record reveals that three other fences had been erected in

Morgan Woods including a railing along a driveway, a short decorative fences and a

short-length, picket fence along the back of a property which has since been removed.

(T. at 41-45). None of these fences were similar in nature to Appellants’ fence and

further, all had been erected without prior approval from the ACC.

{¶48} Appellants also argue that the ACC failed to respond within fourteen (14)

days to their request, claiming that the September 15, 2006, letter only directed

Appellants to inapplicable restriction guidelines but failed to address the application.

We find this argument unconvincing.

{¶49} Mr. Wills testified that he understood that the ACC and denied approval of

the fence proposal. Further, the ACC sent additional correspondence to Appellants concerning the fence and specifying further construction guidelines. Additionally,

Appellants’ September 27, 2006, correspondence to the ACC arguing that they believed

their plan conformed to the design standards is evidence that they were aware that they

had been denied approval to erect the fence herein.

{¶50} Even assuming arguendo that Appellants believed that Mr. Reid had

approved their fence plans and that such reliance was reasonable, Appellants still failed

to comply with the contingencies precedent as set forth in his correspondence.

{¶51} Based on the foregoing, we find that the trial court did not err in finding

that the restrictive covenants in this case were enforceable and that Appellants had

violated same.

{¶52} Assignment of Error I is denied.

II.

{¶53} In their second assignment of error, Appellants argue that the trial court

erred in awarding attorney fees in this matter. We disagree.

{¶54} Ohio has long adhered to the “American rule” with respect to recovery

of attorney fees: a prevailing party in a civil action may not recover attorney fees as a

part of the costs of litigation in the absence of a statute or enforceable contract.

Fleischmann Distilling Corp. v. Maier Brewing Co.(1967),

,

,

. In general, “the costs and expenses of litigation * * * are not

recoverable in actions for damages, and ordinarily no attorney fees are allowed.” Weisel

v. Laskovski, 5th Dist. No. 2004CA00175,

. See also Wilborn v. Bank

One Corp.,

,

. {¶55} Pursuant to Ohio law, contractual provisions awarding attorney fees are

enforceable and not void as against public policy so long as the fees awarded are fair,

just, and reasonable as determined by the trial court upon full consideration of all the

circumstances of the case. See Nottingdale Homeowners' Assn., Inc. v. Darby (1987),

,

; Gaul v. Olympia Fitness Ctr. (1993),

,

.

{¶56} In

the Court stated in the syllabus:

{¶57} “Provisions contained within a declaration of condominium ownership

and/or condominium by-laws requiring that a defaulting unit owner be responsible for

the payment of attorney fees incurred by the unit owners' association in either a

collection action or a foreclosure action against the defaulting unit owner for unpaid

common assessments are enforceable and not void as against public policy so long as

the fees awarded are fair, just and reasonable * * *.”

{¶58} Upon review, we find that the Covenants in this case allow for recovery of

expenses, including legal fees, for enforcement and correction of violations of the

covenants and restrictions.

{¶59} Article X, Section 1(c) provides for assessments for all costs of

enforcements of any provision of the Covenants, “including, without limitation, all costs,

expenses and legal fees.”

{¶60} Further, Article XIV, captioned “Enforcement”, Section 2, titled “Abatement

and Suit”, provides in “the event that any violation or breach of any restriction contained

herein is not remedied by the lot owner within thirty (30) days of being notified of such

violation or breach, the homeowners’ association … shall have the right to enter the lot involved and correct the violation at the expense of the owner or owners of the lot

involved, the cost of which (including administrative charges and attorneys’ fees) may

be assessed and collected as a special individual lot assessment as provided in Article

X hereof. The homeowners’ association … and all lot owners shall also have the right

to enforce these restrictions by legal and/or equitable action and to cause any violation

to be removed, by injunction or otherwise, and to collect damages, if any. All remedies

provided herein shall be cumulative, and not exclusive.”

{¶61} In Ashwood Homeowners' Assn. v. Reitor, 12th Dist. No. CA2003-06-142,

2004–Ohio–3536, the plaintiff, Ashwood Homeowners' Association, commenced a

declaratory judgment action against the defendant, a resident and member of the

Association. The Association sought a declaratory judgment, pursuant to R.C.

§2721.03, that the defendant was in violation of provisions of the “Declaration of

Covenants, Conditions, Restrictions, and Reservations of Easements for Ashwood

Home Owners' Association”. The trial court in Ashwood granted summary judgment in

favor of the Association, finding that the defendant had violated a restrictive covenant

under the Homeowners' Declaration. The trial court also granted the Association's

motion for attorney fees. On appeal, the defendant argued that the trial court erred in

granting attorney fees to the Association on the basis that attorney fees are precluded

pursuant to R.C. §2721.16 because declaratory relief was sought. The Appellate Court

rejected the defendant's contention, holding that R.C. §2721.16 did not preclude the

award of attorney fees because the action involved the enforcement of restrictive

covenants (i.e., not a claim for declaratory relief), and thus the Association was entitled to recover attorney fees pursuant to Article VII, Section 7.4.4 of the Homeowners'

Declaration.

{¶62} As the attorney fees incurred by Appellee in this case were for the

purpose of enforcing the restrictive covenants of Morgan Woods, we find that the trial

court did not err in finding that Appellee was entitled to recover attorney fees.

{¶63} Appellants’ second assignment of error is overruled.

{¶64} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

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___________________________________

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JUDGES JWW/d 0109 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MORGAN WOODS HOMEOWNERS' : ASSOCIATION : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DAVID B. WILLS and SHARON J. WILLS : : Defendants-Appellants : Case No. 11 CA 57

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

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

Costs assessed to Appellants.

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JUDGES