[Cite as New California Woods Homeowners Assn. v. Jakse,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

NEW CALIFORNIA WOODS HOMEOWNERS ASSOCIATION, CASE NO. 14-21-04

PLAINTIFF-APPELLEE,

v.

JENNIFER A. JAKSE, ET AL.,

DEFENDANTS-APPELLEES, -and- OPINION

DOUGLAS J. VANBUREN, ET AL.,

DEFENDANTS-APPELLANTS.

Appeal from Union County Common Pleas Court Trial Court No. 2019-CV-0220

Judgment Affirmed

Date of Decision: October 25, 2021

APPEARANCES:

Douglas J. VanBuren, Appellant

Melissa M. VanBuren, Appellant

Anthony C. Will for Appellee, New California Woods Homeowners Association Case No. 14-21-04

WILLAMOWSKI, P.J.

{¶1} Defendants-appellants Douglas J. VanBuren and Melissa M. VanBuren

(collectively “the VanBurens”) appeal the judgment of the Union County Court of

Common Pleas, alleging that the trial court erred (1) by granting plaintiff-appellee

New California Woods Homeowners Association’s (“NCWHA”) motion for

summary judgment and (2) by granting the permanent injunction requested by the

NCWHA. For the reasons set forth below, the judgment of the trial court is

affirmed.

Facts and Procedural History

{¶2} In 1993, a Declaration (“Original Declaration”) establishing the New

California Woods Subdivision was recorded in the Union County Recorder’s Office.

Doc. 52, Ex. G. This Original Declaration contained the following use restriction:

No structure of a temporary character, trailer, mobile home, tent, shack, garage, barn or other outbuilding shall be used on the Property at any time as a residence, shall be used for storage purposes or for any other purpose.

Doc. 52, Ex. G. This Original Declaration stated that “[e]ach grantee of Declarant,

its successors or assigns, by the acceptance of a deed of conveyance accepts the

same subject to all restrictions, conditions, covenants * * * created * * * by this

Declaration * * *.” Doc. 52, Ex. G. Further, the Original Declaration stated that,

[u]pon filing of an amendment to this Declaration, thereby subjecting additional property to this plan for ownership of New California Woods, such additional property shall thereafter be subject to all the terms and provisions of this Declaration, to the

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same extent and with the same effect as if such additional property had been described herein * * *.

Doc. 52, Ex. G.

{¶3} Subsequently, several amendments to the Original Declaration were

recorded as the New California Woods Subdivision was developed. Doc. 52, Ex. J,

H. In 1998, a fourth amendment (“Phase IX Amendment”) to the Original

Declaration was recorded. Doc. 52, Ex. H. The property subject to this Phase IX

Amendment was subdivided into lots 105 to 116 of Phase IX of the New California

Woods Subdivision. Doc. 52, Ex. H. The Phase IX Amendment stated that “[t]he

purpose of this amendment is to submit the real property referred to herein” to the

Original Declaration. Doc. 52, Ex. H.

{¶4} In 2006, an Amended and Restated Declaration (“2006 Restated

Declaration”) was recorded because the “[d]eclarant desire[d] to amend and restate

the Original Declaration as described in this document to address certain issues

which have arisen since the recording of the Original Declaration[.]” Doc. 52, Ex.

D. This Restated Declaration contained the following use restriction: “No structure

of a temporary character, trailer, mobile home, shack, garage, barn or other

outbuilding shall be permitted on the Property at any time.” Doc. 52, Ex. D.

{¶5} In June of 2017, the VanBurens obtained title to Lot 108 in Phase IX of

the New California Woods Subdivision. Doc. 2, Ex. 4. Doc. 52, Ex. E. When the

VanBurens purchased this property, no shed was located on the premises. Melissa

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VanBuren Deposition, 6. Douglas VanBuren Deposition, 18. The VanBurens

indicated that this shed was installed in or around June of 2017. Doc. 37.

{¶6} On July 1, 2019, the NCWHA’s counsel sent a letter to the VanBurens

that stated a “shed/outbuilding” on their property violated the deed restrictions in

the Declaration for the New California Woods Subdivision. Doc. 17. See Doc. 52.

The letter requested removal of the outbuilding on their property by August 1, 2019.

Doc. 17. On August 11, 2019, the NCWHA notified the VanBurens that legal action

would ensue if the outbuilding was not removed. Doc. 17. The NCWHA requested

that the shed be removed by October 1, 2019. Doc. 51. However, the shed was not

removed. Doc. 2, 17.

{¶7} On December 2, 2019, the NCWHA filed a complaint against the

VanBurens.1 Doc. 2. This complaint alleged that the VanBurens had an outbuilding

on their property in violation of the use restrictions governing the property. Doc. 2.

The NCWHA requested a permanent injunction enjoining the Van Burens from

constructing additional outbuildings on their properties and an order that required

them to remove the temporary structure already existing on their lots. Doc. 2.

{¶8} On August 3, 2020, the NCWHA filed a motion for summary judgment.

Doc. 51, 52. On November 4, 2020, the trial court found that the VanBurens’

property was subject to the restriction that prohibited outbuildings. Doc. 70. The

1 This complaint named a number of other parties as defendants. Doc. 2. The complaint alleged that these other parties had outbuildings that violated the applicable use restriction against outbuildings. Doc. 2. However, this appeal only concerns the VanBurens. Doc. 2.

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trial court then granted the NCWHA’s motion for partial summary judgment and

issued the permanent injunction requested by the same. Doc. 70. The trial court

then set a hearing for damages. Doc. 70. On January 13, 2021, the trial court issued

a judgment entry that awarded the NCWHA $13,990.13 for costs and fees.2 Doc.

86.

{¶9} The VanBurens filed their notice of appeal on February 12, 2021. Doc.

91. On appeal, the VanBurens raise the following two assignments of error:

First Assignment of Error

The Trial Court errored [sic] in granting the Motion for Summary Judgment and the award of Permanent Injunction to Plaintiff in accordance with Civ.R. 56(C).

Second Assignment of Error

The Trial Court errored [sic] in granting the award of Permanent Injunction to Plaintiff as a matter of law.

First Assignment of Error

{¶10} The VanBurens allege that the use restriction prohibiting outbuildings

does not apply to their property and that, for this reason, the trial court erred in

granting summary judgment to the NCWHA.

2 While noting that the NCWHA is simply a registered fictitious name, we nonetheless make no determination regarding the validity of the judgment in its favor.

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Legal Standard

{¶11} Appellate courts consider a summary judgment order under a de novo

standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock

No. 5-16-20,

. Under the Ohio Rules of Civil Procedure,

[s]ummary 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 of material fact and that the moving party is entitled to judgment as a matter of law * * *. 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.

Civ.R. 56(C). “The party moving for summary judgment has the initial burden ‘to

inform the trial court of the basis for the motion, identifying the portions of the

record, including the pleadings and discovery, which demonstrate the absence of a

genuine issue of material fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-

47,

, quoting Reinbolt v. Gloor,

,

(3d Dist. 2001).

{¶12} “The burden then shifts to the party opposing the summary judgment.”

Bates Recycling, Inc. v. Conaway,

,

(3d Dist.),

quoting

. “In order to defeat summary judgment, the nonmoving

party may not rely on mere denials but ‘must set forth specific facts showing that

there is a genuine issue for trial.’” Byrd v. Smith,

, 2006-Ohio- -6- Case No. 14-21-04

3455,

, ¶ 10, quoting Civ.R. 56(E). “[B]ecause summary judgment

is a procedural device to terminate litigation, it must be awarded with caution.”

Williams v. ALPLA, Inc.,

,

(3d Dist.), quoting

Murphy v. Reynoldsburg,

,

(1992).

“The court must thus construe all evidence and resolve all doubts in favor of the

non-moving party * * *.” Webster v. Shaw,

,

, ¶ 8

(3d Dist.).

{¶13} “A ‘restrictive covenant’ is a ‘private agreement, usu[ally] in a deed

or lease, that restricts the use or occupancy of real property, esp[ecially] by

specifying lot sizes, building lines, architectural styles, and the uses to which the

property may be put.’” Canton v. State,

,

,

, ¶ 28, quoting Black’s Law Dictionary (7th Ed.Rev. 1999) 371.

“Restrictive covenants are often utilized to effect a general plan for a development.”

Dillingham v. Do, 12th Dist. Butler Nos. CA2002-01-004, CA2002-01-017, 2002-

Ohio-3349, ¶ 16. “An owner of land is free to adopt a general building plan for a

development, designed to make it more attractive for residential purposes.” Id. at ¶

10. “Restrictive covenants run with the land and bind subsequent purchasers * * *.”

Wells Fargo Bank, N.A. v. Michael,

,

, ¶ 29 (7th

Dist.).

{¶14} “Contract construction rules apply to the interpretation of the deed

restrictions.” Siltstone Resources, LLC v. Ohio Public Works Commission, 2019-

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Ohio-4916,

, ¶ 29 (7th Dist.). “Contracts are to be interpreted so as

to carry out the intent of the parties, as that intent is evidenced by the contractual

language.” Nationwide Mut. Fire Ins. Co. v. Pusser,

, 2020-

Ohio-2778,

. “Where the language in the restriction is clear, the

court must enforce the restriction. Otherwise, the court would be rewriting the

restriction.” Clark v. Osting, 3d Dist. Allen No. 1-03-17,

,

quoting Dean v. Nugent Canal Yacht Club, Inc.,

,

(6th Dist. 1990).

Legal Analysis

{¶15} The VanBurens raise four main issues in their appeal. We will

consider each of these issues in turn. First, the VanBurens argue that the use

restriction prohibiting outbuildings ceased to apply to their property when the

Restated Declaration was recorded to restate and amend the Original Declaration.

The Restated Declaration states the following:

WHEREAS, Declarant desires to amend and restate the Original Declaration as described in this document to address certain issues which have arisen since the recording of the Original Declaration; and

WHEREAS, Declarant desires to subject the property described in Exhibit B to those certain conditions, restrictions, easements, covenants, and assessments described below.

Doc. 52, Ex. D. The Restated Declaration then annexes Phases Six and Seven of

the New California Woods Subdivision. Doc. 52, Ex. D.

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{¶16} The VanBurens then point to an amendment (“2019 Amendment”) to

the Restated Declaration that was filed in 2019. Doc. 52, Ex. J. This 2019

Amendment states the following:

WHEREAS, on or around January 20, 2006 Declarant executed an Amended and Restated Declaration creating and establishing a plan of ownership of New California Woods thereby replacing the Original Declaration and all amendments made thereto * * *.

Doc. 52, Ex. J. Based on this language, the VanBurens assert that the restrictions

in the Restated Declaration only apply to Phases Six and Seven of the New

California Woods Subdivision because the Restated Declaration “replac[ed]” the

Original Declaration and the associated Phase IX Amendment. Doc. 52, Ex. J.

{¶17} However, in its own terms, the Restated Declaration was recorded to

“amend and restate the Original Declaration” in addition to annexing Phases Six and

Seven to the New California Woods Subdivision. Doc. 52, Ex. D. Thus, the

Restated Declaration did not release the areas already subject to the Original

Declaration from any and all use restrictions but restated and amended these existing

use restrictions. Practically, this simply means that property owners in this

subdivision are to look at the Restated Declaration rather than the Original

Declaration to determine their rights and obligations.

{¶18} Further, “the purpose” of these restrictions was to “enhance[e] and

protect[] the value, desirability and attractiveness of the Property.” Doc. 52, Ex. D.

The Restated Declaration was clearly intended to also impose restrictions on Phases

Six and Seven of the subdivision. In the content of the relevant recorded -9- Case No. 14-21-04

instruments, we see no reason why the builder would have used the Restated

Declaration to impose use restrictions on Phases Six and Seven of this subdivision

while, at the same time, lifting these use restrictions from the rest of the subdivision.

{¶19} Turning to the 2019 Amendment, the language of this recorded

instrument states that Restated Declaration “replac[ed]” the Original Declaration.

Doc. 52, Ex. J. However, in the recitals, the 2019 Amendment states its relevant

background, mentioning the Original Declaration, the six amendments made

thereto, and the Restated Declaration. Doc. 52, Ex. J. These recitals place the

Restated Declaration and the 2019 Amendment within the larger scheme of the New

California Woods Subdivision. The recitals in the 2019 Amendment contemplate

this subdivision as a whole and evince an intent to subject a new phase of this

development to the use restrictions that already prevailed in the existing subdivision.

There is no indication in these recorded instruments that the declarant intended for

portions of the New California Woods Subdivision to be subject to use restrictions

while other portions of this subdivision are exempt.

{¶20} Ultimately, the language identified by the VanBurens in the 2019

Amendment refers home owners in the New California Woods Subdivision to the

Restated Declaration rather than the Original Declaration as the controlling

instrument in determining their rights and obligations. Doc. 52, Ex. J. As we noted

above, the Restated Declaration amended and restated the Original Declaration,

thereby becoming the primary controlling instrument for the New California Woods

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Subdivision. Doc. 52, Ex. D, G. There is no indication that the Restated Declaration

or the 2019 Amendment was recorded with the intention of releasing the properties

in Phase IX of the development from the use restrictions that govern the New

California Woods Subdivision.

{¶21} The recorded instruments that the NCWHA filed with the trial court

indicate that the VanBurens’ property is subject to the use restriction that prohibits

outbuildings. In response, the VanBurens have not demonstrated that a genuine

issue of material fact exists as to whether their property is subject to the use

restrictions as set forth in the Restated Declaration. For this reason, the arguments

raised in this first issue are without merit.

{¶22} Second, the VanBurens argue that the Original Declaration, the

Restated Declaration, and the Phase IX Amendment fail to comply with Ohio’s

Planned Community Law in two regards. Initially, the VanBurens assert that the

bylaws were not filed with the Phase IX Amendment. R.C. 5312.02 reads, in its

relevant part, as follows:

(A) Any planned community in this state is subject to this chapter. No person shall establish a planned community unless that person files and records a declaration and bylaws for that planned community in the office of the recorder of the county or counties in which the planned community is located.

(B) Any declaration for a planned community shall be accompanied by bylaws that provide for the operation of the planned community. * * *

R.C. 5312.02(A), (B). R.C. 5312.01(G) contains the following definition:

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‘Declaration’ means an instrument a property owner executes and records to declare that the property is a planned community subject to the provisions of this chapter.

R.C. 5312.01(G). In this case, the NCWHA filed certified copies of the Original

Declaration and the Restated Declaration that had been recorded in Union County.

Doc. 52, Ex. D, G. Both of these instruments were recorded with copies of the

bylaws. Doc. 52, Ex. D, G.3

{¶23} The Phase IX Amendment was an addition to the Original Declaration.

See Black’s Law Dictionary (11th Ed. 2019) (defining an amendment as “a formal

and usu[ally] minor revision or addition proposed or made to a[n] * * * instrument”).

This amendment merely brought additional property into an existing planned

community that had already been created by the Original Declaration. The Phase

IX Amendment contains the following language:

[T]he [Original] Declaration and all attachments thereto, including but being not limited to the By-Laws of the New California Woods Association, are hereby incorporated by reference as though fully rewritten herein. Doc. 52, Ex. H. This amendment expressly subjected the property in Phase IX of

the subdivision to the Original Declaration and bylaws that had already been filed

in the recorder’s office. Since the Original Declaration was recorded with the

bylaws, this argument does not establish noncompliance with R.C. 5312.02.

3 We note that R.C. 5312.02(A), (B) became effective on September 10, 2010. R.C. 5312.02. Both the Original Declaration and the Restated Declaration were filed before this provision became effective. Doc. 52, Ex. D, G. Nonetheless, both instruments are in compliance with R.C. 5312.02(A), (B).

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{¶24} Next, the VanBurens assert that no copy of the bylaws was recorded

180 days after the effective date of R.C. 5312.02 in violation of R.C. 5312.02(D)(1).

R.C. 5312.02(D)(1) reads as follows:

(D)(1) The board of directors of the owners association of any planned community that is in existence on the original effective date of this chapter shall file and record the bylaws of that planned community that are in effect on that effective date in the office of the recorder of the county or counties in which the planned community is located within one hundred eighty days after that effective date.

R.C. 5312.02(D)(1). The effective date of this provision was September 10, 2010.

R.C. 5312.02. Thus, R.C. 5312.02(D)(1) required existing homeowners

associations to have their bylaws recorded no later than 180 days after September

10, 2010. R.C. 5312.02(D)(1).

{¶25} In this case, since the bylaws had already been filed and recorded with

the Original Declaration and Restated Declaration, there was no need to refile and

re-record the bylaws within 180 days of September 10, 2010. Thus, the arguments

in this second issue do not establish noncompliance with R.C. 5312.02. See also

R.C. 5312.02(C) (stating that nothing in the Ohio Planned Community Law

“invalidates any provision of a document that governs a planned community” if that

provision was in the document and recorded prior to September 10, 2010).

{¶26} Third, the VanBurens challenge an affidavit from the NCWHA’s

expert witness, Tina Owens-Ruff (“Owens-Ruff”). In her affidavit, Owens-Ruff

listed a number of recorded documents that she had reviewed and concluded that

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the use restrictions that prohibited outbuildings applied to the VanBurens’ property.

Doc. 52, Ex. C. The VanBurens argue that this affidavit should be of no

consequence because there is no indication that Owens-Ruff examined the 2019

Amendment. The VanBurens assert that the 2019 Amendment is of significance

because it states that the Restated Declaration “replac[ed]” the Original Declaration.

Doc. 52, Ex. J.

{¶27} However, the NCWHA filed certified copies of the Original

Declaration, the Phase IX Amendment, the Restated Declaration, and the 2019

Amendment with the trial court. Doc. 52. For this reason, we were able to examine

these documents independently. After we reviewed the 2019 Amendment as part

of the first issue in this assignment of error, we concluded that it did not render the

use restriction against outbuildings inapplicable to the VanBurens’ property. Thus,

while Owens-Ruff may not have had the 2019 Amendment before her when she

concluded that the use restrictions applied to the VanBurens’ property, we did have

the 2019 Amendment before us and reached the same conclusion. As such, the

arguments presented under this third issue do not establish that the use restriction

that prohibits outbuildings is inapplicable to the VanBurens’ property.

{¶28} Fourth, the VanBurens allege that the plat maps for Phase IX of the

New California Woods Subdivision did not list the page numbers where additional

deed restrictions could be found. See DeRosa v. Parker,

,

,

(7th Dist.). This argument appears to be

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about whether the recorded instruments provided adequate notice of the relevant use

restrictions to property owners. To be bound by use restrictions on property, a

purchaser of land must have actual or constructive notice of those restrictions.

Emrick v. Multicon Builders, Inc.,

,

(1991)

(“[A] bona fide purchaser for value is bound by an encumbrance upon land * * * if

he has constructive or actual knowledge of the encumbrance.”).

{¶29} “Constructive notice is that which the law regards as sufficient to give

notice and is regarded as a substitute for actual notice.” Williams Creek

Homeowners Assn. v. Zweifel, 10th Dist. Franklin No. 07AP-689,

. If the restrictions are recorded in an instrument that is in a purchaser’s chain

of title, the purchaser is generally deemed to have constructive knowledge of those

restrictions. Saddlebrook Homeowners Assn., Inc. v. Dunfee, 10th Dist. Franklin

No. 90AP-1260,

, *2 (May 14, 1991). See Spring Lakes, Ltd. v.

O.F.M. Co.,

,

(1984); Kimberly Recreation Assn.

v. Butts, 10th Franklin No. 96APG09-1202,

, *3 (Apr. 10, 1997).

{¶30} In this case, if the plat maps had contained the relevant page numbers,

this “would certainly give additional express notice to a buyer of the deed

restrictions on the property * * *.”

. See also Columbia Gas Transm.

Corp. v. Bennett,

,

(2d Dist. 1990). However,

the fact that these blanks on the plat maps were not filled in does not mean that the

VanBurens did not have constructive notice of these use restrictions. The relevant

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use restrictions were contained in recorded instruments in the VanBurens’ chain of

title. Thus, notwithstanding these blanks on the plat map, a search of their chain of

title would uncover the fact that their property is subject to recorded instruments

that contain a use restriction that prohibits outbuildings on their property.

{¶31} We also note that, in addition to the relevant use restriction having

been stated in recorded instruments in the VanBurens’ chain of title, the VanBurens’

deed also stated that their property was “[s]ubject to conditions, restrictions and

easements, if any, contained in prior instruments of record.” Doc. 52, Ex. E. See

Smith v. Volk,

,

,

, (2d

Dist. 1948) (holding that constructive notice of restrictions existed where a deed

stated that it was “subject to all restrictions of record”). For these reasons, we

conclude that the arguments raised under the fourth issue in this assignment of error

are without merit.

{¶32} In conclusion, the NCWHA filed certified copies of the Original

Declaration, the Phase IX Amendment, the Restated Declaration, and the 2019

Amendment with the trial court. These recorded instruments indicate that the

VanBurens’ property is clearly subject to a use restriction that prohibits

outbuildings. In response, the VanBurens have not demonstrated that a genuine

issue of material fact exists for trial. As such, we conclude that the trial court did

not err in granting the NCWHA’s motion for summary judgment. The VanBurens’

first assignment of error is, therefore, overruled.

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Second Assignment of Error

{¶33} The VanBurens next allege that the NCWHA did not establish that the

use restriction prohibiting outbuildings applied to their property and that the trial

court, therefore, erred in granting the NCWHA a permanent injunction. However,

in our analysis of the first assignment of error, we concluded that the NCWHA did,

in fact, establish that the use restriction prohibiting outbuilding does apply to the

VanBurens’ property. As such, the argument raised by the VanBurens in their

second assignment of error has been decided by our disposition of their first

assignment of error. For this reason, their second assignment of error is overruled.

Conclusion

{¶34} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Union County Court of Common Pleas is

affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/hls

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