[Cite as D & L Ferguson LLC vs. Thompson, 2018-Ohio-2473.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
D & L FERGUSON LLC JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs-
MICHAEL THOMPSON, As Trustee of Case No. 2017 CA 00194 the MICHAEL W. THOMPSON LIVING TRUST, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2017 CV 00563
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Montrose
LISA K. FERGUSON JOSEPH T. DATTILO 110 Main Street 600 Superior East, Suite 1600 Wintersville, Ohio 43953 Cleveland, Ohio 44114
For Defendant-Appellant Thompson
CLAIR E. DICKINSON IRVING B. SUGERMAN CHRISTOPHER T. TEODOSIO BROUSE MCDOWELL LPA 388 South Main Street, Suite 500 Akron, Ohio 44311 Stark County, Case No. 2017 CA 00194 2
Wise, P. J.
{¶1} Defendants-Appellants Michael Thompson, as Trustee of the Michael W.
Thompson Living Trust, and Stars of Cleveland, Inc., dba Montrose Ford Lincoln, appeal
the September 25, 2017 judgment entry of the Stark County Court of Common Pleas,
which found enforceable a deed restriction affecting a parcel of commercial property in
Alliance, Ohio, owned by Appellant Thompson. Plaintiff-Appellee is D & L Ferguson LLC,
the owner of an adjoining mall property. The relevant facts leading to this appeal are as
follows.
{¶2} The focus of the present dispute is a 1.0-acre parcel of real property, owned
by the Michael W. Thompson Living Trust, located at 2490 West State Street (also known
as Route 62) in Alliance, Ohio. This parcel (hereinafter the “Thompson” property) fronts
a busy commercial strip leading to Mount Union University and downtown Alliance. Said
parcel also adjoins a larger parcel at 2500 West State Street, better known as the
Carnation Mall, an indoor retail facility, and the parking lot for the mall. The mall itself sits
back somewhat from West State, with a McDonald’s restaurant, a Tractor Supply store,
and a Kay Jewelers store sharing the street frontage alongside the Thompson property.
Historical Background - 2500 West State Street
{¶3} Prior to 1981, Midland Service Corporation (“Midland”) owned both the
Thompson property (2490 West State) and the larger “mall” property upon which
Carnation Mall now stands (2500 West State).1 In April 1983, R.G. Sproul and
Associates, in the name of the Alliance Mall Company, exercised an option to purchase
1 The record indicates Midland Service Corporation was at that time an affiliate of Midland Buckeye Federal Savings and Loan Bank. See Tr. at 194. Stark County, Case No. 2017 CA 00194 3
some of the properties in the present area of the mall. Midland maintained a repurchase
option concerning what is now the Thompson property, as further detailed infra.
{¶4} On December 26, 1990, the Alliance Mall Company conveyed the mall
property, 2500 West State Street, to AllOhio Holding, Inc.
{¶5} On February 28, 2001, AllOhio Holding, Inc. conveyed 2500 West State
Street to Carnation Mall, LLC.
{¶6} On April 17, 2008, Carnation Mall, LLC conveyed 2500 West State Street
to Appellee D & L Ferguson, LLC by quit claim deed. It is thus undisputed that as to the
present property issues, Appellee D & L Ferguson is the successor of the Alliance Mall
Company.
Historical Background - 2490 West State Street
{¶7} In the meantime, in September 1983, the Alliance Mall Company conveyed
2490 West State Street back to Midland Service Corporation by general warranty deed.
The deed contains the following restrictive covenant:
In accepting this conveyance and as part of the consideration
therefor, the Grantee, its successors and assigns, covenants with the
Grantor [the Alliance Mall Company], its successors and assigns, that it will
not use the above described premises for any purpose other than a saving
and loan branch office and that said branch office structure shall not exceed
750 square feet. This covenant shall run with the land herein conveyed and
shall be binding on the Grantee, its successors and assigns, unless this
covenant is subsequently modified in writing by the Grantor, its successors
and assigns. Stark County, Case No. 2017 CA 00194 4
{¶8} Thus, the deed restriction purports to prohibit use of property at 2490 West
State Street, for anything other than as a branch office of a savings and loan institution.
{¶9} As indicated previously, the property at 2490 West State abuts the parking
lot for Carnation Mall. There is presently a one-story building, styled as a bank branch
facility, approximately 750 square feet in size on the property.
{¶10} At some point after the above September 1983 conveyance, Midland
Service Corporation conveyed the Thompson property to Midland Buckeye Federal
Savings and Loan Bank, which later became Sky Bank. Although the exact time frames
have faded, these entities used the Thompson property as a savings and loan branch.
Sky Bank was thereafter purchased by Huntington National Bank.
{¶11} In June 2000, Huntington National Bank leased the property to the Alliance
Area Development Foundation, a non-profit organization that promotes the economic
development of Alliance. Said foundation is not a savings and loan institution. It appears
undisputed that there was never a written modification to the aforementioned restrictive
covenant to allow the foundation to operate at the property.
{¶12} In November 2013, Appellant Thompson, as trustee, purchased the
Thompson property from Huntington National Bank.
Prior Litigation
{¶13} On August 11, 2014, Stars of Cleveland, Inc., seeking to utilize the
Thompson property for a retail truck lot, filed a complaint in the Stark County Court of
Common Pleas for tortious interference of business relationships, slander of title, and
injunctive relief. The trial court subsequently dismissed some of the claims for tortious
interference with business relationships and the claim for slander of title. Stark County, Case No. 2017 CA 00194 5
{¶14} On March 30, 2015, Stars of Cleveland filed a first amended complaint to
add a claim for declaratory judgment. Stars of Cleveland included in this claim a request
for the trial court to determine the enforceability of the restrictive covenant, i.e., a
declaration that the restrictive covenant did not prevent it from operating a car dealership
on the property because D & L had waived the restrictive covenant.
{¶15} Stars of Cleveland and D & L thereafter filed motions for summary judgment
on the claim for declaratory judgment. Stars of Cleveland dismissed without prejudice its
claim for tortious interference with a business relationship.
{¶16} On September 30, 2015, the trial court issued its decision granting summary
judgment in favor of D & L, essentially determining that the restrictive covenant was
enforceable against Stars of Cleveland.
{¶17} Stars of Cleveland then appealed. See Stars of Cleveland, Inc. v. D & L
Ferguson, L.L.C., 5th Dist. Stark No. 2015CA00190, 2016-Ohio-4625. On June 13, 2016,
in a 2 – 1 decision, this Court reversed the grant of summary judgment and remanded
the matter to the trial court for further proceedings. Id. at ¶ 46.
{¶18} However, Stars of Cleveland and Thompson (plaintiffs in that instance)
thereafter voluntarily dismissed their action.
Present Appeal
{¶19} On March 15, 2017, Appellee D & L Ferguson LLC, dba Carnation City Mall,
filed a civil complaint in the Stark County Court of Common Pleas against Michael
Thompson, as Trustee of the Michael W. Thompson Living Trust, and Stars of Cleveland
Inc., dba Montrose Ford Lincoln. The complaint included claims of breach of contract,
unjust enrichment, slander of title, trespass, tortious interference with business Stark County, Case No. 2017 CA 00194 6
relationships, and tortious interference with contract. Appellee therein sought monetary
damages and injunctive relief
{¶20} On March 30, 2017, appellee filed an amended complaint, adding a claim
seeking enforcement of the 1983 deed restriction.
{¶21} The matter proceeded to a bench trial on June 26, 2017, with the trial court
combining a hearing on the preliminary injunction with the trial on the merits. Prior to
commencement, appellee dismissed all of its claims except enforcement of the deed
restriction and its request for injunctive relief regarding use of the Thompson property.
{¶22} Via a twelve-page judgment entry issued on September 25, 2017, the court
granted judgment on the first amended complaint in favor of appellee and against
appellants. Specifically, the court concluded that “*** the deed restriction at issue is
enforceable against [appellants] and [appellants] are, hereby, enjoined from using the
[Thompson] property in any manner inconsistent therewith.” Judgment Entry at 12.
{¶23} On October 12, 2017, appellants filed a notice of appeal. They herein raise
the following seven Assignments of Error:
{¶24} “I. THE TRIAL COURT INCORRECTLY REWROTE THE RESTRICTIVE
COVENANT BY DETERMINING THAT THE PHRASE ‘SAVINGS AND LOAN BRANCH
OFFICE’ AS USED IN IT MEANS ‘ANY BANKING INSTITUTION BRANCH OFFICE.’
{¶25} “II. TO THE EXTENT THE TRIAL COURT HELD THAT THE DEED
RESTRICTION IS VALID AND ENFORCEABLE DESPITE NOT BEING PART OF A
‘BUILDING PLAN OR SCHEME,’ IT ERRED AS A MATTER OF LAW.
{¶26} “III. TO THE EXTENT THE TRIAL COURT FOUND THAT THE DEED
RESTRICTION WAS PART OF A GENERAL LAND USE PLAN OR SCHEME, THAT Stark County, Case No. 2017 CA 00194 7
FINDING IS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND MUST BE
REVERSED.
{¶27} “IV. THE TRIAL COURT'S DETERMINATION THAT THE ALLIANCE
FOUNDATION'S USE OF THE THOMPSON PROPERTY WAS CONSISTENT WITH
THE RESTRICTIVE COVENANT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE
AND MUST BE REVERSED.
{¶28} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
CONCLUDE THAT THE DEED RESTRICTION IS OUTMODED BECAUSE OF THE
CHANGE IN THE SAVINGS AND LOAN BUSINESS AND, THEREFORE, IS
UNENFORCEABLE.
{¶29} “VI. THE TRIAL COURT'S ENFORCEMENT OF THE DEED
RESTRICTION PROVIDES D & L UNFETTERED DISCRETION OVER HOW THE
TRUST MAY USE THE THOMPSON PROPERTY AND, ACCORDINGLY, IS
INCORRECT AS A MATTER OF LAW.
{¶30} “VII. THE INJUNCTION ENTERED BY THE TRIAL COURT IS INVALID
BECAUSE IT DOES NOT DESCRIBE IN REASONABLE DETAIL THE ACT OR ACTS
TO BE RESTRAINED.”
Law of the Case
{¶31} As an initial matter, we must consider the effect of our previous decision on
our present analysis. The law of the case doctrine provides a decision of a reviewing
court in a case remains the law of the case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels. U.S. Bank v.
Detweiler, 5th Dist. Stark No. 2011CA00095, 2012–Ohio–73, ¶ 26, citing Nolan v. Nolan Stark County, Case No. 2017 CA 00194 8
(1984), 11 Ohio St.3d 1, 462 N.E.2d 410. However, the law of the case doctrine “posits
that when a court decides upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” GMAC Mtge., LLC v. McKeever,
651 Fed.Appx. 332, 339 (6th Cir.2016), citing Arizona v. California, 460 U.S. 605, 618,
103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (emphasis added). In this instance, our previous
ruling remanded the matter to the trial court to consider substantial value and waiver.
Therefore, we find reliance on the law of the case doctrine of little utility in this appeal.
I.
{¶32} In their First Assignment of Error, appellants contend the trial court
committed reversible error in interpreting the phrase ‘savings and loan branch office’ as
used in the deed restriction as meaning any banking institution branch office. We
disagree.
{¶33} Ohio law does not favor restrictions on the use of property. Polaris Owners
Assn., Inc. v. Solomon Oil Co., 5th Dist. Delaware No. 14CAE110075, 50 N.E.3d 983,
2015–Ohio–4948, ¶ 51, quoting Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 276,
328 N.E.2d 395 (1975). Restrictions are not to be extended or created by conjecture or
implication, nor are restrictions to be inferred from doubtful language. Ritzenthaler v.
Pepas, 107 Ohio App. 385, 389, 159 N.E.2d 472, 475 (6th Dist.1958).
{¶34} Construction of a deed restriction is a matter of law and, as such, is
reviewed by an appellate court under a de novo standard of review. Corna v. Szabo, 6th
Dist. No. OT-05-025, 2006-Ohio-2764, ¶ 37. In construing the language of a deed
restriction, a court's goal is to ascertain the intention of the parties as reflected by the
language used in the restriction. Stoneridge Farms Association v. Fuller, 6th Dist. Lucas Stark County, Case No. 2017 CA 00194 9
No. L-06-1103, 2007-Ohio-1191, ¶8, citing Hitz v. Flower (1922), 104 Ohio St. 47, 57;
Brooks v. Orshoski (1998), 129 Ohio App.3d 386, 390. The court must interpret the
language of the restriction by giving it its common and ordinary meaning. Orshoski,
supra, at 390-391.
{¶35} The judgment entry under appeal includes the following determination: “The
Court finds that absurdity would result in reading the restriction as only applicable to
‘Savings and Loan’ branch offices as opposed to any other banking institution given that
the only difference between a ‘Savings and Loan’ and any other bank is the nature of
governmental regulation and that ‘Savings and Loan,’ accordingly [sic] to Stephen Hiler
[sic], a witness presented by the defendants, is a ‘term of art.’ "
{¶36} Judgment Entry at 10.
{¶37} Appellants essentially posit that the trial court improperly expanded, even
“rewrote,” the savings and loan language to mean any type of banking institution as a
means of “saving” the deed restriction, even though standard commercial banking would
have been prohibited on the property at the time the deed was drafted. However, we
have frequently recognized that an appellant, in order to secure reversal of a judgment,
must generally show that a recited error was prejudicial to him or her. See Tate v. Tate,
5th Dist. Richland No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing Ames v. All American
Truck & Trailer Service, 6th Dist. Lucas No. L–89–295, 1991 WL 16509.
{¶38} We note that where the language of a deed restriction is unambiguous, the
court must enforce the restriction as written. Corna, supra, at ¶ 38. Under the
circumstances presented in the case sub judice, had the trial court determined instead
that the “savings and loan” restriction was unambiguous and left it alone, presumably it Stark County, Case No. 2017 CA 00194 10
would have enforced it as is, subject to its subsequent consideration of the issue of
waiver or abandonment. In essence, because appellants have expressed no intention of
using the Thompson property for anything other than automobile or truck sales, the trial
court’s partially-expanded reading of the phrase “savings and loan” has not impacted
their legal position in this case. As such, we find appellant has failed to demonstrate
prejudicial error on this point.
{¶39} Appellants’ First Assignment of Error is therefore overruled.
II.
{¶40} In their Second Assignment of Error, appellants contend the trial court erred
in enforcing the deed restriction despite it not being part of a “building plan or scheme.”
We disagree.
{¶41} The disfavor in Ohio towards efforts to restrict land use can be overcome
by evidence establishing a general land use plan or scheme as well as notice to the land
purchaser of such a general plan or scheme. Bailey Dev. Corp. v. MacKinnon–Parker,
Inc., 60 Ohio App.2d 307, 397 N.E.2d 405 (6th Dist.1977), paragraph one of the syllabus.
Where an owner of land has adopted a general building scheme or plan for the
development of a tract of property, designed to make it more attractive for residential
purposes by reason of certain restrictive agreements to be imposed upon each of the
separate lots sold, embodying the same in each deed, such agreements will generally
be upheld provided the same are not against public policy. Polaris Owners Assn., Inc. v.
Solomon Oil Co., supra, ¶ 52, quoting Dixon v. Van Sweringen Co., 121 Ohio St. 56, 166
N.E. 887 (1929), paragraph one of syllabus. However, unlike the situation sub judice,
this issue is often discussed in the context of tract developments or housing subdivisions. Stark County, Case No. 2017 CA 00194 11
See, e.g., Heldman Terrace Property Owners Association v. D.J.T., Inc., 6th Dist. Lucas
No. L-00-1330, 2001 WL 574944, citing Prestwick Landowners' Association v. Underhill
(1980), 69 Ohio App.2d 45, 49 and Bailey, supra, at 310.
{¶42} “In Ohio, restrictive covenants become unenforceable when there has been
a waiver or abandonment of the restrictions.” Santora v. Schalabba, 8th Dist. Cuyahoga
No. 80291, 2002-Ohio-2756, ¶ 10, citing Romig v. Modest, 102 Ohio App. 225, 142
N.E.2d 555 (2nd Dist.1956). As further discussed infra, the test often used to overcome
waiver is whether there is still a “substantial value” in the restriction which ought to be
protected. However, as we have previously recognized, “[t]he substantial value of a
restrictive covenant can be supported through evidence of a building plan or scheme.”
Stars of Cleveland, supra, at ¶ 33 (emphasis added). In other words, a “building plan or
scheme” analysis is just one path toward resolving the question of “substantial value”
and, potentially, a finding of lack of waiver or abandonment of a deed restriction.
{¶43} We thus reject appellants’ implication in the present case that appellee was
required to demonstrate the existence of a building plan or scheme in order for the trial
court to enforce the deed restriction.
{¶44} Appellants’ Second Assignment of Error is therefore overruled.
III.
{¶45} In their Third Assignment of Error, appellants challenge the trial court's
limited findings concerning a general land use plan or scheme as unsupported by
sufficient evidence.
{¶46} Appellants urge that appellee failed to present any evidence that at the time
of the creation of the deed restriction, there existed a general plan or scheme to protect Stark County, Case No. 2017 CA 00194 12
the mall’s “visibility” to potential customers, taking exception to the following conclusions
of the trial court:
In this case, the Court finds that visibility of the Mall from State Street
is, and, based upon the size restriction contained in the deed restriction,
always has been a concern of its owners. Because of this concern, there is
no ‘building plan or scheme’ for the development of the mall, other than to
take measures to increase its visibility from State Street, such as the
installation of an LED sign and the removal of trees.
{¶47} Judgment Entry at 10.
{¶48} We reiterate that an appellant, in order to secure reversal of a judgment,
must generally show that a recited error was prejudicial. See Tate v. Tate, 5th Dist.
Richland No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing Ames v. All American Truck &
Trailer Service, 6th Dist. Lucas No. L–89–295, 1991 WL 16509. Based on our analysis
under appellants’ Second Assignment of Error, we find no prejudicial error warranting
reversal on this point.
{¶49} Accordingly, appellants’ Third Assignment of Error is overruled.
IV.
{¶50} In their Fourth Assignment of Error, appellants contend the trial court’s
determination that the Alliance Foundation's use of the Thompson property was
consistent with the restrictive covenant, and that waiver of the deed restriction had not
occurred, was not supported by sufficient evidence. We disagree.
{¶51} Generally, as an appellate court, we are not the trier of fact. Our role is to
determine whether there is relevant, competent, and credible evidence upon which the Stark County, Case No. 2017 CA 00194 13
fact finder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d
768, 2010–Ohio–3489, 936 N.E.2d 1013 (5th Dist.), ¶ 16, citing Cross Truck Equipment
Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA–5758, 1982 WL 2911. “In a civil
case, in which the burden of persuasion is only by a preponderance of the evidence,
rather than beyond a reasonable doubt, evidence must still exist on each element
(sufficiency) and the evidence on each element must satisfy the burden of persuasion
(weight).” Tate v. Tate, 5th Dist. Holmes No. 17CA004, 2018-Ohio-1244, ¶ 101, citing
Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 19. Our
standard of reviewing the sufficiency of the evidence in a civil case is whether, after
viewing the evidence in a light most favorable to the prevailing party, the judgment is
supported by competent and credible evidence. Moran v. Gaskella, 5th Knox No. 2011–
CA–21, 2012–Ohio–1158, ¶ 12, citing Technical Constructions v. Cooper, 8th Dist.
Cuyahoga No. 96021, 2011–Ohio–5252, ¶ 14.
{¶52} This Court has previously held that when there has been a general
acquiescence in the violation of the restriction, the restriction is rendered unenforceable.
Emerald Estates Homeowners Assn., Inc. v. Albert, 5th Dist. Stark No. 2009CA00072,
2009-Ohio-6627, ¶ 32, citing Colonial Estates Home Owners Association, Inc. v. Burkey,
5th Dist. Tuscarawas No. 97AP020013, 1997 WL 34724487. However, as a
counterbalance to this rule, we have recognized that the test in Ohio on the question of
whether a restriction has been waived or abandoned is whether in spite of the violations,
there is still a substantial value worth protecting by enforcing the restrictions. See
Trautwein v. Runyon, 5th Dist. Delaware No. 94-CA-E-11-032, 1995 WL 498951. See,
also, Landen Farm Community Services v. Schube 78 Ohio App.3d 231, 235 (12th Stark County, Case No. 2017 CA 00194 14
Dist.1992), citing Romig v. Modest, 102 Ohio App. 225, 230 (2nd Dist.1956). A party
alleging a waiver and/or abandonment has the burden of proving his or her allegations.
Id. at paragraph four of the syllabus.
{¶53} In reaching its conclusions on the issue of “substantial value” in the case
sub judice, the trial court first reviewed the early history of the subject deed restriction,
noting that in 1981, the Carnation Mall property was owned by Midland Service
Corporation. Judgment Entry at 8. The court noted that at that time, Midland had entered
into an option agreement with R.G. Sproul and Associates, providing Midland the right
to purchase a 1.0-acre parcel of land (now the Thompson property) for $50,000.00
should Sproul exercise an option to purchase the mall property. Id. The option agreement
further allowed Midland, upon obtaining the 1.0-acre parcel, to construct a savings and
loan branch office of maximum size 750 square feet on the parcel, with any other use
subject to the written permission of Sproul. Id. Midland also reserved the right to lease
space inside the mall, with the option agreement further providing that if Midland so
exercised its right to lease space in the mall, Sproul would not sell or lease any other
parcel to another savings and loan entity during Midland’s mall tenancy. Id. The trial court
thus observed: “When Midland Service Corporation opted to construct its offices on the
outer parcel as opposed to leasing space in the mall, the deed restriction was created.”
Id.
{¶54} The trial court went on to determine as follows:
*** [T]his Court finds that the fact that the restriction regarding
building size and nature of the use of the property was put into the General
Warranty deed from the Mall to Midland Services Corporation after Midland Stark County, Case No. 2017 CA 00194 15
Services Corporation had elected to build on the outparcel as opposed to
leasing space within the mall demonstrates that the restriction was, in fact,
for the benefit of the Mall. The Court further finds that the restriction on
building size and nature of the use of the property manifests the Mall's
intention of allowing a banking, and, therefore, non-competitive, business
to operate on the property without obstructing the Mall's visibility from State
Street.
{¶55} Judgment Entry at 9, emphasis in original.
{¶56} Ultimately, the trial court concluded that “*** because the deed restriction
limits the size of any building that might be placed in front of the mall which would
interfere with its visibility from State Street, and because it limits the nature of operation
of that building to that of a banking institution which would not compete with the retail
nature of the Mall, the Court finds that the deed restriction at issue is of ‘substantial value’
to the Mall.” Id. at 11.
{¶57} A review of the trial record reveals that Lisa Poole, the manager and
marketing director of the Carnation Mall from 2008 to 2014, recalled that visibility and
accessibility of the mall facility was an ongoing concern for her. Tr. at 28. The visibility
and accessibility factors, for example, drove her decision to erect a large LED sign at the
main entrance to the mall. Tr. at 29. She stated that between 20,000 and 29,000 cars
would pass by on West State Street daily. Id. Andrea Foley, the present manager and
marketing director of the mall, compared visibility with “product placement” for a retailer,
noting mall tenants never say they “don’t want visibility.” Tr. at 64. Foley also expressed
concern about a truck lot being distracting to passersby. Tr. at 64-65. Derek Ferguson Stark County, Case No. 2017 CA 00194 16
recounted as an example the decision of Kay Jewelers to place its store on the street
frontage instead of inside the mall: “I bet you they’re paying ten times what we were
going to lease [the mall space] to them for inside, but they weren’t interested because
*** they didn’t have the visibility.” Tr. at 160. However, we also must recognize the
testimony of Joseph Mazzola, Alliance’s director of planning and development, called as
a witness by appellants, who opined: “Professionally, I thought [the proposed truck sales
business] could only help the mall.” Tr. at 116.
{¶58} Upon review, we find the trial court’s determination of “substantial value”
was supported by sufficient evidence, and the court’s utilization of that finding to
overcome the application of waiver of the deed restriction was not in error, despite the
Alliance Foundation not using the building for savings and loan or other banking
operations from 2000 to 2013.
{¶59} Appellants’ Fourth Assignment of Error is overruled.
V.
{¶60} In their Fifth Assignment of Error, appellants contend the trial court erred as
a matter of law by failing to conclude that the deed restriction is “outmoded” because of
the change in the savings and loan business, and is therefore unenforceable. We
{¶61} If a restrictive 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
(9th Dist.), ¶ 11, citing Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266 (1973),
paragraph two of the syllabus. Stark County, Case No. 2017 CA 00194 17
{¶62} In the case sub judice, appellants presented the testimony of banking expert
Stephen Hailer. He noted inter alia that there are only about nine savings and loans left
in Ohio, none of which has a branch in Alliance, and there are no new savings and loans
being created. Tr. at 261, 265-266. He added that those existing savings and loans that
do exist offer different services than the savings and loans that existed at the time the
restrictive covenant was drafted, including expansion into commercial lending and other
types of investments. Tr. at 265.
{¶63} However, as appellee points out at other points in its response brief,
appellants obtained a substantial discount in price on the land purchase due to the deed
restriction, which was clearly known to all the parties involved in the transaction. While
certain aspects of the banking industry have undergone great changes since the early
1980s, savings and loan institutions have not become extinct, and we cannot conclude
that the trial court erred as a matter of law in refusing to strike the deed restriction at
issue as outmoded.
{¶64} Appellants’ Fifth Assignment of Error is therefore overruled.
VI.
{¶65} In their Sixth Assignment of Error, appellants contend the trial court erred
as a matter of law by allegedly giving appellee “unfettered discretion” in controlling the
use of the property. We disagree.
{¶66} We have cautioned against deed restrictions too broad in scope allowing
too much control over property vested in the hands of someone other than the owner of
the property. See Wingate Farms Owners Assn. v. Sankarappa, 5th Dist. Delaware No.
11–CAE–05–0041, 2012–Ohio–14, ¶ 42. However, as noted in our recitation of facts, Stark County, Case No. 2017 CA 00194 18
the trial court in this instance enjoined appellants from using the property “in any manner
inconsistent” with the deed restriction. See Judgment Entry at 12.
{¶67} Appellants herein fail to persuade us that the ruling at issue placed unlawful
discretion in the hands of appellee concerning the use of the property.
{¶68} Appellants’ Sixth Assignment of Error is therefore overruled.
VII.
{¶69} In their Seventh Assignment of Error, appellants maintain the trial court’s
injunction entered is invalid because it does not describe in reasonable detail the act or
acts to be restrained. We disagree.
{¶70} The standard of review for the grant of injunctive relief is whether the trial
court abused its discretion. Control Data Corp. v. Controlling Bd. (1983), 16 Ohio App.3d
30, 35. The allowance of an injunction rests within the sound discretion of the trial court
and depends upon the facts and circumstances surrounding the case. Perkins v. Quaker
City (1956), 165 Ohio St. 120. The term abuse of discretion connotes more than an error
of law or judgment; it implies the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
{¶71} As noted previously, the trial court enjoined appellants “from using the
[Thompson] property in any manner inconsistent” with the deed restriction. Appellants,
relying on Civ.R. 65(D), urge that this language makes it “impossible” for an ordinary
person to determine what activities would result in a violation of the injunction, particularly
given the court’s ruling that general banking institution activities would be permissible on
the property. Stark County, Case No. 2017 CA 00194 19
{¶72} Upon review, we find no merit in appellants’ aforesaid assertions.
Appellants’ Seventh Assignment of Error is therefore overruled.
{¶73} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Hoffman, J., concur.
JWW/d 0606