Polaris Owners Assn., Inc. v. Solomon Oil Co.
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Opinion
[Cite as Polaris Owners Assn., Inc. v. Solomon Oil Co., 2015-Ohio-4948.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
POLARIS OWNERS ASSOCIATION, : JUDGES: INC. : : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14 CAE 11 0075 : SOLOMON OIL COMPANY, ET AL. : : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12 CVH 08 1015
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
DATE OF JUDGMENT ENTRY: November 23, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendants-Appellants:
KIMBERLY WEBER HERLIHY DENNIS L. PERGRAM CHRISTOPHER C. WAGER 50 North Sandusky St. 52 East Gay St. Delaware, OH 43015-1926 P.O. Box 1008 Columbus, OH 43216-1008 Delaware County, Case No. 14 CAE 11 0075 2
Delaney, J.
{¶1} Defendants-Appellants Solomon Oil Company and Solomon Realty
Company, LLC appeal the July 16, 2014 and November 7, 2014 judgment entries of the
Delaware County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
A. Creation of Polaris Centers of Commerce
{¶2} Polaris Centers of Commerce is a commercial business, retail shopping,
and restaurant area located along Interstate 77 in Delaware County, Ohio. It consists of
approximately 1,026 acres. In 1980, Bob Echele, the founder of Polaris Centers of
Commerce and the managing partner of N.P. Limited Partnership, developed a plan for
a high-end, mixed-use business park that would be the Polaris Centers of Commerce.
The current managing director of N.P. Limited Partnership is Franz Geiger. The
development plan was memorialized in the Declaration of Protective Covenants
adopted on August 20, 1992.
B. Declaration of Protective Covenants
{¶3} The Declaration of Protective Covenants contains design standards for
the businesses located within the Polaris Centers of Commerce territory. The owners of
businesses within the Polaris Centers of Commerce are bound by the terms of the
Declaration of Protective Covenants. Potential investors are provided with a copy of the
Declaration of Protective Covenants. In this case, there is no dispute that Defendants-
Appellants Solomon Oil Company and Solomon Realty Company, LLC are the owners
of a business located in the Polaris Centers of Commerce and are bound by the
Declaration of Protective Covenants. Delaware County, Case No. 14 CAE 11 0075 3
{¶4} The intent of the Declaration of Protective Covenants is:
in pursuance of a general plans for the protection, benefit and mutual
advantage of all the Real Property and of the Persons who are now and
may hereafter become Owners, * * *, the Declarant executes this
Declaration for the purpose of subjecting the Real Property to all and each
of the following restrictions, reservations, conditions, covenants,
easements, rights-of-way, charges, assessments, agreements,
obligations, rights, uses and provisions, all sometimes referred to herein
as "Protective Covenants", which are for the mutual benefit and protection
of, and shall be enforceable by, the Declarant, all and any of the present
and future Owners * * * of any real property.
1. Article One: Definitions of Terms
{¶5} Article One of the Declaration of Protective Covenants defines the terms
used in the document. Relevant to this appeal, Article One defines the following:
Section 8. "Building Site" means a parcel of real estate located within the
Polaris Centers of Commerce consisting of either a lot, portion of a lot,
contiguous lots, or portion of contiguous lots, as applicable, but does not
include Rights-of-Way, Common Property or Interchange Property.
Section 14. "Design Guidelines" means all of those guidelines and
standards prepared by the Developer and its representatives * * *, and
issued to the Design Review Committee describing and dictating the
general considerations which must be undertaken by the Owner * * * in
preparing and submitting an application for the construction of Delaware County, Case No. 14 CAE 11 0075 4
Improvements on or within any Building Site, which standards and
guidelines will be generally followed by the Design Review Committee in
reviewing and approving or disapproving any such application. The
Design Standards generally describe and incorporate specific
requirements for Building Site maintenance, tree preservation, irrigation,
landscaping, set back requirements, lot splits, general architecture,
treatment of mechanical equipment, Service Areas and dumpsters,
exterior building materials, colors, window treatments, outdoor furnishings,
curb cuts, driveways, walkways, lighting, signage, etc. * * *.
Section 15. "Design Review Committee" means the entity responsible for
conducting the Design Review Process and in certain limited instances, as
specifically set forth herein for administering certain aspects of the
Protective Covenants. * * *
2. Article Two: General Character and Purposes
{¶6} Article Two establishes the "General Character and Purposes" of the
Protective Covenants. It states:
The purpose of these Protective Covenants is to insure insofar as possible
that the POLARIS Centers of Commerce will be developed and
maintained in accordance with high standards appropriate to the various
land uses established within POLARIS Centers of Commerce. The
general goal is to create and maintain efficient operation, maximum values
and prosperity for the enterprises located with POLARIS Centers of
Commerce. More particular goals include (i) excellence of design, both of Delaware County, Case No. 14 CAE 11 0075 5
land use planning, site development and building; (ii) ease of access for
employees and customers; (iii) compatibility of adjacent uses; (iv) effective
and restrained signage; (v) outstanding landscaping, both design and
maintenance; (vi) well designed lighting and (vii) adequate parking. These
specific goals reflect conditions at the time these Protective Covenants
were drafted in 1992. It is acknowledged that changing conditions and
values may cause the list to be expanded and/or modified as appropriate
to meet future standards of excellence. To help achieve the goal these
Covenants provide for the establishment of a Design Review Committee
and a Property Owners Association. * * *
{¶7} Plaintiff-Appellee Polaris Owners Association was established pursuant to
Article Two for the purposes of enforcing and administering the Declaration of Protective
Covenants. The Polaris Owners Association is a non-profit group of owners associated
with Polaris. Franz Geiger is the president of the Polaris Owners Association. The
Design Review Committee is part of the Polaris Owners Association.
3. Article Three: Design Review Committee
{¶8} Article Three establishes the Design Review Committee and outlines its
duties. The duties of the Design Review Committee are to generally conduct the review
and approval process as set forth in Article Five of the Protective Covenants. The
Design Review Committee also enforces the Design Guidelines and the Protective
Covenants. Delaware County, Case No. 14 CAE 11 0075 6
4. Article Four: Design Guidelines
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[Cite as Polaris Owners Assn., Inc. v. Solomon Oil Co., 2015-Ohio-4948.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
POLARIS OWNERS ASSOCIATION, : JUDGES: INC. : : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14 CAE 11 0075 : SOLOMON OIL COMPANY, ET AL. : : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12 CVH 08 1015
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
DATE OF JUDGMENT ENTRY: November 23, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendants-Appellants:
KIMBERLY WEBER HERLIHY DENNIS L. PERGRAM CHRISTOPHER C. WAGER 50 North Sandusky St. 52 East Gay St. Delaware, OH 43015-1926 P.O. Box 1008 Columbus, OH 43216-1008 Delaware County, Case No. 14 CAE 11 0075 2
Delaney, J.
{¶1} Defendants-Appellants Solomon Oil Company and Solomon Realty
Company, LLC appeal the July 16, 2014 and November 7, 2014 judgment entries of the
Delaware County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
A. Creation of Polaris Centers of Commerce
{¶2} Polaris Centers of Commerce is a commercial business, retail shopping,
and restaurant area located along Interstate 77 in Delaware County, Ohio. It consists of
approximately 1,026 acres. In 1980, Bob Echele, the founder of Polaris Centers of
Commerce and the managing partner of N.P. Limited Partnership, developed a plan for
a high-end, mixed-use business park that would be the Polaris Centers of Commerce.
The current managing director of N.P. Limited Partnership is Franz Geiger. The
development plan was memorialized in the Declaration of Protective Covenants
adopted on August 20, 1992.
B. Declaration of Protective Covenants
{¶3} The Declaration of Protective Covenants contains design standards for
the businesses located within the Polaris Centers of Commerce territory. The owners of
businesses within the Polaris Centers of Commerce are bound by the terms of the
Declaration of Protective Covenants. Potential investors are provided with a copy of the
Declaration of Protective Covenants. In this case, there is no dispute that Defendants-
Appellants Solomon Oil Company and Solomon Realty Company, LLC are the owners
of a business located in the Polaris Centers of Commerce and are bound by the
Declaration of Protective Covenants. Delaware County, Case No. 14 CAE 11 0075 3
{¶4} The intent of the Declaration of Protective Covenants is:
in pursuance of a general plans for the protection, benefit and mutual
advantage of all the Real Property and of the Persons who are now and
may hereafter become Owners, * * *, the Declarant executes this
Declaration for the purpose of subjecting the Real Property to all and each
of the following restrictions, reservations, conditions, covenants,
easements, rights-of-way, charges, assessments, agreements,
obligations, rights, uses and provisions, all sometimes referred to herein
as "Protective Covenants", which are for the mutual benefit and protection
of, and shall be enforceable by, the Declarant, all and any of the present
and future Owners * * * of any real property.
1. Article One: Definitions of Terms
{¶5} Article One of the Declaration of Protective Covenants defines the terms
used in the document. Relevant to this appeal, Article One defines the following:
Section 8. "Building Site" means a parcel of real estate located within the
Polaris Centers of Commerce consisting of either a lot, portion of a lot,
contiguous lots, or portion of contiguous lots, as applicable, but does not
include Rights-of-Way, Common Property or Interchange Property.
Section 14. "Design Guidelines" means all of those guidelines and
standards prepared by the Developer and its representatives * * *, and
issued to the Design Review Committee describing and dictating the
general considerations which must be undertaken by the Owner * * * in
preparing and submitting an application for the construction of Delaware County, Case No. 14 CAE 11 0075 4
Improvements on or within any Building Site, which standards and
guidelines will be generally followed by the Design Review Committee in
reviewing and approving or disapproving any such application. The
Design Standards generally describe and incorporate specific
requirements for Building Site maintenance, tree preservation, irrigation,
landscaping, set back requirements, lot splits, general architecture,
treatment of mechanical equipment, Service Areas and dumpsters,
exterior building materials, colors, window treatments, outdoor furnishings,
curb cuts, driveways, walkways, lighting, signage, etc. * * *.
Section 15. "Design Review Committee" means the entity responsible for
conducting the Design Review Process and in certain limited instances, as
specifically set forth herein for administering certain aspects of the
Protective Covenants. * * *
2. Article Two: General Character and Purposes
{¶6} Article Two establishes the "General Character and Purposes" of the
Protective Covenants. It states:
The purpose of these Protective Covenants is to insure insofar as possible
that the POLARIS Centers of Commerce will be developed and
maintained in accordance with high standards appropriate to the various
land uses established within POLARIS Centers of Commerce. The
general goal is to create and maintain efficient operation, maximum values
and prosperity for the enterprises located with POLARIS Centers of
Commerce. More particular goals include (i) excellence of design, both of Delaware County, Case No. 14 CAE 11 0075 5
land use planning, site development and building; (ii) ease of access for
employees and customers; (iii) compatibility of adjacent uses; (iv) effective
and restrained signage; (v) outstanding landscaping, both design and
maintenance; (vi) well designed lighting and (vii) adequate parking. These
specific goals reflect conditions at the time these Protective Covenants
were drafted in 1992. It is acknowledged that changing conditions and
values may cause the list to be expanded and/or modified as appropriate
to meet future standards of excellence. To help achieve the goal these
Covenants provide for the establishment of a Design Review Committee
and a Property Owners Association. * * *
{¶7} Plaintiff-Appellee Polaris Owners Association was established pursuant to
Article Two for the purposes of enforcing and administering the Declaration of Protective
Covenants. The Polaris Owners Association is a non-profit group of owners associated
with Polaris. Franz Geiger is the president of the Polaris Owners Association. The
Design Review Committee is part of the Polaris Owners Association.
3. Article Three: Design Review Committee
{¶8} Article Three establishes the Design Review Committee and outlines its
duties. The duties of the Design Review Committee are to generally conduct the review
and approval process as set forth in Article Five of the Protective Covenants. The
Design Review Committee also enforces the Design Guidelines and the Protective
Covenants. Delaware County, Case No. 14 CAE 11 0075 6
4. Article Four: Design Guidelines
{¶9} Article Four establishes the Design Guidelines for owners of businesses or
properties within the Polaris Centers of Commerce. The purpose of the Design
Guidelines is to "set forth and explain the particular standards and procedures
pertaining to the development of the Improvements within POLARIS Centers of
Commerce." The intent of the Design Guidelines "is to create well designed Building
Sites, maintain consistent architecture with compatible use of colors and building
materials, and provide codification of the procedures relating to the Design Review
Process."
{¶10} The Design Review Guidelines is a separate document from the
Declaration of Protective Covenants. It outlines the procedures necessary to obtain
approval of improvements from the Design Review Committee. It states:
Deed Restrictions attached to all land with POLARIS require the
submission of plans to the Design Review Committee ("Committee") prior
to commencement of any construction on new or existing buildings. * * *
No work, whether new construction or a major or minor alteration of an
existing building, including but not limited to signage and landscaping,
may not begin until the Committee has approved the plans and use for a
site. * * *
STANDARDS
FLAGS
*** Delaware County, Case No. 14 CAE 11 0075 7
CORPORATE FLAGS: FOR OFFICE BUILDINGS ONLY
***
DUMPSTERS
ARCHITECTURAL STANDARDS
POLARIS is a premier development in which great details should be given
to design of building. Buildings should be consistent on all four sides.
Services doors and utility banks should be painted to match the color of
the back of the building. Natural and masonry materials are preferred.
Monolithic looking structures and surfaces are discouraged. Exterior bright
surfaces on dominant elevations are discouraged. Building design should
be in harmony with a first class, mixed-use business park.
USES
Similar to building design, uses should be consistent with a first class, high
end, mixed-use business park.
VARIANCES
Attached to the Design Review Guidelines is Exhibit A and B providing guidelines for
signage and landscaping. Delaware County, Case No. 14 CAE 11 0075 8
5. Article Five: Design Review Process
{¶11} Article Five outlines the Design Review Process. As echoed in the Design
Guidelines, Section 1 states:
[n]o Improvement of any kind shall be installed, erected, placed,
assembled, altered or permitted to remain on any Building Site until and
unless its proposed use and the Plans and Specifications for construction
of the same * * * have been first approved in writing by the Design Review
Committee. Approval or disapproval shall be based, among other things,
on conformity and harmony of the use, Plans and Specifications with the
Design Guidelines, these Protective Covenants, adjacent buildings, and
conformity of the same to the general character of POLARIS Centers of
Commerce as described in Article Two hereof. * * *
6. Article Six: Uses
{¶12} Article Six states the "Restrictions on Use and Development." Relevant to
this appeal, Article Six, Section 1 was amended effective April 24, 2007.
a. Prohibited Uses
{¶13} Section 1 outlines "uses" for building sites:
All Building Sites are to be used for offices, motels, hotels, retail and other
uses as approved by the Design Review Committee ("DRC") consistent
with these Protective Covenants. By way of example and not limitation,
the following uses are deemed to be inconsistent with these Protective
Covenants and are specifically prohibited ("Inconsistent Uses"):
(A) refining, smelting, mining operations or drilling * * *; Delaware County, Case No. 14 CAE 11 0075 9
(B) manufacturing, assembly or industrial use;
(C) a mini-storage or self-storage facility or warehouse * * *;
(D) junkyard or a land fill * * *;
(E) stockyard, outdoor animal shelter * * * provided, however, this
provision does not prohibit pet shops or pet supply stores;
(F) adult bookstore or cinema or other establishment selling or exhibiting
pornographic materials where the primary use is the selling, distributing,
dealing and/or exhibiting of such materials * * *;
(G) auto body or fender repair or paint shop * * *;
(H) mobile home park, trailer court * * *;
(I) coin operated laundries or laundromat or dry-cleaning plant * * *;
(J) any gambling facility or operation * * *;
(K) mental hospital * * *, rehab center, halfway house, community food
pantry, * * *;
(L) permanent blood, blood plasma and organ banks * * *;
(M) flea market, pawn broker or pawn shop, consignment store * * *
provided, however, this prohibition shall not be applicable to stores selling
used goods such as "Once Upon a Child", "Play It Again Sports" or similar
stores;
(N) facilities operated primarily for check cashing, cash or payroll
advances or other such loans * * *;
(O) pool or billiard hall, bowling alley, amusement or video game arcade
unless such uses are incidental to a restaurant or bar or directly Delaware County, Case No. 14 CAE 11 0075 10
associated with a permitted use such as a theater, hotel or enclosed
shopping mall * * *;
(P) drive-thru for beer, wine or liquor; and
(Q) churches, temples, mosques or other places or houses of worship * *
*.
In the event of any questions related to the interpretation of this Section 1
including whether a specific use is permitted or prohibited hereunder, the
DRC shall have the authority to determine such matters on behalf of the
Association. Further, notwithstanding the other provisions of this Section 1
to the contrary, the DRC may, in its sole discretion, grant a variance under
this Section 1 to permit the use of one or more Building Sites for one or
more Inconsistent Uses except the Inconsistent Uses listed in Paragraphs
A, D, E, F, H, K, L and M.
b. Subdivision of Building Sites
{¶14} Article Six, Section 27 of the Protective Covenants limits the "Right to
Subdivide" a building site. It states:
Once a Building Site has been purchased or leased from the Developer,
such real estate shall be considered as a single unit; and it shall not be
resubdivided without the prior written approval of the Developer; provided,
however, at such time as the Developer is required to assign over unto the
Association the right to appoint the members of the Design Review
Committee, the same shall also automatically act to assign the approval
set forth with this Section over unto the Association. Delaware County, Case No. 14 CAE 11 0075 11
7. Article Twelve: Attorney Fees
{¶15} Article Twelve of the Declaration of the Protective Covenants contains a
provision for the payment of attorney fees. It states:
In the event it shall be necessary to secure the services of an attorney to
enforce the provisions of all or any of these Protective Covenants, then
the fee of such attorney and all other costs in connection with any
contemplated or actual legal proceeding in such connection shall become
a lien against the Building Site * * * if such proceedings establish the
Building Site is in violation of these Protective Covenants. * * *
C. Solomon Oil Company
1. Terms of the Lease
{¶16} In May 1998, Jacqueline K. Solomon, president of Solomon Oil Company,
entered into a lease agreement with N.P. Limited Partnership. Solomon leased the
property located at 1555 Polaris Parkway to “use the premises for the purpose of
constructing, operating and maintaining a co-branded automobile service station and
quick-service restaurant and related uses (together with such buildings and
improvements as Lessee deems necessary therefor, * * *).” The lease stated Solomon
and N.P. Limited expressly agreed that Solomon would not use the Property for
anything other than the retail sale of gasoline and food “together with such other
products or services consistent with a first class, high quality co-branded automobile
service station and quick service restaurant.” The lease specified that N.P. Limited or
the Design Review Committee had the right to review and approve or disapprove of Delaware County, Case No. 14 CAE 11 0075 12
Solomon’s plans and specifications for improvements to the property. The Declaration
of Protective Covenants was attached to the lease agreement as Exhibit A.
2. Building Site
{¶17} The October 4, 1999 plans show an accessory building located behind the
service station and the quick-service restaurant. The plans refer to the accessory
building as a self-service car wash approximately 1,000 square feet in size.
{¶18} Solomon constructed a Marathon Oil gas station, a convenience store
named Jacquie’s Market and an A & W Restaurant.
{¶19} An accessory building, which is the subject of this case, was constructed
and initially used as self-service car wash. The accessory building was painted the
same colors as the gas station: white, blue, and red.
3. Solomon Purchased the Property
{¶20} On January 10, 2005, Solomon exercised its option to purchase the
property. Solomon Oil Company acquired the property from N.P. Limited through a
limited warranty deed. Solomon Realty Company, LLC acquired title to the property
from Solomon Oil Company. At trial, there was no evidence presented whether the deed
included the same restrictions of the use of the property as included in the terminated
lease.
D. Change of Use by Solomon
1. State Liquor Agency
{¶21} While Solomon was bound under the terms of the lease agreement, N.P.
Limited and Polaris Owners Association brought suit against Solomon for its violation of
the Declaration of the Protective Covenants. In August 2002, Solomon applied for and Delaware County, Case No. 14 CAE 11 0075 13
was awarded a contract to operate a state liquor agency on the property. Solomon
submitted plans to the Design Review Committee for approval of the alterations to
operate the state liquor agency, but it did not obtain approval to perform the alterations.
Polaris Owners Association sought an injunction to prevent Solomon from operating a
state liquor agency. The Delaware County Court of Common Pleas found on October
28, 2004 that Solomon was in violation of Article Five, Section 1 of the Declaration of
Protective Covenants and enjoined it from further violations of the Declarations of
Protective Covenants. See Polaris Owners Association v. Solomon Oil Co., Delaware
County Court of Common Pleas, Case No. 02 CVH-12-742.
2. Beer and Wine Drive-Thru
{¶22} In 2005, Solomon converted the car wash into a beer and wine drive-thru.
Solomon converted the car wash to a beer and wine drive-thru without approval of the
Design Review Committee. The Design Review Committee notified Solomon that the
change of use of the accessory building from a car wash to a beer and wine drive-thru
was in violation of the Protective Covenants because the use was not consistent with a
first class, high-end mixed use business park and the use was unrelated to the building
site. Effective April 24, 2007, Polaris Owners Association voted to amend the
Declarations of Protective Covenants and made a beer and wine drive-thru a prohibited
use. Solomon converted the drive-thru back to a car wash.
3. The Gun Shop
{¶23} In June 2012, Solomon began altering the accessory building with the
intention of operating it as a retail business that exclusively sold guns to the general
public. Solomon obtained permits from the City of Columbus to alter the building and Delaware County, Case No. 14 CAE 11 0075 14
obtained federal licensing to operate a gun shop. The front of the building was
converted from a drive-thru opening to a front door and a garage door was placed at the
rear of the building. A new parking area was constructed. The building was painted dark
green and black.
{¶24} It is undisputed that Solomon did not submit an application to the Design
Review Committee for approval before it began the alterations to the accessory building
as to the change in appearance and change in use.
{¶25} Solomon’s Gun Shop opened for business on August 25, 2012.
4. Other Alterations
{¶26} Solomon also altered the drive-thru portion of the building located at the
front of the building to operate the “Five Star Espresso Lounge.” Solomon placed new
signage on the building. She constructed a patio. Solomon made the alterations without
first obtaining approval of the Design Review Committee.
E. Action by Polaris Owners Association
1. Letters to Solomon
{¶27} Employees with Polaris Owners Association observed that Solomon made
changes to the accessory building. The manager of the Design Review Committee
notified Solomon by letter on June 25, 2012 that such changes were not approved by
the Design Review Committee and any alternations must be approved by the Design
Review Committee. Solomon did not respond to the letter.
{¶28} On August 3, 2012, Polaris Owners Association notified Solomon by letter
that it was in violation of the Declaration of Protective Covenants for altering the use of Delaware County, Case No. 14 CAE 11 0075 15
the accessory building without approval of the Design Review Committee. Solomon did
not respond to the letter.
2. Permanent Injunction and Declaratory Relief
{¶29} On August 28, 2012, Polaris Owners Association filed a verified complaint
seeking declaratory judgment and a preliminary and permanent injunction against
Solomon. It requested the trial court to issue a declaratory judgment that the Declaration
of Protective Covenants was enforceable against Solomon and that Solomon may not
operate a gun shop without the approval of the Design Review Committee. Polaris
Owners Association moved for a preliminary and permanent injunction to prevent the
change of use of the accessory building to a gun shop without the approval of the
Design Review Committee.
{¶30} Polaris Owners Association also requested the trial court order Solomon
to remove any changes to the related buildings not approved by the Design Review
Committee, such as changes to the Five Star Espresso Lounge, to the monument sign,
and signage on the property.
{¶31} The trial court held a hearing on the preliminary injunction. The trial court
granted the preliminary injunction on August 31, 2012. The injunction prevented
Solomon from operating a gun shop in the accessory building.
F. Response by Solomon
{¶32} After the trial court issued the preliminary injunction, Solomon filed an
application with the Design Review Committee to change the use of the accessory
building to a gun shop. It also sought approval for other signage, painting, and
landscaping changes on the property. Delaware County, Case No. 14 CAE 11 0075 16
1. Design Review Committee Disapproves the Plans
{¶33} On September 20 and 25, 2012, the members of the Design Review
Committee met to review the plans submitted by Solomon for the change of use of the
accessory building to a gun shop. On October 5, 2012, the Design Review Committee
sent Solomon Oil a letter explaining the committee met on September 20, 2012 and
reviewed the plans submitted for the property. The letter stated:
1. Solomon's Gun Shop: While you did not expressly requests approval for
a change of use for the rear building, the DRC finds that you are indeed
changing the use and denies that change of use. * * * The introduction of
an unrelated retail use in an accessory building does not reflect the goal of
"excellence of design, both of land use planning, site development and
building" as prescribed by Article II of The Protective Covenants, nor is
this use "consistent with a first class, high end, mixed-use business park,"
as required by the standards set for in the Design Guidelines.
{¶34} The letter went on to state the issues the DRC found with the exterior
paint colors, signage, patio furniture, and landscaping for Solomon's Gun Shop, Five
Star Espresso Lounge, and Jacquie's Market. The DRC instructed that Solomon could
resubmit items to be presented at the next DRC meeting. Solomon was encouraged to
meet with the DRC architectural consultant to develop the appropriate color scheme,
signage, and other design plans in a comprehensive, consistent plan that will likely be
acceptable to the DRC. The DRC gave Solomon one year to comply with the Protective
Covenants and Design Guidelines. Delaware County, Case No. 14 CAE 11 0075 17
2. Solomon Files Counterclaim
{¶35} On November 16, 2012, Solomon filed a restated answer and
supplemental counterclaim alleging the action of the Design Review Committee to
disapprove of the change of use was unreasonable, arbitrary, and capricious and was
not made in good faith and against public policy.
G. Trial Court Judgment
{¶36} The matter came on for a bench trial on May 21, 2013 through May 24,
2013.
1. Declaratory Judgment and Permanent Injunction
{¶37} On July 16, 2014, the trial court issued its judgment, finding Solomon was
in violation of the Declaration of Protective Covenants. It issued a permanent injunction
restraining Solomon from changing the use of the accessory building to a gun shop;
from operating, advertising, or promoting the gun shop; and from further alterations to
the property without the approval of the Design Review Committee. The trial court
further ordered Solomon to return the property to the condition previously approved by
the Design Review Committee as it related to the monument sign and the Five Star
Espresso Lounge. It denied Solomon’s counterclaims. Solomon appeals this judgment.
2. Attorneys Fees
{¶38} Polaris Owners Association also requested attorney fees pursuant to
Article Twelve of the Declaration of Protective Covenants. A hearing on attorney fees
was held on September 15, 2014. Delaware County, Case No. 14 CAE 11 0075 18
{¶39} On November 7, 2014, the trial court awarded Polaris Owners Association
attorneys fees in the amount of $130,339.00 and $6,782.77 in costs. Solomon appeals
this judgment.
ASSIGNMENTS OF ERROR
{¶40} Solomon raises four Assignments of Error:
{¶41} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
GRANTING A DECLARATORY JUDGMENT IN FAVOR OF POLARIS ON ITS
COMPLAINT FOR DECLARATORY JUDGMENT AND BY THEN ISSUING A
PERMANENT INJUNCTION AS A RESULT OF THE SAME.
{¶42} II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT
GRANTING DECLARATORY RELIEF TO SOLOMON REALTY ON ITS
COUNTERCLAIM.
{¶43} III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
DETERMINING THAT POLARIS WAS LEGALLY ENTITLED TO ATTORNEY FEES.
{¶44} IV. ASSUMING, ARGUENDO, THAT POLARIS WAS LEGALLY
ENTITLED TO SOME ATTORNEYS' FEES, THE TRIAL COURT ABUSED ITS
DISCRETION BY AWARDING THE AMOUNT OF FEES IT AWARDED."
ANALYSIS
A. Declaratory Judgment
{¶45} Solomon argues the trial court erred in granting declaratory judgment in
favor of Polaris Owners Association and denying declaratory judgment against
Solomon. Because these arguments are interrelated, we will consider them together. Delaware County, Case No. 14 CAE 11 0075 19
1. Standard of Review
{¶46} This matter came before the court upon complaints for declaratory
judgment (and Polaris’s motion for permanent injunction). A declaratory judgment action
is a civil action and provides a remedy in addition to other legal and equitable remedies
available. Fagan v. Boggs, 4th Dist. Washington No. 10CA17, 2011-Ohio-5884, ¶ 13
citing Aust v. Ohio State Dental Bd., 136 Ohio App.3d 677, 681, 737 N.E.2d 605 (10th
Dist.2000).
{¶47} The trial court conducted a bench trial on this case. As an appellate court,
we are not fact finders; we neither weigh the evidence nor judge the credibility of
witnesses. Our role is to determine whether there is relevant, competent, and credible
evidence upon which the fact finder could base his or her judgment. Peterson v.
Peterson, 5th Dist. No. CT2003–0049, 2004–Ohio–4714, ¶ 10, citing Cross Truck v.
Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911 (Feb. 10, 1982). Questions of law are
reviewed by the court de novo. Erie Ins. Co. v. Paradise, 5th Dist. No.2008CA00084,
2009–Ohio–4005, ¶ 12.
{¶48} In Eastley v. Volkman, 132 Ohio St.3d 328, 2102–Ohio–2179, 972 N.E.2d
517, the Ohio Supreme Court clarified the standard of review appellate courts should
apply when assessing the manifest weight of the evidence in a civil case. SST Bearing
Corp. v. Twin City Fan Companies, Ltd., 1st Dist. No. C110611, 2012–Ohio–2490, ¶ 16.
The Ohio Supreme Court held the standard of review for manifest weight of the
evidence for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19. A reviewing
court is to examine the entire record, weigh the evidence and all reasonable inferences, Delaware County, Case No. 14 CAE 11 0075 20
consider the credibility of witnesses, and determine “whether in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered.” Eastley, at ¶ 20
quoting Twearson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001);
See also Sheet Metal Workers Local Union No. 33 v. Sutton, 5th Dist No. 2011
CA00262, 2012–Ohio–3549 citing State v.. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶49} “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).” Eastley, at ¶ 19.
{¶50} Restrictive covenants in deeds are generally interpreted by those rules
used to interpret contracts. Cumberland Trail Homeowners' Assn., Inc. v. Kinietz, 5th
Dist. Licking No. 11-CA-72, 2012-Ohio-2906, ¶ 23 citing McBride v. Behrman, 28 Ohio
Misc. 47, 50, 272 N.E.2d 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). Delaware County, Case No. 14 CAE 11 0075 21
2. Restrictions on Use of Property
{¶51} Ohio's law“ 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 (9th Dist.), ¶ 11, citing Houk v. Ross, 34
Ohio St.2d 77, 296 N.E.2d 266 (1973), paragraph two of the syllabus.
{¶52} The Declaration of Protective Covenants states its purpose is to maintain
"a first class, high end, mixed-use business park." The Ohio Supreme Court has held,
"[w]here 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." Dixon v. Van Sweringen
Co., 121 Ohio St. 56, 166 N.E. 887 (1929), paragraph one of syllabus. In Goutras v.
Dillon–McDonald, 5th Dist. Stark No. CA–8349, 1991 WL 207949, *2 (Sept. 30.1991),
this court held: Delaware County, Case No. 14 CAE 11 0075 22
A restriction merely requiring submission and approval of building plans
may be valid.
In order that a restrictive covenant requiring the submission to and
approval of the grantor of plans for the erection of a dwelling may be valid
and enforcible [sic], such covenant must be used (1) in connection with
some general plan or scheme of which the grantee has notice, or (2) some
other designated or stated restriction within which such approval may
operate, or (3) the covenant must contain some criterion or limitation
regulating the scope of such approval. Carranor Woods Property Owners'
Assn. v. Driscoll (1957), 106 Ohio App. 95, paragraph three of the
syllabus.
See also Samsa v. Hess, 5th Dist. Tuscarawas No. 2014 AP 0008, 2015-Ohio-1319, ¶
24.
{¶53} We consider Solomon's arguments under these common law guidelines.
3. Approval by the Design Review Committee Required by the Covenants
{¶54} The Declaration of Protective Covenants and Design Review Guidelines
state:
Deed Restrictions attached to all land with POLARIS require the
submission of plans to the Design Review Committee ("Committee") prior
to commencement of any construction on new or existing buildings. * * *
No work, whether new construction or a major or minor alteration
of an existing building, including but not limited to signage and Delaware County, Case No. 14 CAE 11 0075 23
landscaping, may begin until the Committee has approved the plans and
use for a site.
{¶55} The above language is clear and unambiguous that an owner must submit
her plans to the Design Review Committee before she commences any construction as
to new or existing buildings. In this case, there is no factual dispute that Solomon did
not submit plans to the Design Review Committee before it commenced construction on
the accessory building. After the commencement of the present litigation, Solomon
submitted plans to the Design Review Committee for their review of the already
completed construction of the gun shop.
{¶56} Solomon's failure to submit the plans for the accessory building before it
commenced work on the accessory building was in violation of the Declaration of
Protective Covenants and Design Review Guidelines.
4. The Gun Shop is an Unrelated Use on the Building Site
{¶57} The trial court determined the change of use of the accessory building
was in violation of the Declaration of Protective Covenants because it was an unrelated
use to the building site. We agree with the trial court's conclusion.
{¶58} We recently reaffirmed our reliance on Carranor Woods Property Owners'
Assn. v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (6th Dist.1957), to determine
whether a restrictive covenant is enforceable. The case law stated:
In order that a restrictive covenant requiring the submission to and
approval of the grantor of plans for the erection of a dwelling may be valid
and enforcible [sic], such covenant must be used (1) in connection with
some general plan or scheme of which the grantee has notice, or (2) some Delaware County, Case No. 14 CAE 11 0075 24
other designated or stated restriction within which such approval may
operate, or (3) the covenant must contain some criterion or limitation
regulating the scope of such approval.
Id. at paragraph three of the syllabus. The language of the restrictive covenant,
however, cannot be indefinite, doubtful, or capable of contradictory interpretations.
{¶59} A review of the Declaration of Protective Covenants shows that it makes
numerous references to the importance of "related use" to the purpose and goals of the
development of the Polaris Centers of Commerce. Article Two describes the character
and purpose of the Declaration of Protective Covenants is to develop the Polaris
Centers of Commerce in accordance with high standards appropriate to the various land
uses established in the area. It states the particular goals include "(i) excellence of
design, both of land use planning, site development and building; [and] (iii) compatibility
of adjacent uses." The Design Review Committee and Property Owners Association
were established for the achievement of those purposes and goals. Article Four
establishes the Design Guidelines for the owners of businesses or properties with the
Polaris Centers of Commerce. The intent of the Design Guidelines "is to create well
designed Building Sites, maintain consistent architecture with compatible use of colors
and buildings materials." Article Five of the Protective Covenants outlines the Design
Review Process. It states that approval or disapproval of the Design Review Committee
"shall be based, among other things, on conformity and harmony of the use, Plans and
Specifications with the Design Guidelines, these Protective Covenants, adjacent
buildings, and conformity of the same to the general character of POLARIS Centers of
Commerce." Delaware County, Case No. 14 CAE 11 0075 25
{¶60} The Declaration of Protective Covenants defines "building site" as: "a
parcel of real estate located within the Polaris Centers of Commerce consisting of either
a lot, portion of a lot, contiguous lots, or portion of contiguous lots, as applicable, * * * "
Article Six, Section 27 of the Protective Covenants states that once a building site has
been purchased from the developer, such real estate shall be considered a single unit.
There is no dispute that the Solomon Property consisting of the gas station and
accessory building is one "building site" pursuant to the definition in the Declaration of
Protective Covenants.
{¶61} A review of the evidence shows that Solomon was aware or should have
been aware that the Declaration of Protective Covenants and Design Guidelines,
through approval by the Design Review Committee, required the use of the accessory
building to be related to the use of the existing building site. When Solomon originally
leased the building site from N.P. Limited Partnership, the lease stated the building site
was to be used “for the purpose of constructing, operating and maintaining a co-
branded automobile service station and quick-service restaurant and related uses
(together with such buildings and improvements as Lessee deems necessary therefor, *
* *). Included in the construction plans was an accessory building to the rear of the gas
station that was to be used as a car wash. Solomon painted the accessory building the
same colors as the gas station. It initially used the accessory building as a car wash.
{¶62} In 2005, after it had purchased the property, Solomon converted the car
wash to a beer and wine drive-thru without first seeking approval from the Design
Review Committee. The Design Review Committee notified Solomon it was in violation Delaware County, Case No. 14 CAE 11 0075 26
of the Declaration of Protective Covenants because the use of the accessory building as
a beer and wine drive-thru was an unrelated use to the other uses on the building site.
{¶63} In 2012, Solomon converted the accessory building into a gun shop. After
the within lawsuit was commenced, Solomon submitted plans for the change of use of
the accessory building to the Design Review Committee, which rejected the plans. The
Design Review Committee stated in its letter to Solomon rejecting the plans that, "[t]he
introduction of an unrelated retail use in an accessory building does not reflect the goal
of 'excellence of design, both of land use planning, site development and building' as
prescribed by Article II of The Protective Covenants, nor is this use 'consistent with a
first class, high end, mixed-use business park,' as required by the standards set for in
the Design Guidelines."
{¶64} The Design Review Committee rejected the use of the accessory building
as a gun shop because the Committee determined it was an unrelated retail use in an
accessory building. At trial, the committee members testified to their reasoning for
rejecting the plans for the change of use of the accessory building. Dawn Barkley
testified she did not believe the proposal made by Solomon was consistent with a first
class, high end mixed-use business park because "she [Solomon] was putting
something totally unrelated to her business, adding in a separate business onto her
property. * * * Gun shop has absolutely nothing to do with her gas station and the
espresso lounge, she's changing the use from what was a service to retail." (Trial
Trans., Vol. II, p. 220). Steve Pagura of the Design Review Committee testified he
thought converting the car wash to a gun shop was not consistent with a first class, high
end mixed-use business park because he had concerns with the parking and the Delaware County, Case No. 14 CAE 11 0075 27
aesthetics of the architecture being compatible with the original build. (Trial Trans., Vol.
II., p. 261). John V. Heilman testified that one of his concerns was the proposed gun
shop was that it would not relate to family entertainment that Polaris strives to have.
(Trial Trans., Vol. II, p. 288). He further felt that the gun shop was not a related use to
the gas station. (Trial Trans., Vol. 11, p. 300).
{¶65} The record supports the trial court's conclusion that Solomon's change of
use of the accessory building to the gun shop was in violation of the Declaration of
Protective Covenants. The Declaration of Protective Covenants clearly and
unambiguously promoted the importance of the compatibility of adjacent uses within the
Polaris Centers of Commerce. Solomon was aware of the standard within the
Declaration of Protective Covenants that the use of the accessory building must be
related to the use of the existing building site because the Design Review Committee
previously determined Solomon's use of the accessory building as a beer and wine
drive-thru was impermissible because it was not related to the use of the existing
building site. The testimony of the Design Review Committee showed that their
determination to reject the plans for the accessory building was because the gun shop
was not a related use to the gas station.
{¶66} Further, by owning property in the Polaris Centers of Commerce, which
binds the property through the Declaration of Protective Covenants, Solomon agreed to
be bound by the authority of the Design Review Committee for matters within the
Design Review Guidelines. Article Six, Section 1 states:
In the event of any questions related to the interpretation of this Section 1
including whether a specific use is permitted or prohibited hereunder, the Delaware County, Case No. 14 CAE 11 0075 28
DRC shall have the authority to determine such matters on behalf of the
Association. Further, notwithstanding the other provisions of this Section 1
to the contrary, the DRC may, in its sole discretion, grant a variance under
this Section 1 to permit the use of one or more Building Sites for one or
more Inconsistent Uses except the Inconsistent Uses listed in Paragraphs
{¶67} Upon this record, we affirm the trial court’s judgment to grant the
declaratory judgment of Polaris Owners Association and deny Solomon’s declaratory
judgment.
5. Restrictive Covenants as to Color, Signage, and Landscaping are Valid
{¶68} The Design Review Committee also rejected Solomon's plans for color,
signage, and landscaping. The focus of Solomon's arguments on appeal was the use of
the accessory building as a gun shop. Our review of the Declaration of Protective
Covenants and Design Review Guidelines shows that the standards for signage and
landscaping are set out in clear and unambiguous detail.
{¶69} We find no error as to the application of the Declaration of Protective
Covenants and Design Review Guidelines as to color, signage, and landscaping.
6. Other Violations
{¶70} In the trial court's July 16, 2014 judgment entry, the trial court ordered
Solomon to restore the monument sign to the prior approved condition; remove all
unapproved signage from the property, including the product name signage at the Five
Star Espresso Lounge; and remove the patio at the Five Star Espresso Lounge. Delaware County, Case No. 14 CAE 11 0075 29
{¶71} Solomon argues the trial court erred in ordering Solomon to remove the
patio because Polaris Owners Association never raised the issue in its verified
complaint or motion for preliminary injunction in regards to the patio at the Five Star
Espresso Lounge. Our review of the verified complaint filed on August 28, 2012 by
Polaris Owners Association finds there is no mention of removal of the patio at the Five
Star Espresso Lounge.
{¶72} Polaris Owners Association states that while the patio is not mentioned in
the verified complaint, the patio was mentioned in the Design Review Committee letter
to Solomon. The letter stated, "Finally, the patio installed for the Espresso Lounge was
never approved. Please submit plans for this patio to the DRC promptly." In the prayer
for relief of the verified complaint, Polaris Owners Association requested the trial court
to "[o]rder Defendants to remove from the Property, and restore the Property to its
condition prior to, any changes in use or alterations not approved by the Design Review
Committee, including but not limited to * * * (2) changes or alterations related to the
operation of the Espresso Lounge." At trial, Franz Geiger testified on behalf of Polaris
Owners Association that it was requesting Solomon submit for approval the patio that
was placed on the property without approval. (Trial Trans., Vol. I, p. 103). Polaris
Owners Association does not point to any other evidence in the record as to the
removal of the patio.
{¶73} Upon this record, we find the trial court's conclusion that Solomon must
remove the patio is not supported by competent and credible evidence. We find the
record supports the request for Solomon to resubmit plans for the patio to the Design
Review Committee. Delaware County, Case No. 14 CAE 11 0075 30
7. Declaratory Judgment in favor of Polaris Owners Association is affirmed
in part and reversed in part
{¶74} Based on our above analysis, we sustain in part and overrule in part the
first and second Assignments of Error of Solomon.
B. Attorneys Fees
{¶75} Solomon argues in its third and fourth Assignments of Error that the trial
court erred when it awarded attorneys fees and costs to Polaris Owners Association.
{¶76} Article Twelve of the Declaration of Protective Covenants permits Polaris
Owners Association to seek attorneys fees and costs if it is necessary to enforce the
Declarations of Protective Covenants.
1. Polaris Owners Association May Seek Attorneys Fees
{¶77} In the trial court's November 7, 2014 judgment entry as to attorneys fees,
the trial court determined Polaris Owners Association was entitled to recover
reasonable attorneys fees incurred in the case for the purpose of enforcing the
Declaration of Protective Covenants. The trial court found the parties stipulated on
August 31, 2012 that Solomon's property was covered by the restrictive covenants,
which resolved the declaratory judgment issue.
{¶78} Pursuant to this court's decision in Morgan Woods Homeowners' Assoc. v.
Wills, 5th Dist. Licking No. 11 CA 57, 2012-Ohio-233, ¶ 61-62, we find that while Polaris
Owners Association brought the action as a declaratory judgment, it may pursue
attorneys fees because they were incurred for the purpose of enforcing restrictive
covenants: Delaware County, Case No. 14 CAE 11 0075 31
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.
As the attorney fees incurred by Appellee in this case were for the
purpose of enforcing the restrictive covenants of Morgan Woods, we find Delaware County, Case No. 14 CAE 11 0075 32
that the trial court did not err in finding that Appellee was entitled to
recover attorney fees.
See also Kurtz v. W. Property, L.L.C., 10th Dist. Franklin No. 10AP-1099, 2011-Ohio-
6726.
{¶79} Solomon's third Assignment of Error is overruled.
2. The Amount of Attorneys Fees and Costs is Affirmed
{¶80} In Solomon's fourth Assignment of Error, it argues the trial court abused
its discretion in the amount of attorneys fees it awarded.
{¶81} The trial court determined Polaris Owners Association was entitled to
recover reasonable attorneys fees and costs incurred after August 31, 2012 for the
enforcement of the restrictive covenants against Solomon's property. The trial court's
November 7, 2014 judgment entry awarded $130,339.00 in attorneys fees and
$6,782.77 in costs to Polaris Owners Association.
{¶82} In Landmark Disposal, Ltd. v. Byler Flea Mkt., 5th Dist. Stark
Nos.2005CA00291, 2005CA00294, 2006–Ohio–3935, ¶¶ 13–15, we reviewed the
standard by which a trial court is to determine a reasonable amount of attorneys' fees:
The starting point in determining the amount of fees to award under the
statute is the computation of the lodestar figure. Blum v. Stenson (1984),
465 U.S. 886, 888,104 S.Ct. 1541, 1543–1544, 79 L.Ed.2d 891, 895–896;
Hensley v. Eckerhart (1983), 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d
40. The lodestar is the number of hours expended multiplied by a
reasonable hourly rate. City of Burlington v. Dague (1992), 505 U.S. 557,
559–561, 112 S.Ct. 2638, 2640, 120 L.Ed.2d 449, 454–456; Blum, 465 Delaware County, Case No. 14 CAE 11 0075 33
U.S. at 888; Hensley, 461 U.S. at 433. If the court deviates from the
lodestar, it must provide a clear explanation. Hensley, 461 U.S. at 437.
{¶83} To establish the number of hours reasonably expended, the party
requesting the award of attorney fees “should submit evidence supporting the hours
worked....” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. The number of hours should be
reduced to exclude “hours that are excessive, redundant, or otherwise unnecessary” in
order to reflect the number of hours that would properly be billed to the client. Id. at 434,
103 S.Ct. at 1939–40. A reasonable hourly rate is defined as “the ‘prevailing market rate
in the relevant community.’ “ Blum, 465 U.S. at 895.
{¶84} Once the trial court calculates the lodestar figure, the court may modify
that calculation by application of the factors listed in DR 2–106(B). Bittner v. Tri–County
Toyota, Inc., 58 Ohio St.3d 143, 145, 569 N.E.2d 464 (1991). These factors are: the
time and labor involved in maintaining the litigation; the novelty and difficulty of the
questions involved; the professional skill required to perform the necessary legal
services; the attorney's inability to accept other cases; the fee customarily charged; the
amount involved and the results obtained; any necessary time limitations; the nature
and length of the attorney/client relationship; the experience, reputation, and ability of
the attorney; and whether the fee is fixed or contingent. Not all factors may be
applicable in all cases and the trial court has the discretion to determine which factors to
apply, and in what manner that application will affect the initial calculation. Id.
{¶85} The party requesting an award of attorney fees bears the burden “to
produce satisfactory evidence—in addition to the attorney's own affidavit—that the
requested rate [is] in line with those prevailing in the community for similar services by Delaware County, Case No. 14 CAE 11 0075 34
lawyers of reasonably comparable skill, experience, and reputation.” TCF Natl. Bank v.
Williams, 5th Dist. Stark No. 2009CA00102, 2010–Ohio–1487, ¶ 26 quoting Blum v.
Stenson, supra 465 U.S. at 895 n. 11.
{¶86} A determination of whether to award attorney fees and the amount of such
fees is within the sound discretion of the trial court. Unless the amount of fees
determined is so high or so low as to shock the conscience, an appellate court shall not
interfere. Bittner, supra at 146, 569 N.E.2d 464. (Citation omitted).
{¶87} Upon a review of the evidence presented at the hearing, we find the trial
court did not abuse its discretion in determining Polaris Owners Association was entitled
to attorneys' fees in the amount of $130,339.00 and costs in the amount of $6,782.77.
CONCLUSION
{¶88} The judgments of Delaware County Court of Common Pleas are affirmed
in part and reversed in part.
By: Delaney, J.,
Hoffman, P.J. and
Farmer, J., concur.
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