COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58884 LANDERHAVEN COUNTRY CLUB ESTATES, : LTD., : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION FIRST ASSEMBLY OF GOD OF LYNDHURST,: INC., : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 5, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 165,683 JUDGMENT : AFFIRMED IN PART AND : REVERSED IN PART AND : REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Edward Kancler BENESCH, FRIEDLANDER, COPLAN & ARONOFF 1100 Citizens Building 850 Euclid Avenue Cleveland, Ohio 44114 For defendant-appellee: Donald M. Robiner Dale M. Hartman SCHWARZWALD, ROBINER & ROCK 616 Bond Court 1300 East Ninth Street Cleveland, Ohio 44114 -2- NAHRA, P.J.: Landerhaven Country Club Estates, Ltd. appeals from the order of the trial court denying its summary judgment motion and granting summary judgment in favor of First Assembly of God of Lyndhurst, Inc. We affirm the denial of Landerhaven Country Club Estates, Ltd.'s summary judgment motion and reverse the grant of summary judgment to First Assembly of God of Lyndhurst. Landerhaven Country Club Estates, Ltd., appellant, and First Assembly of God of Lyndhurst, Inc., appellee, own property abutting Lander Haven Drive in Mayfield Heights. Both are subject to a Declaration of Restrictions, Conditions and Covenants for Real Estate Abutting Lander Haven Drive. This declaration provides in pertinent part as follows: 1. [Appellant] shall cause to be maintained and repaired in a reasonable manner: (a) Lander Haven Drive; and (b) Any sanitary and/or storm sewer facilities and improvements that pertain to, connect with or affect said Lander Haven Drive. * * * 4. Each and every owner and subsequent owner of the Premises or any portion thereof shall assume and agree to pay an equitable pro rata portion of the annual cost of all of the aforementioned services to be furnished and provided by [appellant] based upon the front footage of the Premises owned by a particular owner fronting on Lander Haven Drive compared to the total front footage of the entire Premises that fronts on said Lander Haven Drive . . . . * * * -3- 6. [Appellant] agrees to cause the subject services to be furnished until the first to occur of the following events: (a) The date that Lander Haven Drive becomes a duly dedicated public drive, or (b) [Appellant] (or its subsequent transferee of record) is not the owner of at least fifty-one percent (51%) of the total frontage abutting Lander Haven Drive . . . at which time all of the property owners of the Premises shall elect annually on the first Monday in May, by a majority vote based upon front footage owned on Lander Haven Drive, a three-person committee to be responsible for furnishing the aforementioned services for maintenance, repair and snow removal . . . . In 1986, appellant undertook improvements and repairs of Lander Haven Drive, including new paving and storm sewers. Appellant improved the road pursuant to Mayfield Heights regulations. Appellant notified the other abutting property owners, including appellee, of the planned improvements and of their proportionate shares of the costs. After the improvements were substantially completed, appellant sent appellee a request for payment of its proportionate share of the costs. Appellee refused to pay its share. Appellant filed a complaint against appellee and Gerald Weinberg seeking payment for their proportionate shares of the costs of improving Lander Haven Drive. Appellant asserted that -4- it had repaired and improved the road and the sanitary and storm sewers. It attached a copy of the Declaration quoted supra. Gerald Weinberg was dismissed from the case and is not a party to this appeal. Appellee denied that appellant "repaired and improved" the road in its answer to the complaint. Appellee also asserted a counterclaim, requesting declaratory judgment of its rights, duties and obligations under the Declaration. Appellee filed a motion for summary judgment. Appellee claimed in its motion that it was not liable to appellant for costs because the improvements were made only for purposes of dedicating the road, and did not constitute reasonable repair and maintenance. Appellant filed a motion for summary judgment with a supporting brief which also opposed appellee's summary judgment motion. Appellant claimed that appellee's motion should be denied, because the improvements were not clearly beyond the scope of maintenance and repair. Appellant also requested summary judgment on the basis that the paving and sewering were within the scope of maintenance and repair. The trial court denied appellant's motion and granted defendant's motion. It found that the Declaration only concerned costs for repair and maintenance, and that there was no question of material fact that the improvements were done solely to dedicate the road. It held that the improvements did not -5- constitute repair and maintenance, but were new construction not covered by the Declaration. Appellant brought this timely appeal, assigning five errors. Appellant's first four assignments of error state that the trial court erred in granting appellee's summary judgment motion. The fifth assignment states that the trial court erred in denying appellant's summary judgment motion. Because the assignments are interrelated, we will address them together./1\ /1\ Appellant's assignments of error read as follows: ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN RENDERING A CREDIBILITY DECISION RESPECTING PLAINTIFF/APPELLANT'S EVIDENCE, ESPECIALLY WHEN DEFENDANT/APPELLEE OFFERED NO EVIDENCE IN CONTRAVENTION OF PLAINTIFF/APPELLANT'S EVIDENCE. ASSIGNMENT OF ERROR NO. 3 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT BY ERRONEOUSLY INTERPRETING THE LEGAL MEANING OF THE WORDS "MAINTENANCE" AND "REPAIR" AS BEING PRECLUSIVE OF THE TERM "NEW CONSTRUCTION", ALL CONTRARY TO ESTABLISHED CASE LAW. ASSIGNMENT OF ERROR NO. 4 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT TO DEFENDANT/APPELLEE, BY FAILING TO GIVE CREDENCE TO UNCONTRADICTED EVIDENCE SUBMITTED BY PLAINTIFF/APPELLANT, WHICH UNCONTRADICTED EVIDENCE WAS OF A MATERIAL FACT. ASSIGNMENT OF ERROR NO. 5 -6- As quoted supra, the Declaration obligated abutting landowners to pay their proportionate shares of repairs and maintenance of Lander Haven Drive. The words "repairs" and "maintenance" must be given their ordinary meanings. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241, paragraph two of the syllabus. Summary judgment cannot be granted unless there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). Both appellant and appellee claimed that they were entitled to summary judgment. Appellant asserted that its improvements to Lander Haven Drive constitute repair and maintenance, so that appellee is obligated to pay its proportionate share pursuant to the Declaration. Appellee asserted, and the trial court agreed, that the improvements were not repairs and maintenance, and it was not obligated to pay costs pursuant to the Declaration. Both appellant and appellee attached two letters from appellant to their motions. One letter is dated June 6, 1986, and states that the road is being improved pursuant to Mayfield Heights regulations, and that dedication of the road is anticipated. It states that the "result will be a newly paved street with new storm sewering". A second letter from appellant THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GRANT PLAINTIFF/APPELLANT'S MOTION FOR SUMMARY JUDGMENT, DESPITE THE FACT THAT THE WORK PERFORMED BY PLAINTIFF/APPELLANT WAS CLEARLY WITHIN THE SCOPE OF THE TERMS OF THE RESTRICTIONS AND COVENANTS INVOLVED. -7- dated June 2, 1987, states that the improvements include new pavement and storm sewers, and were necessary not only "for the future continued use of Landerhaven (sic) Drive, but also for dedication purposes to the City of Mayfield Heights". Appellant also attached the affidavit of Larry Davis, executive officer of appellant. Davis' affidavit states that Lander Haven Drive was to be improved pursuant to Mayfield Heights regulations. It also refers to the improvements as repairs and maintenance, see paragraphs four and five. We find that there is a genuine issue in this case regarding whether the improvements constructed by appellant, or any portion of them, constitute repair and maintenance of Lander Haven Drive, or constitute construction beyond the scope of the Declaration. The evidence submitted by appellant and appellee in support of their motions does not resolve this issue and neither is entitled to summary judgment. The fact that appellant intended to dedicate the road does not necessarily mean that none of its improvements fall within the ordinary meaning of repairs and maintenance pursuant to the Declaration. Likewise, the fact that appellant sometimes referred to the improvements as repair and maintenance, does not mean that all of the improvements necessarily constitute repairs and maintenance pursuant to the Declaration. The record does not contain conclusive evidence establishing that the improvements are or are not repairs and maintenance. The trial court correctly denied appellant's summary judgment motion, but erred in granting -8- appellee's summary judgment motion. The case is affirmed in part and reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. further proceedings consistent with this opinion. This cause is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .