COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71817 JOSEPH C. PATERNITI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ROBERT D. ZUBER, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT NOVEMBER 20, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-295494 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: For Defendants-Appellees: DONALD H. POWERS, ESQ. KENNETH J. WALSH, ESQ. DONNA J. POWERS, ESQ. 2100 Bank One Center 2 Berea Commons, Ste. 215 600 Superior Avenue P. O. Box 1059 Cleveland, Ohio 44114 Berea, Ohio 44017 PATRICIA ANN BLACKMON, J.: Joseph Paterniti, plaintiff-appellant, a homeowner in the Ranchland Subdivision in Independence, Ohio, appeals a summary judgment decision denying his request for an injunction to prohibit -2- Robert and Cynthia Zuber, defendants-appellees, from building a house in violation of the height restriction imposed upon the subdivision'slots. Paterniti assigns two errors for our review: I. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On September 18, 1995, Joseph Paterniti and Mario Ventura filed a complaint against Robert and Cynthia Zuber seeking to enforce the covenants and restriction imposed upon the lots located in the Ranchland Subdivisions, a housing development located in Independence, Ohio. Paterniti owned a home in Subdivision No.2 and Ventura owned a home in Subdivision No. 3. The complaint sought to enjoin the Zubers from constructing a home in Subdivision No. 3 in violation of the following covenant: No dwelling house shall be erected or suffered to remain on any residential lot unless the ridge of the roof is at least 13 feet and not more than 16 feet above the finished first floor. The covenant was imposed upon Subdivision No. 3 in a document entitled Instrument Imposing Certain Restrictions Upon and Reserving Certain Rights Upon Property Situated in the Village of Independence, Cuyahoga County, Ohio recorded on July 31, 1958. The identical restriction was imposed on the lots in Subdivision No. 2 in February 1957. -3- The complaint sought to restrain and enjoin the Zubers from building their house in violation of the Declaration of Restrictions. On November 20, 1995, the Zubers moved to dismiss the complaint claiming that Paterniti and Ventura failed to state a claim upon which relief could be granted, that they failed to join necessary parties, and that they lacked standing to pursue the complaint. On February 12, 1996, Paterniti moved for a preliminary injunction to prevent the Zubers from building their house. The motion to dismiss the complaint was denied on February 21, 1996. Shortly after his deposition was taken,, Mario Ventura died. On April 4, 1996, Paterniti filed a suggestion of Ventura's death. The motion for preliminary injunction was denied on April 22, 1996 when the trial court concluded that Paterniti had not proven by clear and convincing evidence that they would suffer irreparable harm or that a restraining order would maintain the status quo. On June 13, 1996, the Zubers moved for summary judgment, claiming the plaintiffs failed to state a claim for which relief could be granted, lacked standing to pursue the complaint, and could prove no set of facts entitling them to injunctive relief. Paterniti moved for summary judgment, claiming the restrictions on the land are part of a general plan of development and enforceable against the Zubers, that the Zubers had notice of the restrictions, that the restrictions had not been waived or abandoned, and that the absent of actual harm or damage did not preclude injunctive relief. -4- On November 26, 1996, the trial court granted the Zubers' motion for summary judgment and denied Paterniti's motion for summary judgment. The trial court opined that, since the restrictions granted enforcement rights to the Grantor, its successors and assigns, Paterniti had no standing to enforce the height restrictions. It also concluded that the benefits to enforcing the provision were outweighed by the detriment suffered by the Zubers. This appeal followed. Because Paterniti's two assignments of error challenge the propriety of the trial court's decision of the motions for summary judgment, they will be addressed together. The standard of review is de novo when the appeal is from a motion for summary judgment. Brown v. Scioto Cty. Bd. Of Commrs. (1993), 87 Ohio App.3d 704. Summary judgment may be granted only if no genuine issue of material fact exists. Id. At 711; Civ.R. 56(C). An issue is genuine only if the evidence is such that a reasonable jury could find for the non-moving party. Dresher v. Burt(1996), 75 Ohio St.3d 280; Wing v. Anchor Media, Ltd. (1991), 590 Ohio St.3d 108; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. The non-movant bears the burden of producing evidence on any issue for which that party has the burden of production at trial. Bostic v. Connor (1988), 37 Ohio St.3d 144. In this case the movant has identified the element of the non- movant's case which it avers does not raise a genuine fact for trial in accordance with Dresher v. Burt at 293. Specifically, the Zubers argue that Paterniti cannot show under the restrictive -5- covenant that Paterniti, a grantee, is entitled to enforce the restrictive covenant when the restrictive covenant applies only to the grantor, his successors, and assigns. The trial court reviewed this argument and held as a matter of law that Paterniti lacked standing to enforce the restrictive covenant against the Zubers. After reviewing the record, we agree with the trial court and conclude as a matter of law Paterniti lacks standing to enforce the restrictive covenant. Restrictions on land use are disfavored and should be strictly construed. Woodstream Dev. Co. v. Payak (1994), 93 Ohio App.3d 25, 27. Where the lot owner has notice of the restrictions and they are properly part of a general plan or scheme, such restrictions are enforceable. Id;Sprunk v. Creekwood Condominium Owners' Assn. (1989), 60 Ohio App.3d 52, 53. The Instrument Imposing Certain Restrictions Upon and Reserving Certain Rights Upon Property Situated in the Village of Independence contained the following language: THEREFORE, The American Construction Company, being the owner of all of the following enumerated lots, does hereby for itself, its successors and assigns impose upon and reserve out of each lot of [the Ranchland Subdivision] the following restrictions, rights, reserva- tions, limitations, agreements, covenants and conditions: *** No dwelling house shall be erected or suffered to remain on any residential lot unless the ridge of the roof is at least 13 feet and not more than 16 feet above the finished first floor. Paterniti, Ventura, and Zuber stated they were unaware of the deed restrictions at the time they bought their property. -6- (Paterniti Depo. at 17, 25, 73; Ventura Depo. at 4, 11, 19; Tr. 135.) However, all are chargeable with constructive notice of the restrictions contained in deeds filed and recorded in the County Recorder's office. See Schurenburg v. Butler City Bd. Of Elections (1992), 78 Ohio App.3d 773 (notice of restrictions can be actual or constructive). Furthermore, the roof height restriction appeared in all original deeds for lots in the Ranchland Homes Development. We reject Zuber's argument that the existence of a few two-story homes in the subdivision signaled a waiver of the restriction. The overwhelming majority of the homes were one-story ranch-style homes. In Pettey v. First National Bank of Geneva (1992), 167 Ill. Dec. 771, 588 N.E.2d 412, the court held that a minimal violation of a restrictive covenant does not extinguish the restriction unless the violation goes to the very substance of the restriction. No evidence was presented that any of the roofs on the two-story homes exceeded 16 feet. Accordingly, the existence of several two- story homes does not constitute a waiver of enforcement of the covenant. However, despite our conclusion that the restrictive covenant is valid as written, we conclude that Paterniti has no standing to enforce it. The evidence revealed that the current deeds to Paterniti's property and that of his co-plaintiff Ventura did not contain any reference to the restrictions. Paterniti argues that the restrictions were part of a general plan of development intended to benefit all property holders within the Ranchland Homes -7- subdivision and that he has standing to enforce the restrictions. See Lanier v. Lanier (1991), 73 Ohio App.3d 694, 698. In Berger v. Van Swearingen Co. (1966), 6 Ohio St.2d 100, 102, the Supreme Court held that a party for whose benefit a restrictive covenant was enacted may enforce it if he can show that the covenant was intended to be for his benefit, and that he has an equitable interest in compelling adherence to the covenant. Paterniti argues he is an assign of the original grantor and is entitled to enforce the restrictive covenant. The covenant provided that the restrictions were imposed for [the Grantor], its successors and assigns. There is no indication in the language of the covenant that the original grantor intended the covenant to be for the benefit of the individual grantees. Mere knowledge that there are restrictive covenants contained in the deeds from a common grantor, which covenants do not disclose that they are for the benefit of all other lot owners in the allotment, is not sufficient to vest in the plaintiff a right to enforce those restrictive covenants against another lot owner. Lopartkovich v. Rieger (1940), 66 Ohio App. 332, 336. The covenant refers to the grantor, his heirs and assigns but is conspicuously silent as to the rights of the grantees. Absent any indication that the grantor intended the covenant to be for the benefit of the grantees, we conclude that Paterniti lacked the requisite standing to enforce the restrictions. Accordingly, we affirm the decision of the trial court. -8- Judgment affirmed. -9- It is ordered that Appellees recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. Exceptions. ROCCO, J., CONCURS. DYKE, J., CONCURS IN JUDGMENT ONLY PATRICIA ANN BLACKMON PRESIDING Judge N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .