Roman v. Kalk , 2018 Ohio 2502 ( 2018 )

[Cite as Roman v. Kalk, 2018-Ohio-2502.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JOHN ROMAN, et al. C.A. No. 28712
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DANIEL KALK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV-2015-07-3575
DECISION AND JOURNAL ENTRY
Dated: June 27, 2018
CARR, Judge.
{¶1} Plaintiffs-Appellants John and Patricia Roman (“the Romans”) have attempted to
appeal from the judgment of the Summit County Court of Common Pleas. This Court dismisses
the attempted appeal for lack of jurisdiction.
I.
{¶2} This action involves a dispute between neighboring landowners in Hudson. The
parcels at issue, which are now known as permanent parcel numbers 30-02392 and 30-03773,
were previously owned as one property. Parts of those parcels contained an area that was used as
a pet cemetery. In 1989, a Declaration of Restrictions was recorded which placed certain
restrictions on portions of the parcels. The purpose of the restrictions was to limit a portion of
the parcels for use as a pet cemetery in accordance with R.C. 961.02. According to the
document, the restricted land “shall be held, used, occupied and conveyed only for such purposes
as are usual and normal for the operation of a pet cemetery.” It further states that “[t]his
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Declaration is being made in accordance with [R.C.] 961.02 * * * and the restrictions herein
imposed shall be deemed a covenant and not a condition and shall run with the land and shall
bind all owners, and may be removed only as provided in [R.C.] 961.05 * * *.”
{¶3} In 2012, Defendant-Appellee Friends of Pet Cemetery Association (“FOPCA”)
purchased permanent parcel number 30-03773 and in 2014, the Romans purchased permanent
parcel number 30-02392. Prior to the Romans’ purchase of parcel 30-02392, in 2014,
Defendant-Appellee Daniel Kalk, the president of FOPCA, filed an “Affidavit of Facts Relating
to Title[.]” That document indicated that a little over 4.25 acres was encumbered by the 1989
Declaration of Restrictions and that .25 acres of that encumbered land was located on parcel 30-
02392; the parcel now owned by the Romans. The document also states that two buildings
straddle the boundary line between the two parcels and notes that there are gravesites on the
property now owned by the Romans. The two buildings mentioned in the affidavit appear to be a
barn and an office.
{¶4} In 2015, the Romans filed a complaint against FOPCA and Mr. Kalk. In the first
count, the Romans sought to remove the deed restriction from two portions of the restricted area
of their parcel pursuant to R.C. 961.05. In the second count, the Romans sought removal of Mr.
Kalk’s affidavit, which they asserted contained false information. Count three contained a claim
for trespass and count four sought an injunction, alleging FOPCA had violated various laws,
including those involving the disposal and burial of dead animals. In count five, the Romans
sought a declaratory judgment related to the ownership of a barn that is located on the boundary
of the two parcels. The Romans sought a declaration that they owned the entire barn and
possessed an easement over the adjacent property for access, use, and maintenance of the barn.
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{¶5} FOPCA and Mr. Kalk answered the complaint and FOPCA filed a counterclaim
seeking declaratory judgment. FOPCA sought the following declarations:
1. A Declaration that a real controversy, justiciable in nature exists between
Plaintiffs and FOPCA, for which speedy relief is necessary to the preservation of
rights that may otherwise be impaired, and to terminate the uncertainty or
controversy giving rise to this Counterclaim;
2. A Declaration by this Court the Declaration of Restrictions is valid,
enforceable, and applicable to Parcel 30-02392;
3. A Declaration by this Court that FOPCA has a right, license, easement, or legal
entitlement permitting FOPCA to have unrestricted access to the portion of
Plaintiff’s property subject to the Declaration of Restrictions for pet cemetery
purposes;
4. A Declaration by this Court that the office building located on Plaintiff’s land
may be used for no purpose other than for pet cemetery purposes;
5. A Declaration by this Court that the barn partially located on Plaintiff’s land
may be used for no purpose other than for pet cemetery purposes;
6. A Declaration by this Court that FOPCA is the owner of the portion of the barn
located on parcel 30-03773;
7. A Declaration by this Court that no graves on restricted lands be disturbed;
8. A Declaration by this Court that the portion of parcel 30-2392 that is covered
by the Declarations of Restrictions can be used by Plaintiffs only for pet cemetery
purposes;
9. A Declaration by this Court that neither Plaintiffs nor their successors or
assigns are entitled to removal of all or any portion of the Declaration of
Restrictions unless Plaintiffs are able to comply with Chapter 961 of the Ohio
Revised Code in all respects;
10. A Declaration that Plaintiffs do not operate a pet cemetery.
{¶6} Thereafter discovery disputes ensued, including one involving information related
to gravesites located on the Romans’ property. Ultimately, the trial court ruled that FOPCA and
Mr. Kalk would have to produce the information to the court for an in camera review and
preservation of the record. The trial court indicated that the protective order put in place by the
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magistrate would remain in place, noting that it could be lifted upon the demonstration of the
applicability of the information to the litigation. Subsequently, the trial court did order the
release of certain portions of the information it received in camera.
{¶7} The Romans filed a motion for summary judgment on counts one through three of
their complaint and FOPCA and Mr. Kalk filed a motion for summary on all counts of the
Romans’ complaint. In addition, FOPCA filed a motion for summary judgment on its
counterclaim. The trial court denied the Romans’ motion for summary judgment and granted
FOPCA’s and Mr. Kalk’s motion for summary judgment on the complaint. Additionally, the
trial court granted FOPCA’s motion for summary judgment on its counterclaim. In the entry, the
trial court included a certification pursuant to Civ.R. 54(B).
{¶8} The Romans have appealed, raising five assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING THE ROMANS’ MOTION FOR
SUMMARY JUDGMENT AND IN GRANTING FOPCA’S MOTION FOR
SUMMARY JUDGMENT[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN FINDING THAT FOPCA HAD AN IMPLIED
EASEMENT, AND THE DECISION, AS WRITTEN, CONSTITUTES AN[]
IMPROPER TAKING[.]
ASSIGNMENT OF ERROR III
THE TRIAL COURT’S DECISION SHOULD BE OVERTURNED BECAUSE
IT VIOLATES THE STATUTE OF FRAUDS[.]
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN UPHOLDING R.C. [] 961, WHICH SHOULD
BE DEEMED VOID FOR VAGUENESS[.]
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ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN STRIKING MOTIONS AND IN
PREVENTING THE ROMANS FROM CONDUCTING PROPER
DISCOVERY.
{¶9} Before addressing the Romans’ assignments of error, we pause to address whether
we have jurisdiction over this matter.
{¶10} This Court is obligated to raise sua sponte questions related to our jurisdiction.
Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St. 2d 184, 186 (1972). “This Court
has jurisdiction to hear appeals only from final judgments. In the absence of a final, appealable
order, this Court must dismiss the appeal for lack of subject matter jurisdiction.” (Internal
quotations and citations omitted.) Miller Lakes Community Servs. Assn. v. Schmitt, 9th Dist.
Wayne No. 09CA0076, 2011-Ohio-1295, ¶ 12.
{¶11} R.C. 2721.02(A) addresses declaratory judgment actions and states, in relevant
part, that “courts of record may declare rights, status, and other legal relations whether or not
further relief is or could be claimed. * * * The declaration may be either affirmative or negative
in form and effect. The declaration has the effect of a final judgment or decree.” “In declaratory
judgment actions, merely entering judgment in favor of one party, without further elaboration,
does not constitute a final judgment sufficient to give this Court jurisdiction over an appeal. If
the trial court fails to expressly declare the parties’ respective rights and obligations, its judgment
is not final and appealable.” (Internal quotations and citations omitted.) Gargasz v. Lorain Cty.,
9th Dist. Lorain No. 12CA010215, 2013-Ohio-1218, ¶ 6. “[I]n order to properly enter judgment
in a declaratory judgment action, the trial court must set forth its construction of the disputed
document or law, and must expressly declare the parties’ respective rights and obligations. If the
trial court fails to fulfill these requirements, its judgment is not final and appealable.” (Internal
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quotations and citations omitted.) Miller Lakes Community Assn. v. Schmitt, 9th Dist. Wayne
No. 11CA0053, 2012-Ohio-5116, ¶ 8. If the trial court only partially declares the rights and
obligations of the parties, the trial court fails to resolve the claim for declaratory judgment. See
id. at ¶ 11-12.
{¶12} As noted above, the Romans sought a declaration that they owned the entire barn
and possessed an easement over the adjacent property for access, use, and maintenance of the
barn. Whereas, FOPCA sought the following declarations in its counterclaim:
1. A Declaration that a real controversy, justiciable in nature exists between
Plaintiffs and FOPCA, for which speedy relief is necessary to the preservation of
rights that may otherwise be impaired, and to terminate the uncertainty or
controversy giving rise to this Counterclaim;
2. A Declaration by this Court the Declaration of Restrictions is valid,
enforceable, and applicable to Parcel 30-02392;
3. A Declaration by this Court that FOPCA has a right, license, easement, or legal
entitlement permitting FOPCA to have unrestricted access to the portion of
Plaintiff’s property subject to the Declaration of Restrictions for pet cemetery
purposes;
4. A Declaration by this Court that the office building located on Plaintiff’s land
may be used for no purpose other than for pet cemetery purposes;
5. A Declaration by this Court that the barn partially located on Plaintiff’s land
may be used for no purpose other than for pet cemetery purposes;
6. A Declaration by this Court that FOPCA is the owner of the portion of the barn
located on parcel 30-03773;
7. A Declaration by this Court that no graves on restricted lands be disturbed;
8. A Declaration by this Court that the portion of parcel 30-2392 that is covered
by the Declarations of Restrictions can be used by Plaintiffs only for pet cemetery
purposes;
9. A Declaration by this Court that neither Plaintiffs nor their successors or
assigns are entitled to removal of all or any portion of the Declaration of
Restrictions unless Plaintiffs are able to comply with Chapter 961 of the Ohio
Revised Code in all respects;
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10. A Declaration that Plaintiffs do not operate a pet cemetery.
{¶13} The trial court, in its judgment entry ruling on FOPCA’s counterclaim, did make
some of the declarations FOCPA sought in its counterclaim. The trial court found the 1989
Declaration of Restrictions to be valid and enforceable, found that FOPCA had an implied
easement over the .25 acres of the Romans’ property encumbered by the deed restriction for the
operation of a pet cemetery, found that FOPCA was entitled to access the .25 acres of the
Romans’ property for purposes of operating the pet cemetery, found that the Romans’ were
bound by the restrictions as written, and found that the Romans were not operators of the pet
cemetery.
{¶14} In granting summary judgment to Mr. Kalk and FOPCA on count five of the
complaint and in concluding that the Romans could not succeed on their request for declaratory
judgment, the trial court stated that,
[u]pon review, the Court finds that evidence does exist to support Plaintiffs’ claim
that they are the sole owners of the barn in question. However, the evidence
further establishes that any portion of the barn located on Plaintiffs’ property is
also located in the restricted area. Accordingly, Plaintiffs may only utilize the
barn in a manner consistent with the deed restriction. Plaintiffs have admitted that
they do not operate a pet cemetery and, therefore, Plaintiffs have no reason or
right to access, use or maintain the barn for pet cemetery purposes. The Court
finds Plaintiffs cannot prevail on their request for declaratory judgment as to the
barn, and Defendants’ request for summary judgment on this issue is granted.
{¶15} From this, it appears that the trial court found that the Romans were not entitled to
an easement to access the portion of the barn on FOPCA’s property and that the barn must be
used for pet cemetery purposes. However, it is unclear whether the trial court found the Romans
to be the sole owners of the barn. The trial court stated there was evidence that the Romans were
the sole owners of the barn but it also found that the Romans could not succeed on their requests
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for declaratory relief, despite one of the requests being a declaration that the Romans owned the
entire barn.
{¶16} If the trial court did find that the Romans owned the entire barn, then the trial
court also would have resolved FOPCA’s request for a declaration that FOPCA owned the
portion of the barn on its property. However, if the trial court instead found that the Romans did
not own the entire barn, FOPCA’s claim for declaratory relief with respect to ownership of the
barn would not be resolved.
{¶17} After carefully considering the entire judgment entry, we cannot say that the trial
court fully and expressly declared the rights and obligations of the parties. See Miller Lakes
Community Assn., 2012-Ohio-5116, at ¶ 12. The trial court’s entry does not mention the office
building (see FOPCA’s request 4), it does not indicate whether the restricted area of the Romans’
property can be used by the Romans for any purpose other than pet cemetery purposes (see
FOPCA’s request 8), or address whether the graves in the restricted area can be disturbed (see
FOPCA’s request 7). Accordingly, the trial court failed to fully resolve the counterclaim for
declaratory relief. Additionally, while it appears that the trial court attempted to resolve count
five of the complaint, it did not fully do so. Thus, this Court lacks jurisdiction over issues related
to the counterclaim for declaratory relief and count five of the complaint.
{¶18} Nonetheless, the trial court did insert Civ.R. 54(B) language into its entry, and,
thus, we must examine whether a portion of the appeal can be addressed. Pursuant to Civ.R.
54(B):
When more than one claim for relief is presented in an action whether as a claim,
counterclaim, cross-claim, or third-party claim, and whether arising out of the
same or separate transactions, or when multiple parties are involved, the court
may enter final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just reason for delay.
In the absence of a determination that there is no just reason for delay, any order
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or other form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties, shall not
terminate the action as to any of the claims or parties, and the order or other form
of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.
{¶19} The use of Civ.R. 54(B) language can transform a final order into a final
appealable order. See Wisintainer v. Elcen Power Strut Co., 67 Ohio St. 3d 352, 354 (1993). “In
deciding that there is no just reason for delay, the trial judge makes what is essentially a factual
determination – whether an interlocutory appeal is consistent with the interests of sound judicial
administration, i.e., whether it leads to judicial economy.” Id. at 355. “[W]here the record
indicates that the interests of sound judicial administration could be served by a finding of ‘no
just reason for delay,’ the trial court’s certification determination must stand.” Id. “Trial courts,
however, should be careful not to breach the duty entrusted to them, and should avoid a
mechanical application of the Civ.R. 54(B) language.” Id.
{¶20} Here, in light of our conclusion that the counterclaim for declaratory relief has not
been resolved and count five of the complaint has not been fully resolved, we cannot say that an
interlocutory appeal in this matter would lead to judicial economy. It is apparent that the trial
court thought it had resolved the entire action and thus, the insertion of Civ.R. 54(B) language
was mechanical or reflexive. See Wisintainer at 356. As the majority of the issues relate in
some way to the counterclaim for declaratory relief, we see no basis in concluding that judicial
economy is served by the trial court’s certification.
III.
{¶21} The attempted appeal is dismissed.
Appeal dismissed.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
CHRISTOPHER A. TIPPING and KATHLEEN A. HAHNER, Attorneys at Law, for Appellants.
CARL E. PATRICK, Attorney at Law, for Appellants.
DONALD G. DRINKO, RICHARD C.O. REZIE, and JOSEPH MONROE, Attorneys at Law,
for Appellees.