Posted by: Patricia Salkin | February 24, 2017

OH Appeals Court Denies Motion to Vacate Injunction on Construction of Playhouse

The Wieners resided in The Steeplechase, a residential development in the City of Munroe Falls, and were therefore subject to The Steeplechase’s restrictions and the City’s ordinances. One of the development’s restrictions provides that “any unattached storage buildings, outbuildings, accessory buildings, sheds, barns, etc.” is prohibited in the development. Additionally, the general provisions in the restrictions stated: “failure of The Steeplechase to enforce any of the restrictions contained herein, shall in no event be construed to be in a waiver of, acquiescence in, or consent to a further or succeeding violation of these restrictions.” The City’s ordinances required a zoning certificate be obtained prior to construction of any building or structure. Despite this, the Wieners commenced construction of a playhouse in the backyard of their property. After the City’s zoning inspector issued the Wieners a warning, the City issued a stop-work order. In September 2012, the City and its Law Director, filed a complaint against the Wieners, requesting an injunction and nuisance abatement based upon the Wieners’ failure to obtain a zoning certificate for building the playhouse. The trial court denied the Wieners’ motion to vacate, as well as the Wieners’ civil conspiracy claim.
On appeal, the Wieners first alleged that the trial court erred in granting summary judgment to the City and the HOA on the Wieners’ civil conspiracy claim. The trial court concluded that summary judgment was properly granted to the City and the HOA on the Wieners’ civil conspiracy claim because the complaint failed to allege an underlying unlawful act. The Wieners argued that the underlying tort supporting civil conspiracy did not have to be separately alleged as a claim in the complaint, but, could be alleged within the civil conspiracy claim itself. The court found that even if the Wieners’ underlying tort claims were accepted by the court, the City and the HOA were legally entitled to attempt to prevent construction of the playhouse. Accordingly, the court held that the City and the HOA met their initial summary judgment burdens with respect to the civil conspiracy claims.
Next, the court that even if the civil conspiracy claim could be based upon the underlying action of a “taking,” the court could not ascertain in what way prohibition of the construction of the playhouse resulted in a deprivation of their property rights so as to amount to a taking. With respect to slander of title, the Wieners failed to show any evidence that the HOA was involved in any special assessments. Moreover, the special assessments in question were levied after the Wieners filed their civil conspiracy claim, and could not therefore serve as the predicate tort giving rise to the civil conspiracy claim.
The Wieners lastly contended that the trial court erred in concluding that the HOA was entitled to summary judgment on the issue of whether the restrictions were waived. Here, however, the HOA pointed to the general provisions in the restrictions, which include the following language: “failure of The Steeplechase to enforce any of the restrictions contained herein, shall in no event be construed to be in any manner a waiver of, acquiescence in, or consent to a further or succeeding violation of these restrictions.” In their argument, the Wieners failed to allege any affirmative act by the HOA through which it could be said to have waived this non-waiver provision. Accordingly, the Wieners’ assignments of error were overruled.
State of Ohio v Weiner, 2017 WL 422357 (OH App. 1/31/2017)


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