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Board of Trustees of Washington Township v. Ryan

Court of Appeals of Ohio, Second District

September 20, 2013

BOARD OF TRUSTEES OF WASHINGTON TOWNSHIP, et al. Plaintiff-Appellee
v.
JAMES E. RYAN, et al. Defendants-Third Party Plaintiff-Appellants

Civil appeal from Common Pleas Court T.C. NO. 11CV2138

JOSHUA R. SCHIERLOH, Atty. Reg. No. 0078325, Attorney for Plaintiff-Appellee Washington Township.

DAVID C. GREER, Atty. Reg. No. 0009090 and KIRSTIE N. YOUNG, Atty. Reg. No. 0084007, Attorneys for Third Party Defendants-Appellees Lillian Mapp, Chris Welch and Tim Welch, Joan Mantil and Joe Mantil, Joyce Koller and Floyd Koller, Mary Mathews and David Mathews, Shan Kilian and Steve Kilian, Linda Giffen and Dan Giffen, Karissa Acred and Jeff Acred.

JAMES K. HEMENWAY, Atty. Reg. No. 0040859, Attorney for Third Party Defendants-Appellees Carin Solganik and Tom Silverii.

ROBERT S. FISCHER, Atty. Reg. No. 0071640, Attorney for Defendants-Third Party Plaintiffs-Appellants James and Connie Ryan.

DAVID EIDELBERG, Atty. Reg. No. 0040530, Attorney for Third Party Defendant-Appellee Allstate Insurance Company.

DEAN and CARRIE HINES, Third Party Defendants-Appellees.

OPINION

FROELICH, J.

(¶ 1} James E. and Connie Ryan appeal from two judgments of the Montgomery County Court of Common Pleas, which related to the Ryans' use of and/or failure to maintain property they owned at 6088 Mad River Road. The first judgment granted summary judgment against the Ryans and in favor of Washington Township on the Township's claim for an injunction and for abatement of a nuisance on the Ryans' property. The second judgment granted summary judgment against the Ryans and in favor of the the Ryans' neighbors on the Ryans' claims for breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, intentional interference with use and enjoyment of property, conversion, and negligence, all of which related to responsibility for the maintenance of a bridge on the private lane by which the Ryans accessed their home.

(¶ 2} For the following reasons, the judgment of the trial court in favor of the Lane Association on the Ryans' breach of contract claim will be reversed, and this matter will be remanded for further proceedings. Summary judgment on the Ryans' claims for breach of fiduciary duty, intentional infliction of emotional distress, intentional interference with use and enjoyment of property, conversion, and negligence is affirmed. The judgment in favor of the Township will also be affirmed.

(¶ 3} Additionally, we note that the trial court erroneously "overruled" a purported motion for summary judgment by one of the Ryans' neighbors (Carin Solganik) against the neighborhood association for breach of contract, as no such claim existed and no such motion had been made. Rather, Solganik had asserted claims for contribution and diminution in value against the Ryans, and had filed a motion for summary judgment on these claims. The trial court erred in failing to address these claims.

Facts and Procedural History

(¶ 4} Mad River Lane[1] is a private drive off of Mad River Road in Washington Township, along which eleven houses were built. Two parcels at the end of the lane were accessible to vehicles only via a bridge.

(¶ 5} Prior to the formation of the Lane Association (described below), both of the parcels located beyond the bridge were owned by David and Patricia Lehman. The Lehmans had acquired their property from Frank and Nancy Zoringer in 1981, and the Lehmans were among the signatories to the Lane Association agreement. The deed to the Zoringers' property described two parcels (1 and 2) and four easements (A, B, C, and D). The deed also contained a restrictive covenant which provided that the Grantors, "and by acceptance of this deed, Grantees, each agree that the roadway including the bridge * * * located on Easements A and B * * * shall be maintained, repaired and replaced, if necessary, by Grantees so long as they are the owners of Parcel 1 and thereafter by the subsequent owner(s) thereof" The restrictive covenant further provided that the maintenance, repair or replacement of the roadway described in the easements would be shared proportionately by the owners of all dwellings located on Parcel 1 at that time or thereafter, in proportion to the length of the roadway over which access was provided. The property was conveyed by the Zoringers to the Lehmans subject to all easements, restrictions, covenants, maintenance requirements, and zoning restrictions.

(¶ 6} For many years, the residents of the lane maintained it pursuant to an informal agreement.[2] In 1986, amid concerns about the potential for additional development in the vicinity, the owners of the properties agreed to formalize their existing arrangement of contributing to the maintenance of the road and, additionally, to restrict future use of the road and/or its extension for use by adjacent landowners. Thus, the "Lane Association" was formed in 1988. The members agreed that they would "bear the proportionate cost of maintenance, repair, and clearing ...


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