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Roman v. Kalk

Court of Appeals of Ohio, Ninth District, Summit

June 27, 2018

JOHN ROMAN, et al. Appellants
v.
DANIEL KALK Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2015-07-3575

          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.

          DECISION AND JOURNAL ENTRY

          DONNA J. 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 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.

         {¶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 Plaintiffs property subject to the Declaration of Restrictions for pet cemetery purposes;
4. A Declaration by this Court that the office building located on Plaintiffs 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 Plaintiffs 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 ...

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