[Cite as Holiday Haven Members Assn. v. Paulson , 2014-Ohio-3902.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

HOLIDAY HAVEN MEMBERS, ASSOCIATION, INC. : Plaintiff-Appellant/ : Cross-Appellee, Case No. 13CA13 : vs. : KENNETH PAULSON, et al., DECISION AND JUDGMENT ENTRY : Defendants-Appellees/ Cross-Appellants. :

_________________________________________________________________ APPEARANCES:

COUNSEL FOR APPELLANT/ CROSS-APPELLEE: Raymond R. Michalski, 1 222 South Broad Street, Lancaster, Ohio 43130

COUNSEL FOR APPELLEES/ CROSS-APPELLANTS: James R. Kingsley, 157 West Main Street, Circleville, Ohio 43113

________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 9-8-14 ABELE, P.J. {¶ 1} This is an appeal and a cross-appeal from a Hocking County Common Pleas Court judgment in favor of Kenneth Paulson and Emily Paulson (Paulsons), defendants below and appellees herein, on the claims brought ag ainst them by the Holiday Haven Members Association, Inc. (Holiday Haven), plai ntiff below and appe llant herein.

1 Attorney for appellant/cross-appellee, Raymond R. Michalsk i, was granted leave to with draw as counsel on March 21, 2014, after the filing of appellate briefs.[Cite as Holiday Haven Members Assn. v. Paulson , 2014-Ohio-3902.] {¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DECLARING THAT THE APPELLANT HAS NO STANDING AND IS NOT THE REAL PARTY IN INTEREST FOR THE ASSESSMENT AND COLLECTION OF COSTS FOR MAINTAINING THE PRIVATE ROADS IN THE SUBJECT SUBDIVISION OVER WHICH THE APPELLEES HAVE AN EASEMENT FOR INGRESS AND EGRESS.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DECLARING THAT THE APPELLEES ARE NOT LIABLE FOR THE PAYMENT OF ASSESSMENTS FOR THE COST OF MAINTAINING THE PRIVATE ROADS IN THE SUBJECT SUBDIVISION OVER WHICH THE APPELLEES HAVE AN EASEMENT FOR INGRESS AND EGRESS.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DECLARING THAT THE APPELLANT HAS NO STANDING AND IS NOT THE REAL PARTY IN INTEREST FOR THE PURPOSE OF REVIEWING AND APPROVING OR DISAPPROVING PLANS AND SPECIFICATIONS FOR IMPROVEMENTS TO BE CONSTRUCTED ON LOTS IN TH E SUBJECT SUBDIVISION.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DECLARING THAT THE APPELLEES ARE PERMITTED TO CONSTRUCT A RESIDENCE ON THEIR LOTS IN THE SUBJECT SUBDIVISION WITHOUT FIRST SUBMITTING THE PLANS AND SPECIFICATIONS FOR SUCH AN IMPROVEMENT TO APPELLANT FOR APPROVAL.” The Paulsons also assign the following the cro ss-assignment of error for consideration:

“DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT DID NOT QUIET TITLE?”HOCKING, 13CA13 3

{¶ 3} Various members of the Hines family owned acreage in Perry Township that they eventually transferred to Holiday Industries, Inc. (Holiday, Inc.), a corporation whose principal was Lawrence Hines (Hines). Holiday, Inc. cr eated Holiday Haven, a residential subdivision platted in separate stages dur ing the 1960s and 1970s. On November 9, 1973, Holiday Inc. filed a plat map for Holiday Haven No. 8 that contains the properties at the center of this dispute. That map contained the following deed rest rictions for lots within the section:

“ * * * 2. No building shall be erected on any of said lots other than one singe family dwelling or cottage with garage without permission. 3. No structure of a temporary nature, trailer, basement, tent, shack, garage, or other out-building shall be used on any lot at any time as a residence either temporary or permanent except by written permission of the sellers herein.

* * * 6. No building shall be erected on any lot until the plans and specifications theretofore have been approved in writing by the sellers herein.”

{¶ 4} On November 23, 1972, the Paulsons acqui red lot one-hundred eight (108) from Holiday, Inc. Subsequently, A ppellant Kenneth Pauls on conveyed his one-half interest in that lot to his wife. In 1985, Appe llant Kenneth Pauls on acquired lots one hundred four and one hundred five (104 & 105) from Holiday, Inc.

{¶ 5} Although Hines, as principal for Holiday, Inc., initially mainta ined the properties including upkeep and the approval of building pl ans, the work eventually became overwhelmingHOCKING, 13CA13 4 and Hines encouraged the residents to form an a ssociation to take over for Holiday, Inc. As a result, Holiday Haven incorporated in 1994. Its bylaws provided, inter a lia, that the Board of Trustees could (1) “enforce the cove nants, conditions and restrictions applicable to the lots . . .,” (2) “repair, maintain and improve the private roads” of the community,” and (3) “levy and collect assessments” to pay for maintenance of those roads. {¶ 6} On December 13, 1994, Holiday, Inc., by and through Hines, its president, transferred some property to the homeowners a ssociation. However, that transfer did not include Holiday Haven No. 8 where the Paulsons ow n three lots. Over the years, Holiday Haven grew to include fifty-five members. Also, at the time of the trial court proceedings some thirteen additional property owne rs who, although not actual memb ers of the association, paid

dues for road maintenance. The Paulsons are not members of Holiday Haven and they did not voluntarily donate to the homeowners association. {¶ 7} At first, Holiday Haven did not bill the Paulsons for road maintenance under the belief they had no right to do so. Subsequen tly, on counsel's advice, they began to send invoices. The Paulsons, believing that they ar e not bound by covenants to which they did not agree, refused to pay Holiday Haven and did not seek approval for plans to build structures on

lots 94 & 95. {¶ 8} On April 6, 2011, Holiday Haven commenced the instant action and alleged, inter alia, that the Paulsons (1) are in default of payment of road maintenance fees, and (2) did not receive approval for construction on lots 94 & 95. Holiday Haven sought an injunction against further construction, as well as da mages for unpaid road maintenan ce fees. The Paulsons denied liability and counterclaimed for qui et title to their premises. Holiday Haven denied liabilityHOCKING, 13CA13 5 under the counterclaim. {¶ 9} At the February 11, 2013 trial to the court, the evidence showed that the Paulsons did not pay any assessments for road mainte nance, nor did they seek approval for the

construction of structures. Th e trial court issued a detailed, twelve page opinion that ruled against Holiday Haven on its claims, and in favor of the Paulsons on the majority of their counterclaims. First, the trial c ourt concluded that Holiday Haven is not the real party in interest and has no standing to bring this action. Th e court reasoned that no evidence shows that Holiday, Inc. transferred Holiday Haven No. 8 to the homeowners association. Thus, Holiday, Inc. still owned the property and Holiday Haven lacked standing to enforce the plat restrictions. Moreover, even if it did have st anding, the trial court found nothing in the plat restrictions to

allow the homeowners association to assess road ma intenance fees. Further, the court found that the placement of a modular home di d not violate the plat restrictions. Finally, the court ruled that it would “quiet” the Paulsons’ title as to “road assessments,” but would not do so as to the

“restrictions.” 2 This appeal followed. 3

I {¶ 10} We begin by noting our agreement with th e trial court that the “Declaration of Covenants, Conditions, and Rest rictions” of the Holiday Have n Community” (Declaration) has no bearing on this action. Mike Roth, Holiday Ha ven president at the time of the trial court

2 The trial court was unclear what it meant by “restrictions,” but we presume it refers to those restrictions included in the 1973 plat map.

3 The trial court’s June 4, 2013 judgment contained a "no just reason for delay" determination. However, in light of the court's determination in the previous sentence that overrule d all other claims or counterclai ms not already decided, we are not sure why the court included this language in its judgment.HOCKING, 13CA13 6 proceedings, conceded that the Paulsons were not a signatory to the Declaration, nor were they

members of the homeowners association. {¶ 11} A homeowners association agreement is, in essence, a contract. See O'Bannon Meadows Homeowners Assn., Inc. v. O'Bannon Properties, L.L.C. , 12 th Dist. Clermont No. CA2012– 10–073, 2013-Ohio-2395, at ¶19; also see Lisy v. Mayfair Estates Homeowners Assn. , 9 th Dist. Summit No. 25392, 2012-Ohio-68, at ¶29 (Dicki nson, J., Concurring in Part). Also, a party must be a party to a contract to be bound by that contract. See, generally, State v. Jackson , 12 th Dist. Butler No. CA2011–06–096, 2012-Ohio-4219, at ¶12 (“When a county prosecutor is not a party to a plea agreement, he or she is not bound by the terms of that agreement.”); N. Park Retirement Community Ctr., Inc. v. Sovran Cos., Ltd. , 8 th Dist. No. 96376, 2011-Ohio-5179, at ¶17 (“***agreements to arbitrate are matters of contract, a person who was not a party to an arbitration agreement cannot be forced to arbitrate.”). {¶ 12} Because the Paulsons did not sign the Declaration, nor are they members of Holiday Haven, they cannot be he ld liable under the terms of the Declaration. Thus, we fully agree with the trial court that if the Paulsons could be liable to Holiday Haven, it must be under some actual servitude imposed on thei r land rather than the Declaration.

II {¶ 13} We jointly consider Holiday Haven’s first and third assignments of error that involve standing to bring the action. The homeo wners association correctly states that our standard of review is de novo, but that is not b ecause the remedy is a declaratory judgment (as Holiday Haven argues in its brief), but rather becau se a determination of standing is a question of

law. See HSBC Bank USA, Natl. Assn. v. Bailey , 11 th Dist. Trumbull No. 2012–T–0086,HOCKING, 13CA13 7 2014-Ohio-246, at ¶43; Bank of New York Mellon v. Blouse , 12 th Dist. Fayette No. CA2013–02–002, 2013-Ohio-4537, at ¶5; Johnson Invest. Group, L.L.C. v. Marcum , 2 nd Dist. Greene No. 2012CA65, 2013-Ohio-3175, at ¶18. De novo appellate review means that we

afford no deference to a trial court’s decision and, instead, conduc t our own, independent review

of the evidence. See Wells Fargo Bank, N.A. v. Odita , 10 th Dist. Franklin No. No. 13AP–663, 2014-Ohio- 2540, at ¶8. For the following reasons, we agree with the trial court's conclusion in

this matter. {¶ 14} In the case at bar, it is clear that Holid ay, Inc. platted Holiday Haven No. 8 and that Holiday, Inc. is the grantor of the Paulsons ' three lots. A plat map is one device used to

create use restrictions on real estate. Middle Road Developers, L.C. v. Windmiller Design and Development Co. , 746 N.W.2d 279 (IA.App. 2008). The purpose of a plat is to facilitate the sale of property in accordance with the term s and conditions of that plat. See C & D Partnership v. City of Gahanna , 10 th Dist. Franklin No. 82AP-919, 1983 WL 3718 (Oct. 6, 1983) (Whiteside, J. Concurring). As such, Holiday, Inc., or its successor-in-interest, is the only party that may enforce the covenant. Here, the 1994 deed from Holiday, Inc. to Holiday Haven, as the trial court correctly notes, is insufficient to make the homeowner’s association its successor-in-interest over Holiday Haven No. 8. That deed transf erred two tracts of land: the first in “Section 34" of “Township 13" and “S ection 3" of “Township 12,” and the second in “Section 3" of “Township 12.” The plat map show s that Holiday Haven No. 8 is in “Section 33" of “Township 13.” In short, the Paulsons' lo ts are not included in the 1994 deed and Holiday Haven is not a party with the requisite st anding to enforce th e plat restrictions. {¶ 15} Holiday Haven does not contest the fact th at the 1994 deed did not cover the lotsHOCKING, 13CA13 8 at issue, but argues that the trial court impr operly ignored two other documents. The Paulsons answered on April 25, 2011 and raised the defense th at Holiday Haven did not have standing to bring this action. The next day, Hines, as the Holiday, Inc. president, executed a “Ratification And Reaffirmation of Assignment” (Ratification Agreement) that states, inter alia, that the 1994 deed “was intended not only to convey the real esta te described therein but also to assign to the Association all of the rights a nd responsibilities of the grantor . . .under the subject covenants” of all eight sections of the subdivision. Two days la ter, Hines filed an “Affi davit Of Facts” with the Hocking County Recorder and stated, in essence, the same information. {¶ 16} In its June 4, 2013 decision and judgment, the trial court stated that it would “disregard” these two instruments and the cas e would be decided on the 1994 deed. Holiday Haven argues that this constitutes error. We, however, readily agree with the trial court. {¶ 17} R.C. 5301.252(B) states the following with re gard to an “affidavit of facts” filed with a county recorder: “(B) The affidavits provided for under this section may relate to the following matters: (1) Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marriage, residence, or service in the armed forces; (2) Possession; (3) The happening of any condition or event that may create or terminate an estate or interest; (4) The existence and location of monum ents and physical boundaries, such as fences, streams, roads, and rights of way; (5) In an affidavit of a registered surveyor, facts reconciling conflicts and ambiguities in descriptions of land in recorded instruments.”[Cite as Holiday Haven Members Assn. v. Paulson , 2014-Ohio-3902.] Here, the “Affidavit of Facts” meets none of thes e criteria and Holiday Haven cites no authority to support the proposition that either of these docum ents should have been afforded any weight. We emphasize that neither the Ratification Agreement nor the Affidavit of Facts was filed to resolve some ambiguity in the conveyance. In stead, those filings added provisions to the 1994 deed that were not initially included. Genera lly, outside evidence cannot be introduced to contradict or change the meaning of a deed. Robbins v. Cray , 2 nd Dist. Miami No. 345, 1935 WL 1930 (May 2, 1935). Moreover, even if that were not the case, this case was tried to the court. Thus, the trial court served as the trier of fact and issues of evidence weight and credibility are generally left to the trier of fact to decide. See Grimes v. Grimes , 2012-Ohio-3562, 975 N.E.2d 496, at ¶28 (4 th Dist.); Portco v. Eye Specialists, Inc. , 177 Ohio App.3d 139, 2008-Ohio- 3154, 894 N.E.2d 84, at ¶17 (4 th Dist.). Here, the tr ial court gave no credence to the self-serving Ratification Agreement or to th e Affidavit of Facts, and we will not second-guess its decision. {¶ 18} Finally, we note that a half century ago th e Ohio Supreme Court spoke to the issue of standing to enforce a restric tive covenant on land. “If the rest rictive covenant was enacted for the benefit of the one seeking to enforce it, he may do so, but the burden is upon him to show that such covenant restricting the us e of the lands of another was intended to be for his benefit , and that he has an equitable intere st in the other person's adheren ce to the covenant.” (Emphasis added.) Berger v. Van Sweringen Co. , 6 Ohio St.2d 100, 102, 216 N.E.2d 54 (1966). This principle continues to be applied today. See e.g. Baker v. Adams , 3 rd Dist. Logan No. 8-05-17, 2006-Ohio-3232, at ¶11. In the case sub judice, Ho liday Haven has not, a nd cannot, satisfy this standard. The plat restrictions for Holiday Haven No. 8 were f iled in 1973. Two decades later,

the homeowners’ association was formed. Holid ay Haven cannot claim th at it was the intendedHOCKING, 13CA13 10 beneficiary of the plat restrictions when it did not exist until twenty years later. {¶ 19} Thus, for these reasons, we agree with the trial court that Holiday Haven lacked standing to enforce the plat re strictions. Accordingly, we find no merit to the first and third assignments of error and they are hereby overruled.

III {¶ 20} In its second and fourth assi gnments of error, Holiday Ha ven aruges that the trial court erred by ruling that it could not (1) co llect assessments from the Paulsons for road maintenance, and (2) require the Paulsons to submit building plans before they erect a structure on the properties. We realize that the trial court issued these rulings in the alternative, assuming that the homeowners association actually had sta nding. However, having ruled that the trial court correctly concluded that the homeowners association did not have standing to bring this action, any decision on these issues would amount to an advisory opinion. See, generally, Tewksbury v. Tewksbury , 194 Ohio App.3d 603, 2011-Ohio-3358, 957 N.E.2d 362, at ¶13;

Dolan v. Glouster , 4 th Dist. Athens Nos. 11CA18, 12CA1, 11CA19, 12CA6 & 11CA33, 2014-Ohio-2017, at ¶75. Therefore, we decline to pass on these questions and overrule the assignments of error as m oot. See App.R. 12(A)(1)(c).

IV {¶ 21} The Paulsons’ cross-assignment of erro r asserts that alt hough the trial court correctly granted the remedy of quiet title with regard to the road assessment bills, the court erred by not also granting quiet title with regard to the requirement that they seek approval for building plans. {¶ 22} Quiet title rulings are reviewed under a mani fest weight of the evidence standard.HOCKING, 13CA13 11 See e.g. Spurlock v. Pemberton , 4 th Dist. Lawrence No. 13CA1, 2013-Ohio-4002, at ¶27; Cartwright v. Allen , 12 th Dist. Fayette No. CA2011–10–025, 2012-3631, at ¶10. Thus, an appellate court will not reverse a trial court’s decision if some competent, credible evidence supports the decision. Hubbard Family Trust v. TNT Land Holdings, LLC, 2014-Ohio-772, 9 N.E.3d 411, at ¶62 (4 th Dist.) Hamilton v. Ball , 2014-Ohio-1118, 7 N.E.3d 1241, at ¶15 (4 th Dist.). {¶ 23} Here, the trial court’s ruling is based almost entirely on the wording of the Holiday Haven No. 8 plat map. Because that map made no mention of assessing fees to maintain the subdivision roadways, sufficient evid ence exists to rule against Holiday Haven on that issue. In short, no provision allows for th e Paulsons to be assesse d road maintenance fees. {¶ 24} On the other hand, the plat map includes a provision to require the approval of structures before construction. Again, we dec line to pass on the specifics of that provision because it would constitute an advisory opinion. Ho wever, the declarations in the plat map are

sufficient to establish that someone has the au thority to approve build ings constructed on the Paulsons' lots. Thus, the trial court correctly opted not to quiet title on that issue as it appears that either Holiday or any future successor-in-interest may assert that right. {¶ 25} Therefore, because we believe that suffi cient evidence exists to support the trial court’s finding, we hereby overrule the cross-assignment of error. Accordingly, having found no merit in the assignments of error or the cross-a ssignments of error, we hereby affirm the trial court's judgment.

JUDGMENT AFFIRMED.[Cite as Holiday Haven Members Assn. v. Paulson , 2014-Ohio-3902.] JUDGMENT ENTRY It is ordered the judgment be affirmed and that all parties split the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J. & Hoover, J.: Concur in Judgment & Opinion For the Court

BY: Peter B. Abele Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.