Klocker v. ZeigerKlocker v. Zeiger
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-637240
RELEASED: June 25, 2009
JOURNALIZED:
Steven L. Gardner
Kenneth J. Walsh
Ryan M. Fitzgerald
McDonald Hopkins LLC
2100 Bank One Center
600 Superior Avenue, East
Cleveland, OH 44114-2653
ATTORNEYS FOR APPELLEES
Daniel A. Richards
Dana A. Rose
Weston Hurd LLP
The Tower at Erieview
1301 East Ninth St., Suite 1900
Cleveland, OH 44114-1862
Perrin I. Sah
Williams, Moliterno & Scully Co., L.P.A.
2241 Pinnacle Parkway
Twinsburg, OH 44087
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Plaintiff-appellant, Thomas G. Klocker, appeals from the judgment of the common pleas court thаt granted summary judgment in favor of defendants-appellees, Robert Zeiger, Thomas Friel, Allan Bobey, and the Clifton Lagoon Trust (the “Trustees“). We dismiss for lack of a final appealable order.
I
{¶ 2} This case involves a dispute over a strip of property (the “Strip“) in the Clifton Lagoon development in Lakewood, Ohio. Zeiger, Friеl, and Bobey own the Strip, along with other common area property in the development, as Trustees of the Clifton Lagoon Trust. The Strip runs in front of and abuts a series of sublots on which private homes, including one owned by Klocker, are located. The fronts of the homes face Beach Road and the Rocky River. The area of the Strip in front of each home is used as a driveway for the homes.
{¶ 3} The real property owned by Klocker was granted to his predecessor in title, Franklin Schneider, by deed recorded on January 12, 1920. The grantor of the deed was The Clifton Park Land Company. Along with granting the residential sublot, the deed conveyed “the right tо pass over and across other lands of the grantor adjacent to the lot hereby conveyed [i.e., the Strip]; also the right to use in common with others, the lagoon or basin constructed herein, and the passage or cut therefrom to Rocky River; but the use of the land hereby conveyed and of said roads and ways, and of said lagoon or basin shall be subject
{¶ 4} By deed recorded Aрril 20, 1920, The Clifton Park Land Company conveyed title to certain common area property within the Clifton Lagoon development, including the Strip, to the Trustees’ predecessors in interest. The Trustees hold the property “in trust, for the sole use and benefit [of] all the owners of sublots or part of lots, in the Clifton Park allotment ***.”
{¶ 5} In 1996, the Trustees apparently decided that a certain style of red interlocking driveway pavers would be utilized on the Strip. The city of Lakewood Board of Building Standards аpproved the Trustees’ application for a variance and use of the red interlocking driveway pavers on the Strip by motion dated July 9, 1996.
{¶ 6} Klocker purchased his property at 908 Beach Road on May 15, 2003. Despite representations by Klocker, his wife, and their architect to the Trustees and the city of Lakewood that they would utilize the red pavers, Klocker installed nonconforming yellow pavers on the Strip of property in front of his home owned by the Trustees. The Trusteеs subsequently removed the nonconforming pavers without notice to Klocker.
{¶ 7} Klocker filed suit in September 2007. The complaint contained ten counts: (1) adversе possession, (2) easement by prescription, (3) easement by necessity, (4) fraud, (5) breach of fiduciary duty and waste, (6) unlawful
{¶ 8} Klocker subsequently filed a motion for a temporary restraining order, seeking to compel the Trustees to permit him to install the yellow pavers on the Strip despite the Trustees’ оbjections. The trial court denied the motion. The court also denied Klocker‘s motion for a preliminary injunction.
{¶ 9} Klocker then filed a motion for partial summary judgment on his declaratory judgment claim, and the Trustees filed a motion for summary judgment on all ten counts of Klocker‘s complaint. The court granted the Trustees’ motion, ruling that “[t]he court hereby grants summary judgment in favor of Defendants. The Strip of property at issue is owned by the Trustees and the Plaintiff wishes to place nonconforming pаvers on Defendants’ property. Plaintiff only has a limited right to pass over this property. Trustees are ordered to return the nonconforming pavers to Plaintiff immediately. This is a final appealable order.”
{¶ 10} Klocker appealed from this order, but then filed a motion to dismiss the appeal for lack of a final appealable order.
II
{¶ 11} In his motion to dismiss, Klocker argues that the trial court‘s order is not final because it resolved only his declaratory judgment and conversion
{¶ 12} Klocker‘s assertions that the trial court order did not resolve all ten claims and that it resolved the conversion claim in his favor are incorrect. In their motion, the Trustees moved for summary judgment on all of Klocker‘s claims, and the trial court‘s order clearly stated that it “grant[ed] summary judgment in favor of Defendants.” Thus, the order resolved all of Klocker‘s claims in favor of the Trustees. Further, the court‘s order that the Trustees return certain pavers to Klocker did not indicate that summary judgment was rеndered for Klocker on his conversion claim, especially because he never moved for summary judgment on that claim. As there is no language in the court‘s order indicating that summary judgment was rendered for Klocker on the conversion claim, there was no damage issue to resolve on the claim.
{¶ 13} We agree, however, with Klocker‘s assertion that the trial court‘s judgment on the declaratory judgment claim is not sufficient to make its ruling a final appealable order. It is well settled thаt “when a trial court enters a judgment in a declaratory judgment action, the order must declare all of the parties’ rights and obligations in order to constitute a final, appealable order.”
{¶ 14} Thе trial court failed to fulfill its function regarding the declaratory judgment claim because it did not construe the documents at issue in the case and advise the partiеs of their rights and obligations under those documents and the pertinent law. Although the court attempted to set forth some reasoning in its entry, it is undisputed that the Strip is owned by the Trustees and that Klocker has a limited right to pass over the property. The issue in the case is whether the Trustees, under the deeds at issue, have the authority to impоse a “rule and regulation” that requires Klocker to install red driveway pavers on the Strip of property in front of his home owned by the Trustees, and further, if they have suсh authority, whether such rule was ever properly promulgated. The trial court‘s order does not construe the documents to resolve this issue.
{¶ 15} Accordingly, we dismiss this appeal for lack of a final appealable order. Despite Klocker‘s request that we dismiss and remand for trial, our dismissal does not require a trial of this mаtter.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
CHRISTINE T. McMONAGLE, JUDGE
SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR