Tunnacliffe v. Carr

Summary

The Ohio Fourth District Court of Appeals reviewed consolidated appeals arising from a jury verdict that Barbara Carr and Donna Barrett violated restrictive covenants governing minimum lot size and mobile-home use. The court upheld the findings of covenant violations and rejected the appellants’ defenses and other assignments of error, but held that the attorney-fee award was unsupported by sufficient evidence of reasonableness. The court modified the judgment to vacate the jury’s attorney-fee award and remanded for modification, leaving unchallenged expert-witness and deposition fees and the attorney fees awarded after the injunction hearing intact.

Holdings

1. The jury's rejection of Barrett's laches defense was supported by competent, credible evidence because Tunnacliffe offered excuses for the delay and Barrett failed to prove material prejudice.
2. The evidence supported rejection of Carr's and Barrett's waiver and abandonment defenses because the neighborhood had not changed so substantially that the restrictions became valueless.
3. The Cowan Covenants were enforceable, and competent evidence supported the jury's findings that Carr and Barrett violated the 20-acre restriction and that Barrett violated the mobile-home restriction.
4. When a restrictive covenant makes reasonable attorney fees part of recoverable damages, the issue may be submitted to the jury unless the right to jury determination is waived or the parties stipulate to a different procedure; however, an award requires evidence establishing the reasonableness of the fees, not merely the hourly rate.
5. The appellate court declined to consider Barrett's claim for repayment of the purchase price because she had not asserted that claim in the trial court.
6. Carr could not challenge possible future collection activities or judgment liens because those consequences were contingent and had not occurred; she also lacked standing to assert errors affecting another party or the appellee.

Questions Presented

1. Whether the evidence supported the rejection of Barrett's laches defense.
2. Whether the restrictive covenants had been waived or abandoned because of other properties, including properties exempted by a prior judgment entry, and whether the covenants remained enforceable.
3. Whether the evidence supported findings that Carr and Barrett violated the 20-acre subdivision restriction and that Barrett violated the mobile-home restriction.
4. Whether the jury could determine attorney fees treated as damages under the restrictive covenants and whether the evidence supported the amount awarded.
5. Whether Barrett could obtain restitution of the purchase price after the trial court ordered rescission of the deed.
6. Whether the trial court improperly allowed the jury to decide legal questions or improperly excluded hardship evidence.
7. Whether Carr could challenge possible future collection consequences and the injunctive relief entered in favor of Tunnacliffe.

Disposition

reversed_and_remanded