# Du v. Nottingham Gate Estates HOA, Inc.

> Ohio Court of Appeals · December 31, 2024 · 2024 Ohio 6090

URL: https://www.frixlaw.com/law-library/cases/10772730

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** December 31, 2024
- **Citations:** 2024 Ohio 6090
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Flagg Lanzinger
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[Cite as Du v. Nottingham Gate Estates HOA, Inc., 2024-Ohio-6090.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

SHIRONG DU, et al. C.A. No. 31011

Appellants

v. APPEAL FROM JUDGMENT
ENTERED IN THE
NOTTINGHAM GATE ESTATES HOA, COURT OF COMMON PLEAS
INC., et al. COUNTY OF SUMMIT, OHIO
CASE No. CV-2020-08-2164
Appellees

DECISION AND JOURNAL ENTRY

Dated: December 31, 2024

FLAGG LANZINGER, Judge.

{¶1} Shirong Du and Shasha Tang (collectively,

“Homeowners”) appeal from the judgment of the Summit County Court of Common Pleas. For

the following reasons, this Court reverses.

I.

{¶2} The issue in this appeal is whether certain recorded plats reflect an express

easement for a hike and bike trail on Homeowners’ residential property. In January 2019,

Homeowners purchased Sublot 15 (a vacant lot) in Nottingham Gate Estates, a subdivision in

Hudson, Ohio. Homeowners built a home on the vacant lot, which was completed in November

2019.

{¶3} According to the record below, Du was aware of an unpaved trail on the south side

of Sublot 15 (the “Hike & Bike Trail”) at the time he purchased Sublot 15. A white fence separates

the Hike & Bike Trail from the remainder of Sublot 15. The record indicates that Du believed the
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Hike & Bike Trail was his private property, and that anyone seeking to use it needed his express

permission to do so.

{¶4} A dispute arose among Homeowners and several board members of the Nottingham

Gate Estates HOA as to whether an easement existed on Sublot 15 that allowed members of the

HOA and the public to use the Hike & Bike Trail. This dispute culminated in the underlying

lawsuit.

{¶5} In 2020, Homeowners sued Nottingham Gate Estates HOA, Inc. and several of its

members and board members (individually and collectively, the “HOA”). Homeowners asserted

claims for: (1) breach of contract; (2) breach of fiduciary duty; (3) negligence and wanton conduct;

(4) trespass; and (5) declaratory judgment. Regarding the latter, Homeowners sought a declaration

that:

any use by the HOA, Board Members, members of the general public or other third
parties of the (non-existent) Hike and Bike Trail on [Homeowners’] property,
whether for recreational use, repair, widening, expansion or otherwise, is unlawful
and in violation of the rights of [Homeowners].

{¶6} The matter ultimately proceeded to a bench trial before a magistrate on

Homeowners’ claim for declaratory judgment only. The magistrate issued a decision in favor of

the HOA, and Homeowners filed objections. The trial court overruled Homeowners’ objections

and entered judgment in favor of the HOA.

{¶7} Homeowners attempted to appeal the trial court’s decision to this Court. This Court

dismissed the attempted appeal for lack of jurisdiction because all claims had yet to be resolved

between the parties. Homeowners then moved the trial court to voluntarily dismiss their remaining

claims. The trial court granted Homeowners’ motion, and Homeowners filed the instant appeal.

The matter is now properly before this Court.
3

{¶8} This Court will begin with a discussion of the documents relevant to the disposition

of this appeal, followed by a summary of the proceedings below.

2019 Deed

{¶9} In 2019, Homeowners purchased vacant residential land in Hudson, Ohio. The

general warranty deed conveying the land lists the address as 5555 Abbyshire Drive, Hudson, Ohio

44236. The deed describes the real property as:

Lot No. 15 in Nottingham Gates Estates, Phase IV, as recorded in Plat 55132143,
of Summit County Records, and replatted as Plat 55315277 [as Phase IV and Phase
V] of Summit County Records.

The 2004 & 2006 Plats

{¶10} As noted, the deed expressly references two plats for Nottingham Gate Estates: (1)

Plat 55132143, which was recorded with the Summit County Fiscal Office in 2004 (“2004 Plat”);

and (2) Plat 55315277, which was a re-plat recorded with the Summit County Fiscal Office in

2006 (“2006 Plat”) (collectively, the “Plats”). The Plats contain vicinity maps that depict the

Nottingham Gate Estates subdivision shaded in black. A “Bike & Hike Trail” is noted on the Plats.

{¶11} Note 2 of the Plats provides that:

All proposed retention basins, the Hike and Bike Trail in Block “D” and Sublot 15,
and the relocated stream, in the rear of Sublots 1 through 7, will be privately owned
and maintained by the Home Owners Association.

(Capitalization omitted and emphasis added.) The Plats also indicate that “the Declaration of

Covenants, Restrictions, and Easements [the “Declaration”] recorded for Nottingham Gate Estates

Phase I apply to this subdivision.” (Capitalization omitted.)
4

The Declaration

{¶12} Article IV of the Declaration addresses “Property Rights in Common Facilities[.]”

According to the testimony of the Vice President of the HOA, the “Bike and hike is a common

facility.” Article IV, Section 1 provides:

The Developer shall retain the legal title in the Common Facilities until such time
as it has completed any improvements thereon and until such time as, in the opinion
of the Developer, the Association is able to maintain the same, but notwithstanding
any other provision herein, the Developer hereby covenants for itself and it[s]
successors and assigns that it shall convey the Common Facilities and real property
related thereto to the Association at such time all improvements are installed.

The Developer shall have the duty to maintain all Common Facilities until such
time as they have been completed and paid for in full and the responsibility to
maintain the same has been transferred to the Association. Thereafter, it shall be
the duty of the Association to pay the expenses of operating and maintaining the
Common Facilities.

(Emphasis added.) Homeowners assert that the above language reflects the process by which the

developer of Nottingham Gate Estates could have conveyed the Hike & Bike Trail on Sublot 15

to the HOA, but did not. Homeowners assert that the developer instead conveyed the entire Sublot

15 (i.e., with no easement for the Hike & Bike Trail) to the prior owners of Sublot 15, who then

conveyed the entire Sublot 15 to Homeowners.

The Bench Trial

{¶13} The magistrate held a bench trial on Homeowners’ claim for declaratory judgment

only. The testimony indicated that the City of Hudson (the “City”) instructed the developer of

Nottingham Gate Estates to install the Hike & Bike Trail on Sublot 15 as part of the City’s

connectivity plan. The Hike & Bike Trail on Sublot 15 connects to the Summit County Bike and

Hike Trail (the “County Trail”). The testimony indicated that neither the City, nor the HOA,

claims any ownership of the Hike & Bike Trail on Sublot 15. Instead, according to the testimony
5

of board members of the HOA, Note 2 reflects as easement that allows HOA members and the

public to use the Hike & Bike Trail on Sublot 15 to connect to the County Trail.

The Magistrate’s Decision

{¶14} The magistrate concluded that Note 2 reflects an express easement for the Hike &

Bike Trail on Sublot 15. In doing so, the magistrate relied upon the following language from Note

2 of the Plats:

All proposed retention basins, the Hike and Bike Trail in Block “D” and Sublot 15,
and the relocated stream, in the rear of Sublots 1 through 7, will be privately owned
and maintained by the Home Owners Association.

(Capitalization omitted and emphasis added.) The magistrate then cited case law for the

proposition that an express easement must meet the requirements of R.C. 5301.01. The magistrate

also cited case law for the proposition that a recorded plat becomes part of the legal description of

the conveyed land, which provides constructive notice of any easements reflected within the plat.

{¶15} The magistrate reasoned that the Plats met the statutory requirements of R.C.

5301.01, providing Homeowners with constructive notice of the alleged easement. As a result, the

magistrate recommended that the trial court render a declaratory judgment in favor of the HOA,

declaring that an easement existed for the Hike & Bike Trail on Sublot 15.

Homeowners’ Objections

{¶16} Homeowners filed lengthy objections to the magistrate’s decision. Homeowners’

objections included arguments that: (1) Note 2 refers to the HOA’s ownership of the Hike & Bike

Trail on Sublot 15, which is legally distinct from an easement; (2) the process by which the HOA

could have obtained ownership of the Hike & Bike Trail on Sublot 15 under the Declaration (i.e.,

through a conveyance from the developer to the HOA) never occurred; (3) instead of following

the process set forth in the Declaration for conveying ownership of the Hike & Bike Trail on Sublot
6

15 to the HOA, the developer conveyed the entire Sublot 15 to the prior owners of Sublot 15, who

then conveyed the entire Sublot 15 to Homeowners; and (4) the alleged easement does not comply

with the City’s Land Development Code, in part, because it does not indicate the alleged

easement’s approximate location and width.

The Trial Court’s Judgment

{¶17} The trial court overruled Homeowners’ objections. The trial court summarized

Homeowners’ objections as “describ[ing] a process that could have occurred, but did not.”

(Emphasis in original.) The trial court noted that Homeowners’ arguments primarily relied on the

language of Note 2. The trial court rejected Homeowners’ arguments, reasoning that:

the Developer constructed the Bike and Hike Trail prior to creating the subdivision,
as directed by the City of Hudson. Rather than create a separate lot or parcel for
the Bike and Hike Trail, it is part of Lot 15 and noted on the plat map as an
easement. The court finds [Homeowners’] argument without merit, and finds that
the language from the Declarations does not prohibit the process the Developer
followed.

The trial court then adopted the magistrate’s decision, declaring that:

a valid easement exists on Lot 15 in Nottingham Gate Estates, Phase IV, as recorded
in Plat 55132143, of Summit County Records, and replatted as Plat 55315277 as
Phase IV and Phase V of Summit County Records, for the hike and bike trail that
runs along the south side of Lot 15, in favor of the Nottingham Gates Estates HOA,
Inc. The easement is to be maintained by the Nottingham Gates Estates HOA, Inc.

Homeowners now appeal, raising two assignments of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN OVERRULING [HOMEOWNERS’]
OBJECTIONS TO THE MAGISTRATE’S DECISION, AND IN ADOPTING
THE MAGISTRATE’S DECISION FINDING FOR [THE HOA] ON COUNT
FIVE, BECAUSE THERE WAS NO EASEMENT CREATED FOR THE HIKE
& BIKE TRAIL IN SUBLOT 15 FOR [THE HOA].
7

{¶18} In their first assignment of error, Homeowners argue that the trial court erred by

adopting the magistrate’s decision because no easement exists for the Hike & Bike Trail on Sublot

15. “Generally, this Court reviews a trial court’s action with respect to a magistrate’s decision for

an abuse of discretion.” Wenger v. Wenger, 2024-Ohio-3354, ¶ 11 (9th Dist.), quoting In re

L.M.W., 2020-Ohio-6856, ¶ 9 (9th Dist.). We consider the trial court’s action, however, “with

reference to the nature of the underlying matter.” Simecek v. Simecek, 2024-Ohio-2471, ¶ 13 (9th

Dist.), quoting Tabatabai v. Tabatabai, 2009-Ohio-3139, ¶ 18 (9th Dist.). “The construction of

written contracts and instruments of conveyance is a matter of law.” Bath Twp. v. Raymond C.

Firestone Co., 140 Ohio App.3d 252, 256 (9th Dist. 2000), quoting Alexander v. Buckeye Pipe

Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the syllabus. Accordingly, this Court applies

a de novo standard of review. Porterfield v. Bruner Land Co., Inc., 2017-Ohio-9045, ¶ 15 (7th

Dist.).

{¶19} “An easement is a property interest in the land of another that allows the owner of

the easement a limited use of the land in which the interest exists.” Dysart v. Circle J., L.L.C.,

2016-Ohio-869, ¶ 13 (9th Dist.), quoting Merrill Lynch Mtge. Lending, Inc. v. Wheeling & Lake

Erie Ry. Co., 2010-Ohio-1827, ¶ 10 (9th Dist.). “The creation of an easement may be express,

implied, or by prescription.” Merrill Lynch Mtge. Lending, Inc. at ¶ 10.

{¶20} Here, the trial court concluded that Note 2 created an express easement for the Hike

& Bike Trail on Sublot 15. “An express easement may be created by grant, or by reservation or

exception in a deed.” Id. “There are no particular words required to create an easement by express

grant, provided that the intent of the parties is clear from the document.” Tower 10, LLC v. 10 W

Broad Owner, LLC, 2020-Ohio-3554, ¶ 28 (10th Dist.), quoting Cincinnati Entertainment Assocs.,

Ltd. v. Bd. of Commrs., 141 Ohio App.3d 803, 813 (1st Dist. 2001).
8

{¶21} The 2019 deed conveying Sublot 15 to Homeowners expressly references the

recorded Plats. “When land is conveyed by the lot number of a recorded plat, the plat becomes as

much a part of the description as would be the case if copied into the instrument of conveyance,

or if the data furnished by the plat were set out in full in such instrument.” Krzewinski v. Eaton

Homes, Inc., 108 Ohio App. 175 (9th Dist. 1958). Thus, the Plats were part of Homeowners’ chain

of title, providing Homeowners with constructive notice of any easements or restrictions reflected

in the Plats. See Emrick v. Multicon Builders, Inc., 57 Ohio St.3d 107, 109 (1991).

{¶22} As noted above, Note 2 of the Plats provides:

All proposed retention basins, the Hike and Bike Trail in Block “D” and Sublot 15,
and the relocated stream, in the rear of Sublots 1 through 7, will be privately owned
and maintained by the Home Owners Association.

(Capitalization omitted and emphasis added.). While no particular words are required to create an

express easement, Note 2 plainly refers to the HOA’s potential future ownership and maintenance

of the Hike & Bike Trail on Sublot 15. It also refers to the HOA’s potential future ownership and

maintenance (not an easement) of the proposed retention basins, the Hike & Bike Trail in Block

D, and the relocated stream. Yet the trial court erroneously conflated ownership with an easement.

{¶23} As the Ohio Supreme Court has made clear, courts are to enforce contracts

according to their plain meaning, not to determine what the parties should have contracted for in

retrospect. Boone Coleman Constr., Inc. v. Piketon, 2016-Ohio-628, ¶ 39; see Siltstone Resources,

LLC v. Ohio Pub. Works Comm., 2019-Ohio-4916, ¶ 29 (7th Dist.) (“Contract construction rules

apply to the interpretation of the deed restrictions.”). “It is not the responsibility or function of

this court to rewrite the parties’ contract in order to provide for a more equitable result.” Foster

Wheeler Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth., 78 Ohio St.3d 353, 362

(1997).
9

{¶24} Note 2 indicates that the Hike & Bike Trail on Sublot 15 “will be privately owned

and maintained” by the HOA. (Emphasis added.) As Homeowners have consistently argued, the

plain language of Note 2 contemplates a future conveyance to the HOA, which never occurred,

rather than a present easement. Additionally, Note 2 begins with the qualifier “All proposed[,]”

which also reflects the HOA’s lack of a present interest (easement or otherwise) in the Hike &

Bike Trail on Sublot 15. See P.J. Lindy & Co. v. Savage, 2019-Ohio-736, ¶ 33 (6th Dist.)

(explaining the “series qualifier” rule of contract interpretation).

{¶25} Simply put, nothing in the plain language of Note 2 indicates that the HOA has an

express easement for the Hike & Bike Trail on Sublot 15. See Dysart, 2016-Ohio-869, at ¶ 13 (9th

Dist.), quoting Merrill Lynch Mtge. Lending, 2010-Ohio-1827, at ¶ 10 (9th Dist.) ( “An easement

is a property interest in the land of another that allows the owner of the easement a limited use of

the land in which the interest exists.”). Consequently, the trial court erred when it determined that

Note 2 created an express easement for the Hike & Bike Trail on Sublot 15. Homeowners’ first

assignment of error is sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN OVERRULING [HOMEOWNERS’]
OBJECTIONS TO THE MAGISTRATE’S DECISION, AND IN ADOPTING
THE NOVEMBER 10, 2022 MAGISTRATE’S DECISION FINDING FOR [THE
HOA] ON COUNT FIVE, BECAUSE [HOMEOWNERS] DID NOT RECEIVE
CONSTRUCTIVE NOTICE THAT THE ALLEGED EASEMENT FOR THE
HIKE & BIKE TRAIL HAD BEEN CREATED IN SUBLOT 15 FOR [THE HOA].

{¶26} In their second assignment of error, Homeowners argue that the trial court erred by

overruling their objections and adopting the magistrate’s decision because they did not have

constructive notice of the alleged easement. In light of this Court’s disposition of Homeowners’

first assignment of error, this Court overrules Homeowners’ second assignment of error on the

basis that it is moot. App.R. 12(A)(1)(c).
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III.

{¶27} Homeowners’ first assignment of error is sustained. Homeowners’ second

assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is

reversed.

Judgment reversed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellees.

JILL FLAGG LANZINGER
FOR THE COURT
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SUTTON, J.
CONCURRING.

{¶28} Although I concur with this Court’s conclusion that no express easement exists, I

write separately to emphasize the plain language in Article IV of the Declaration, and in Note 2,

indicates the developer “hereby covenants for itself and it[s] successors and assigns that it shall

convey the Common Facilities and real property related thereto to the Association at such time all

improvements are installed[,]” and the Hike & Bike Trail on Sublot 15 “will be privately owned

and maintained” by the HOA.

{¶29} Thus, our determination regarding the express easement in no way precludes the

developer from conveying the property to the HOA as set forth in the Declaration and Note 2, if

the developer has not yet done so.

STEVENSON, P. J.
CONCURRING IN JUDGMENT ONLY.

{¶30} I respectfully concur in judgment only with the majority opinion. I agree that the

decision of the trial court should be reversed, however, I would find that the trial court erred by

focusing on the wrong question in this case. The Homeowners filed a declaratory judgment asking

the following question as noted by the majority:

any use by the HOA, Board Members, members of the general public or other third
parties of the (non-existent) Hike and Bike Trail on [Homeowners’] property,
whether for recreational use, repair, widening, expansion or otherwise, is unlawful
and in violation of the rights of [Homeowners].

{¶31} However, instead of simply declaring whether any use of the Hike & Bike Trail by

these various groups was lawful, the trial court’s opinion went further and decided a question it

was not asked to decide: the specific ownership interest conveyed in the Hike & Bike Trail. The

majority reaches that question and finds that the trial court erred in its reasoning. I would not reach
12

that question and would reverse and remand the matter to the trial court to properly focus on the

declaratory judgment brought by Homeowners.

{¶32} The trial court’s reinterpretation of the question in this case changed the focus from

the original declaratory judgment action, which sought a declaration that any use of the Hike &

Bike Trail by members of the public or third parties is unlawful, to defining the actual ownership

interest of the Hike & Bike Trail. That change of focus may have obscured whether the trial court

had jurisdiction to hear the declaratory judgment action in this matter. R.C. 2721.12 governs the

inclusion of parties in a declaratory judgment action. R.C. 2721.12(A) provides that “all persons

who have or claim any interest that would be affected by the declaration shall be made parties to

the action or proceeding.” Essentially, R.C. 2721.12(A) seeks to protect the due process right to

be heard to any person whose interest could be affected by a declaratory judgment. Accordingly,

“[t]he absence of a necessary party is a jurisdictional defect that precludes any declaratory

judgment.” Cerio v. Hilroc Condominium Unit Owners Assn., Inc., 2004-Ohio-1254, ¶ 10 (8th

Dist.), citing Bretton Ridge Homowners Club v Deangelis, 51 Ohio App.3d 183, 185 (8th Dist.

1988), citing Cincinnati v Whitman, 44 Ohio St.2d 58, 59 (1975). Determining if a nonparty is a

necessary party to a declaratory judgment action depends on whether that nonparty “has a legally

protectable interest in rights that are the subject matter of the action.” Rumpke Sanitary Landfill,

Inc. v. Ohio, 2010-Ohio-6037, ¶ 15. A “legally protectable interest” is “‘[a]n interest recognized

by law.’” Id. at ¶ 14, quoting Black’s Law Dictionary 886 (9th Ed. 2009).

{¶33} It appears from the record that the residents of Nottingham Gate Estates may claim

an interest in use of the Hike & Bike Trail; therefore, any declaration by the trial court would affect

their ability to use it as established in the original plat. If so, the residents ought to be heard in an

action affecting their interests. Accordingly, these neighbors may be parties under R.C. 2721.12(A)
13

and the Court may not have jurisdiction to affect their interests without their participation in the

action.

{¶34} Accordingly, I concur in the judgment to reverse and remand the decision of the

trial court.

APPEARANCES:

BRIAN A. SMITH, Attorney at Law, for Appellants.

JOSEPH MONROE, II and KATHLEEN M. KENNEDY, Attorneys at Law, for Appellees.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10772730. Public record. Not legal advice.