Cunningham v. Hiles, No. 3-977A234

Docket NºNo. 3-977A234
Citation182 Ind.App. 511, 395 N.E.2d 851
Case DateOctober 24, 1979

Page 851

395 N.E.2d 851
182 Ind.App. 511
James D. CUNNINGHAM, Fred M. Lutgen, Jr. and Ross Haller,
Appellants (Plaintiffs),
v.
Doug HILES, Al Gomez, Jr., Arthur C. and Sarah Clouser, Town
of Schererville Plan Commission and Town of
Schererville, Indiana, a municipal
corporation, Appellees (Defendants).
No. 3-977A234.
Court of Appeals of Indiana, Third District.
Oct. 24, 1979.

[182 Ind.App. 512]

Page 852

William J. Muha, Daniel G. Hoebeke, Highland, for appellants.

Gilbert F. Blackmun, and Leonard M. Holajter, Friedrich, Bomberger, Tweedle and Blackmun, Highland, Kenneth D. Reed, Abrahamson, Reed and Tanasijevich, Hammond, for appellees.

STATON, Judge.

James D. Cunningham, Fred M. Lutgen, Jr., and Ross Haller, whom we shall hereinafter refer to as "Homeowners", resided in Lincoln Knolls Estates, a subdivision 1 of Schererville, Indiana. They filed an action against the various named defendants in an attempt to preclude the possibility that the wholly residential character of their subdivision would be compromised by the establishment of a commercial enterprise. Since the inception of Lincoln Knolls Estates in 1953, a covenant has restricted the development of lots to residential use.

[182 Ind.App. 513] In July of 1976, the Schererville Plan Commission voted to recommend to the Schererville Board of Trustees that the zoning classification of a particular tract within Lincoln Knolls Estates be changed from residential to commercial usage. The recommendation was subsequently adopted by the Board of Trustees. Homeowners challenged the propriety of that re-classification

Page 853

in the trial court on the basis that the Plan Commission had violated due process and equal protection guarantees of Homeowners.

A related but legally distinct claim provided the basis for Homeowners' suit against individual defendants Doug Hiles, Al Gomez, Jr., and Arthur and Sarah Clouser. In April of 1976, the Clousers, who own various tracts of land in Lincoln Knolls Estates, entered into a contract with Doug Hiles for the sale of one of their lots within the subdivision. The sale was made conditional upon whether the zoning classification of the property would be changed from residential to commercial use. Following the Trustees' zoning re-classification of the property in July of 1976, Hiles employed Al Gomez, Jr. as general contractor to direct the construction of a music store on the purchased lot in Lincoln Knolls Estates. Homeowners filed suit against the Clousers, Hiles, and Gomez to permanently enjoin the construction of the proposed music store on the basis that the use of land in Lincoln Knolls Estate was restricted by covenant to residential purposes.

Homeowners' related claims against the various defendants were tried without the intervention of a jury. Following the presentation of evidence and arguments of counsel, the trial court entered judgment for both the named individual defendants and the Town of Schererville and its Plan Commission. Homeowners here appeal from those decisions, and raises the following issue for our review:

(1) Whether the evidence supports the conclusion of the trial court that the restrictive covenant limiting the use of land within the subdivision to residential purposes was not enforceable?

We reverse the trial court's determination that the restrictive covenant was unenforceable. 2

[182 Ind.App. 514] Homeowners contend that the evidence was insufficient to support the trial court's conclusion that the covenant restricting the use of the subject tract to residential purposes was unenforceable. At the outset, we note that individual defendants Hiles, Gomez, and the Clousers maintain that Homeowners have waived their right to raise this question on appeal because the issue was not raised in Homeowners' motion to correct errors.

While the presentation of issues in Homeowners' motion to correct errors is not a model of organization, we feel the allegations of error asserted therein satisfied the purpose of Ind.Rules of Procedure, Trial Rule 59. The purpose of TR. 59 is to apprise the trial court of a party's allegations of error in order to enable the trial court to rectify the error. Johnson v. State (1975), Ind.App., 338 N.E.2d 680, 682. Homeowners' motion to correct errors explicitly tendered the following related allegations:

(1) Whether the trial court applied the proper standard by which to evaluate whether the evidence justified a finding that the restrictive covenant was unenforceable?

(2) Whether the individual defendants had presented evidence sufficient to satisfy their burden of proof to show that the restrictive covenant was not enforceable?

In order to adjudicate these allegations, the court was necessarily required to determine whether the evidence was sufficient to support its decision that the restrictive covenant was not enforceable. The motion to correct errors alleged that the court had applied an incorrect standard of review in evaluating the evidence to determine whether the covenant was enforceable, that the defendants had the burden of proof to show that the correct standard was satisfied, and that the defendants had not carried this burden. The issue as framed

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16 practice notes
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768; Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094; Cunningham v. Hiles (1979), 182 Ind.App. 511, 395 N.E.2d 851. Although restrictive covenants are not favored by the law, the contractual nature of the restrictions contained in such ......
  • Adoption of Thomas, Matter of, No. 4-681A37
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1982
    ...supported by sufficient evidence? Because this court prefers to decide an appeal on its merits, cf. Cunningham v. Hiles, (1979) Ind.App., 395 N.E.2d 851, and West v. Indiana Ins. Co., (1969) 253 Ind. 1, 247 N.E.2d 90, we hold Chris' motion to correct errors preserved the insufficiency issue......
  • Cunningham v. Hiles, No. 3-977A234
    • United States
    • Indiana Court of Appeals of Indiana
    • March 25, 1980
    ...that a material change in circumstances has rendered the appeal moot. Our opinion, which appears at Cunningham v. Hiles (1979), Ind.App., 395 N.E.2d 851, is concluded with the directive that the Lake County Circuit Court grant a permanent injunction against the construction of the music sto......
  • Daniels v. Area Plan Com'n of Allen County, No. Civ. 1:00CV157.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 19, 2000
    ...is always a line or point where commercial and residential districts must join." Id. (citation omitted). In Cunningham v. Hiles, 182 Ind.App. 511, 395 N.E.2d 851 (1979), the Indiana Court of Appeals again held that increased traffic that was restricted to the perimeter of one corner of a su......
  • Request a trial to view additional results
16 cases
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768; Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094; Cunningham v. Hiles (1979), 182 Ind.App. 511, 395 N.E.2d 851. Although restrictive covenants are not favored by the law, the contractual nature of the restrictions contained in such ......
  • Adoption of Thomas, Matter of, No. 4-681A37
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1982
    ...supported by sufficient evidence? Because this court prefers to decide an appeal on its merits, cf. Cunningham v. Hiles, (1979) Ind.App., 395 N.E.2d 851, and West v. Indiana Ins. Co., (1969) 253 Ind. 1, 247 N.E.2d 90, we hold Chris' motion to correct errors preserved the insufficiency issue......
  • Cunningham v. Hiles, No. 3-977A234
    • United States
    • Indiana Court of Appeals of Indiana
    • March 25, 1980
    ...that a material change in circumstances has rendered the appeal moot. Our opinion, which appears at Cunningham v. Hiles (1979), Ind.App., 395 N.E.2d 851, is concluded with the directive that the Lake County Circuit Court grant a permanent injunction against the construction of the music sto......
  • Daniels v. Area Plan Com'n of Allen County, No. Civ. 1:00CV157.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 19, 2000
    ...is always a line or point where commercial and residential districts must join." Id. (citation omitted). In Cunningham v. Hiles, 182 Ind.App. 511, 395 N.E.2d 851 (1979), the Indiana Court of Appeals again held that increased traffic that was restricted to the perimeter of one corner of a su......
  • Request a trial to view additional results

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