Holliday v. Crooked Creek Villages Homeowners Assoc., Inc.
| Decision Date | 07 December 2001 |
| Docket Number | No. 49A05-0010-CV-428.,49A05-0010-CV-428. |
| Citation | 759 N.E.2d 1088 |
| Parties | Stanley E. HOLLIDAY and Vera M. Holliday, Appellants-Defendants, v. CROOKED CREEK VILLAGES HOMEOWNERS ASSOC., INC., Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Terry R. Curry, Butler, Schembs, Curry & Jones, Jeffrey O. Meunier, Kiefer & McGoff, Indianapolis, IN, Attorneys for Appellant.
William T. Rosenbaum, Maidena L. Fulford, Hyatt & Rosenbaum, P.A., Indianapolis, IN, Attorneys for Appellee.
Stanley and Vera Holliday ("the Hollidays") appeal the trial court's judgment against them and in favor of Crooked Creek Villages Homeowners Association, Inc. ("Crooked Creek"). They raise two issues on appeal, which we restate as:
I. Whether the evidence is sufficient to support the trial court's judgment against them; and
II. Whether the trial court erred in awarding attorney fees to Crooked Creek.
We affirm.
The facts most favorable to the trial court's judgment reveal that Crooked Creek is a planned community of single-family residences located in Marion County and consists of 670 lots that are subject to plat covenants and restrictions. The plat and plat covenants for Crooked Creek were recorded in the Marion County Recorder's Office in May of 1994. The Hollidays purchased their residence in Crooked Creek on July 7, 1995.
As part of the construction of their home, the Hollidays had a satellite dish system installed that was capable of supplying Direct TV programming to televisions on the first and second floors of the home. The Hollidays eventually added a second satellite dish to supply programming to the basement television and a third dish for a television on their back porch. In addition, the Hollidays installed six masts behind their home, secured to the ground by guy wires. Five of the masts are approximately thirty feet tall, which is roughly even with the roofline of their home, and one mast is ten feet tall. Of the six masts, two function to provide support to a third mast and the ten foot mast. Five television antennae and three satellite dish antennae have also been attached to the masts. The antennae's primary purpose is to provide over-the-air reception of local television channels for ten televisions, nine videocassette recorders (VCRs), and seven satellite receivers. The Hollidays also subscribe to Comcast Cablevision, which provides cable television programming to ten televisions in the house. In total, there are seventeen televisions and nine VCRs in the Holliday household.
In May of 1998, Crooked Creek notified the Hollidays by letter that the antennae and satellite dish system were in violation of paragraph eleven of the Crooked Creek plat covenant. Paragraph eleven provides generally that erection of any structure on a Crooked Creek lot, such as the lot owned by the Hollidays, is subject to prior approval by Crooked Creek's Architectural and Environmental Control Committee.
The Hollidays responded to Crooked Creek's notice with a letter stating that paragraph eleven of the plat covenant was in clear violation of Federal Communications Commission (FCC) rules and was thus unenforceable as written. Following one further notice from its attorney urging the Hollidays to comply with the plat covenant, Crooked Creek filed the instant cause of action on July 20, 1998. Crooked Creek's complaint requested: (1) a trial court determination that the Hollidays' antennae and satellite dish system are in violation of the plat covenant; (2) an injunction requiring the removal of the antennae and satellite dishes; and (3) costs and attorney fees.
In April of 1999, the Hollidays moved the trial court for a continuance of the trial date in order to petition the FCC for a declaratory ruling regarding the enforceability of the plat covenant under 47 C.F.R. § 1.4000.1 The continuance was granted, and on October 8, 1999, the FCC issued its findings and order on the Hollidays' petition. The trial court subsequently conducted an evidentiary hearing to consider the effect of the FCC's findings and order. R. at 66.
On August 15, 2000, the trial court issued its findings of fact and judgment against the Hollidays and in favor of Crooked Creek. The trial court's order permitted the Hollidays "to maintain one mast attached to the side or back of their house which may support one satellite dish and one antenna." R. at 91. The trial court also awarded costs and attorney fees in the amount of $6000.00 to Crooked Creek. On September 13, 2000, Appellate Counsel entered his appearance on behalf of the Hollidays and filed a motion to correct error. The trial court issued an order denying the motion the following day.
The Hollidays appeal.
The Hollidays contend that the evidence is insufficient to support the trial court's judgment against them. Specifically, they argue that enforcement of paragraph eleven of the plat covenant is precluded by the declaratory ruling from the FCC in favor of the Hollidays. We disagree.
Our standard of review of sufficiency of the evidence is the same in civil cases as in criminal cases. Gash v. Kohm, 476 N.E.2d 910, 914 (Ind.Ct.App.1985). We consider only the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom. Davis v. State, 658 N.E.2d 896, 897 (Ind.1995). We will not reweigh the evidence or judge the credibility of the witnesses. Id. The judgment will be affirmed unless we conclude that it is against the great weight of the evidence. Gash, 476 N.E.2d at 914.
The trial court entered findings of fact and conclusions of law pursuant to Trial Rule 52(A). In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Crowley v. Crowley, 708 N.E.2d 42, 54 (Ind.Ct.App.1999) (citing Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind.Ct.App. 1997)). The judgment will be reversed only when clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks any supporting, probative evidence or reasonable inferences from such evidence to support them. Id.
The Crooked Creek plat covenant is a restrictive covenant. Paragraph eleven of the plat covenant provides in pertinent part:
ARCHITECTURAL DESIGN AND ENVIRONMENTAL CONTROL. No building, fence, walls, or other structure shall be erected, placed, and altered on any building lot in this Subdivision until the building plans, specifications and plot plan showing the location of such structures have been approved as to the conformity and harmony of external design with existing structure herein and as to the building with respect to topography and finished ground elevations by an Architectural and Environmental Control Committee (Committee).
R. at 194. The Hollidays do not contend that the antennae and masts at issue are anything other than "structures" within the meaning of paragraph eleven.
A restrictive covenant is a contract between a grantor and a grantee, which restricts the grantee's use of land. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind.Ct.App.1992). The general purpose of a restrictive covenant is to maintain or enhance the value of adjacent property by controlling the nature and use of surrounding properties. Id. Restrictive covenants are disfavored in the law. Id. However, because of their contractual nature, restrictive covenants are enforced as long as the restrictions are unambiguous and do not violate public policy. Id.
The Hollidays requested a declaratory ruling from the FCC regarding the enforceability of paragraph eleven of the plat covenant in light of 47 C.F.R. § 1.4000. The relevant portions of section 1.4000, also known as the FCC's Over-the-Air Reception Devices Rule ("Rule"), provide:
(iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent it so impairs, subject to paragraph (b) of this section.
47 C.F.R. § 1.4000(a)(1)(i)-(iv). The regulation further specifies that a restrictive entity "impairs installation, maintenance, or use of an antenna if it ... [p]recludes reception or transmission of an acceptable quality signal." Id. at (a)(3)(iii). The regulation nevertheless permits otherwise prohibited restrictions if they are "necessary to accomplish a clearly defined, legitimate safety objective" or if they are "necessary to preserve a prehistoric or historic district, site, building, structure." Id. at (b)(1)-(2). The burden of proving that a restriction complies with the Rule falls upon the party seeking to impose or maintain the restriction. Id. at (g).
In analyzing the enforceability of paragraph eleven within the context of the Rule, the FCC determined that it is...
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