Hrisomalos v. Smith, No. 53A05-9201-CV-7

Docket NºNo. 53A05-9201-CV-7
Citation600 N.E.2d 1363
Case DateOctober 19, 1992
CourtCourt of Appeals of Indiana

Page 1363

600 N.E.2d 1363
Frank N. HRISOMALOS, Athena R. Hrisomalos, Dennis L.
Friesel, Donna M. Friesel, John M. Findley and
Marjorie E. Findley, Appellants-Intervenors,
v.
Marc S. SMITH, Beth A. Smith and Minnette D. Deiss,
Appellees-Petitioners.
No. 53A05-9201-CV-7.
Court of Appeals of Indiana,
Fifth District.
Oct. 19, 1992.

Page 1364

Geoffrey M. Grodner, Mallor Grodner & Bohrer, Bloomington, for appellants-intervenors.

Page 1365

Frank A. Barnhart, Barnhart Sturgeon & Spencer, Bloomington, for appellees-petitioners.

SHARPNACK, Chief Judge.

On January 2, 1991, Marc and Beth Smith, who wished to purchase lots Nos. 7 and 8 located on the southern edge of Bloomington's Hillsdale First Addition ("Hillsdale") in order to operate a dentist's office, filed a complaint for declaratory judgment asking that a restrictive covenant benefiting the Hillsdale subdivision be declared invalid with respect to lots Nos. 7 and 8. Minnette Deiss, the owner of the lots, later joined in the Smiths' petition. (Petitioners will be referred to collectively as "Smiths") Frank N. Hrisomalos, Athena R. Hrisomalos, Dennis L. Friesel, Donna M. Friesel, John M. Findley and Marjorie E. Findley ("Intervenors") intervened pursuant to Ind. Trial Rule 24(A) to oppose the Smiths' complaint for declaratory judgment. Intervenors now appeal the trial court's order declaring the covenant that restricted to residential use property within the subdivision to be unenforceable with regard to lots Nos. 7 and 8. We reverse.

Intervenors raise three issues for review which we consolidate and restate as:

1. Whether the trial court's findings supported its conclusion that the restrictive covenant in question was invalid due to radical changes within and surrounding the subdivision.

2. Whether the trial court's findings supported a conclusion that Intervenors were barred from enforcing the restrictive covenant under the doctrine of acquiescence.

Hillsdale consists of ninety-six lots and was platted in March of 1946. The plat contained the following restrictive covenant:

"BUILDINGS: Only one single family dwelling house including necessary accessory buildings may be erected on each lot in this addition. No building or part thereof erected in this addition shall be used for business or manufacturing of any kind...."

(Record, p. 177.) Intervenors all own lots within the subdivision. Since 1946, there has been extensive commercialization in the area surrounding Hillsdale, and East Third Street, which borders Hillsdale to the south, has had a substantial increase in motor traffic. Within the neighborhood itself, there have been two significant developments not in conformity with the covenant. In 1953, the First Church of Christ Scientist ("Church") bought land within Hillsdale and began to operate a church on the property. The then owners of lots within Hillsdale unanimously consented to the conveyance and use of the property. In 1985, Dr. Norman Houze purchased property on the southern edge of Hillsdale and opened a chiropractic office which he operated continuously through the time of the hearing. Neither Intervenors nor any other lot owners acted to oppose such use of Dr. Houze's land.

The court granted the Smith's complaint and entered special findings. The court's findings of fact include the following relevant passages:

"Since 1953, the area surrounding the Addition has changed dramatically. Gone are the farms and lazy meadows within which the Addition lay in idyllic bliss. Come instead is the hustle and bustle of commercialized progress, as the city of Bloomington has grown....

Although there has been considerable commercialization outside the addition, residents within the Addition have steadfastly maintained their residential way of life. Within the addition neighbors still gather, and children still play, all in keeping with the residential mandate imposed by the covenant...."

(Record, p. 85.)

The court followed its findings with a lengthy discussion of applicable law, and concluded that a restrictive covenant will not be invalidated unless a radical change has occurred such that the original purpose of the covenant has been defeated. Following its discussion regarding radical change, the court stated the following:

"There has been a dramatic and compelling change within the Addition, for a

Page 1366

chiropractic office has been allowed to remain since 1985 without protest or action on the part of the other property owners. Intervenors have acquiesced in the violation of the restrictive covenant for Hillsdale Addition....

A covenant is a contract, and only those bound by the contract may enforce it. Landowners who seek the enforcement of restrictive covenants must do so immediately and consistently.... A court in equity cannot overlook their acquiescence. The rule as stated in Wischmeyer v. Finch [citation omitted], is that "... injunctive relief will be denied where complainant has been guilty of laches, waiver, or acquiescence." While this present case does not involve injunctive relief, this court's declaratory relief shall follow the same rule, for should this court dismiss this case as unripe, the same parties would certainly appear before it again, with only their titles changed from Petitioner to Respondent, and from Intervenor to Petitioner.

Thus, this court concludes that the presence of the chiropractor's office within the Addition adjacent to or in close proximity to the Intervenor's Lots, and the heavy commercialization outside the Addition are of such weight as to preclude enforcement of the restrictive covenant with regard to Lots 7 and 8...."

(Record, p. 92.)

When we review a trial court's judgment based upon findings of fact and conclusions of law, we will reverse only if the findings and conclusions are clearly erroneous. A judgment is clearly erroneous when it is unsupported by the findings and conclusions. Findings of fact are clearly erroneous if the record fails to disclose any facts in evidence or any reasonable inferences from the evidence in support of the findings. Donavan v. Ivy Knoll Apts. Partnership (1989), Ind.App., 537 N.E.2d 47, 50. We will not reweigh the evidence and we will affirm the trial court unless the evidence, when viewed in a light most favorable to the judgment, points uncontrovertibly to an opposite conclusion. Id. at 50-51.

In property law, the term "restrictive covenant" describes a contract between a grantor and grantee which restricts the grantee's use of land. Generally, the purpose behind restrictive covenants is to maintain or enhance the value of adjacent lands by controlling the nature and use of surrounding properties. Cunningham v. Hiles (1979), 182 Ind.App. 511, 515, 395 N.E.2d 851, 854, order modified on reh'g, 402 N.E.2d 17. Although the law does not favor restrictive covenants, the contractual nature of the restrictions has led courts to...

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13 practice notes
  • 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
    ...use of lots within the subdivision for a church and chiropractic office, rendered the residential restrictive covenant unenforceable. 600 N.E.2d 1363, 1365-67 (Ind.App.1992). The plaintiff, a landowner within the plat, wanted to maintain a dentist's office on his lot. Id. at 1365. The India......
  • Stewart v. Jackson, No. 82A01-9310-CV-336
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 1994
    ...defense of acquiescence where the party seeking the injunction acquiesced in similar violations. Hrisomalos v. Smith (1992), Ind.App., 600 N.E.2d 1363, 1367. The trial court must consider three factors to determine acquiescence: 1) the location of the objecting landowners relative to both t......
  • TIPPECANOE ASSOC. II, LLC v. Kimco Lafayette 671, Inc., No. 79A05-0302-CV-85.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 6, 2004
    ..."when `the restrictions are unambiguous and do not violate public policy.'" Bagko, 640 N.E.2d at 67 (quoting Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind.Ct.App.1992)). Covenants that restrict business activity generally do not violate public policy.4 Covenants § 7 (citing Ferris v. Am. ......
  • Roberts v. Henson, Court of Appeals Case No. 10A01-1607-PL-1647
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 2017
    ...enforcement of a restrictive covenant may plead as a defense the opponent's acquiescence to similar violations." Hrisomalos v. Smith , 600 N.E.2d 1363, 1367–68 (Ind. Ct. App. 1992). When analyzing a defense of acquiescence, the focus is the effect of the alleged prior violations upon the ab......
  • Request a trial to view additional results
13 cases
  • 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
    ...use of lots within the subdivision for a church and chiropractic office, rendered the residential restrictive covenant unenforceable. 600 N.E.2d 1363, 1365-67 (Ind.App.1992). The plaintiff, a landowner within the plat, wanted to maintain a dentist's office on his lot. Id. at 1365. The India......
  • Stewart v. Jackson, No. 82A01-9310-CV-336
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 1994
    ...defense of acquiescence where the party seeking the injunction acquiesced in similar violations. Hrisomalos v. Smith (1992), Ind.App., 600 N.E.2d 1363, 1367. The trial court must consider three factors to determine acquiescence: 1) the location of the objecting landowners relative to both t......
  • TIPPECANOE ASSOC. II, LLC v. Kimco Lafayette 671, Inc., No. 79A05-0302-CV-85.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 6, 2004
    ..."when `the restrictions are unambiguous and do not violate public policy.'" Bagko, 640 N.E.2d at 67 (quoting Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind.Ct.App.1992)). Covenants that restrict business activity generally do not violate public policy.4 Covenants § 7 (citing Ferris v. Am. ......
  • Roberts v. Henson, Court of Appeals Case No. 10A01-1607-PL-1647
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 2017
    ...enforcement of a restrictive covenant may plead as a defense the opponent's acquiescence to similar violations." Hrisomalos v. Smith , 600 N.E.2d 1363, 1367–68 (Ind. Ct. App. 1992). When analyzing a defense of acquiescence, the focus is the effect of the alleged prior violations upon the ab......
  • Request a trial to view additional results

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