King v. Ebrens
| Decision Date | 11 March 2004 |
| Docket Number | No. 24A01-0308-CV-308.,24A01-0308-CV-308. |
| Citation | 804 N.E.2d 821 |
| Court | Indiana Appellate Court |
| Parties | Anna KING, William H. Stuckey and Crystal Stuckey, Appellants-Plaintiffs, v. Eric C. EBRENS and Jennifer M. Ebrens, Appellees-Defendants. |
George A. Leininger, Ewbank, Kramer & Dornette, Lawrenceburg, IN, Lowell C. McMillin, Mullin, McMillin & Rychener, Brookville, IN, Attorneys for Appellants.
David W. Stone IV, Stone Law Office, Anderson, IN, Jerome J. Charls, Harrison, OH, Attorneys for Appellees.
In January 2002, Anna King and William and Crystal Stuckey ("the Homeowners") filed their complaint for injunctive relief seeking an order from the trial court that Eric and Jennifer Ebrens remove a pole barn that the Ebrens had built on their property. The complaint alleged that the pole barn violated a restrictive covenant. The Homeowners and the Ebrens filed cross-motions for summary judgment, and the trial court granted the Ebrens' motion and denied the Homeowners' motion. The Homeowners now appeal and present the following dispositive issue for review: whether the trial court erred when it entered summary judgment for the Ebrens.
We affirm.
In 1979, Donald and Elaine Smith purchased a tract of land, containing approximately 101 acres, in Franklin County. A part of the tract fronted on Spaeth and Reservoir Roads, and at the time the Smiths acquired the tract, they intended to divide that part into lots for single family residential development. In 1979, the Smiths did not have a lot configuration in mind, nor did they have a timetable by which the lots were to be sold for development.
In 1980, the Smiths conveyed a lot to Nicholas and Anna King1 by Warranty Deed. The King's Deed contains several restrictive covenants, which provide in relevant part:
RESTRICTIVE COVENANTS
In 1983, the Smiths conveyed another lot by Warranty Deed, which contained the same restrictive covenants, to William and Crystal Stuckey. Thereafter, the Smiths continued to sell portions of the remaining property in a piecemeal manner. They sold parts of the property that fronted on Spaeth and Reservoir Roads, in addition to other property that did not front those roads. But all property sold that fronted on Spaeth and Reservoir Roads contained the same or similar restrictive covenants as those which appear in King's and the Stuckeys' Deeds.
In 1993, the Smiths sold the remaining three lots that fronted on Spaeth and Reservoir Roads. However, instead of selling the lots in the same piecemeal fashion, the Smiths platted those lots together as the Don Smith Subdivision. They did this to comply with Franklin County's Unified Zoning Ordinance. The Plat of the Don Smith Subdivision contains substantially the same restrictive covenants as those which appear in King's and the Stuckeys' Deeds, including the covenant that "No structure shall be erected or placed on the real estate other than the dwelling above referred to." That Plat was recorded in June 1993. Both King's and the Stuckeys' lots abut lots in the Don Smith Subdivision and appear on the Plat. However, King's and the Stuckeys' lots are not part of the Don Smith Subdivision.
In 1995, the Smiths sold Tract # 2 of the Don Smith Subdivision to Jennifer Ebrens, who at that time was known as Jennifer Weileman.2 The Warranty Deed, recorded in February 1995, described the conveyed real estate in part as, "Tract Number Two (2) in Don Smith Subdivision, ... and subject to the Restrictive Covenants as recorded in Plat Book B page 226-227, Slide No. 187, on June 10, 1993, as appears in the records in the office of the Recorder of Franklin County, Indiana." The Stuckeys' lot is immediately west of the Ebrens' lot, and the southeasterly portion of King's lot abuts the north property line of the Ebrens' lot.
In October 2001, the Ebrens received approval from Franklin County to construct a 30 × 40 foot pole barn on their lot. After the Ebrens began construction, counsel for King sent a letter to the Ebrens advising them that they were in violation of Restrictive Covenant # 4, as contained in the Plat. The Ebrens thereafter completed construction of their pole barn.
In January 2002, the Homeowners filed a complaint for injunctive relief.3 In April 2002, the Homeowners filed a summary judgment motion, and in December, the Ebrens filed a cross-motion. The trial court issued its Order in May 2003, which provides in relevant part:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion for Summary Judgment filed April 16, 2002 is hereby denied and Defendants' Motion for Summary Judgment filed on December 6, 2002 is hereby granted.
The Homeowners filed a Motion to Correct Error, which the court denied. This appeal ensued.
When reviewing the grant or denial of summary judgment, we use the same standard used by the trial court. Allstate Ins. Co. v. Smith, 656 N.E.2d 1156, 1157 (Ind. Ct.App.1995). Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). In the context of cross-motions for summary judgment, the trial court must deal with each motion separately, construing the facts and inferences to be drawn therefrom in a light most favorable to the non-moving party. Allstate, 656 N.E.2d at 1157. If the facts are undisputed, our task is to determine the law applicable to those facts, and whether the trial court correctly applied it. Id.
The dispositive substantive issue presented is whether the Homeowners, who do not own property in the Don Smith Subdivision, have standing to enforce the restrictive covenant in the Plat that prohibits the Ebrens from erecting a pole barn. The Homeowners assert that they have standing on two grounds. First, they point out that the Homeowners' Deeds contain substantially the same restrictive covenants as those contained in the Plat of the Don Smith Subdivision, and according to covenant number 18, such restrictions may only be modified, or an exception made thereto, if 80% of the owners of similarly-restricted land agree to the modification. Stated differently, the Homeowners allege that they have standing to enforce the covenant because their property is "similarly-restricted" to the Eberns'. The Homeowners also contend that they have standing because all of the parties' lots were sold by a common grantor, the Smiths, who had a common scheme or plan for development, which created mutual rights among all of the grantees, not just those grantees who own lots within the Don Smith Subdivision. The Ebrens counter that the Homeowners lack standing because they do not own property in the Don Smith Subdivision. We address their arguments in turn.
Initially, we address the dispute over the Smiths' Amended Affidavit, which the Homeowners designated in support of their summary judgment motion. In that Amended Affidavit, the Smiths state, among other things, that after they acquired the 101 acres in 1979, they "had a common and general plan in selling off pieces of the parent parcel for construction thereon of single family residences to provide that each and every tract so conveyed would be subject to the same mutually enforceable restrictive covenants...." The Smiths' Amended Affidavit was executed on April 22, 2002.
Thereafter, on September 9, 2002, the Ebrens' counsel took Don Smith's deposition. During the deposition, counsel asked Smith whether he had a "master plan" for the development of the property that fronted Spaeth and Reservoir Roads. Smith stated that he did not have a master plan. Based on Smith's denial that he had a "master plan" for the property during his deposition, the Ebrens argue on appeal that Smiths' Amended Affidavit should not be considered because it conflicts with Smith's deposition testimony. In support, they cite case law which sets forth the general rule that a party cannot create an issue of fact by submitting an affidavit that contradicts prior deposition testimony. Schlosser v. Rock Industries, Inc., 796 N.E.2d 350, 358 (Ind.Ct.App.2003); Gaboury v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind.1983). They also direct us to a case in which the Seventh Circuit Court of Appeals determined that the same rationale applies where the affidavit is given before the deposition testimony. See Darnell v. Target Stores, 16 F.3d 174, 177 (7th Cir.1994). Further, the Ebrens maintain that the Affidavit contains conclusory statements that are not supported by designated evidence.
But the Ebrens did not raise their objections to the Smiths' Amended Affidavit to the trial court. Rather, they assert for the first time on appeal that the Amended Affidavit should not be considered. It is well settled that arguments not presented to ...
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