Newell v. Standard Land Corp., 2--173A25
| Decision Date | 28 June 1973 |
| Docket Number | No. 2--173A25,2--173A25 |
| Parties | James O. NEWELL et al., Appellants, v. STANDARD LAND CORPORATION et al., Appellees. |
| Court | Indiana Appellate Court |
Mentor A. Kraus, John M. Clifton, Jr., Wayne L. Witmer, Barrett, Barrett & McNagny, Fort Wayne, for appellants; J. A. Bruggeman, Fort Wayne, of counsel.
Robert L. Thompson, Jr., Hoffman, Moppert, Solomon & Miller, Fort Wayne, for appellee, Standard Land Corp.
Carl J. Suedhoff, Jr., Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellees, John C. Gould, Mrs. John C. Gould, and Scotia Development Corp.
James R. Solomon, Hoffman, Moppert, Solomon & Miller, Fort Wayne, for appellees, Otis McFadden, Ezra Shanebeck, Robert Hattersly, William Bergdall, Merle Felger, William Sowers, William Sweet, George Dunten, and Charles Hoemig, Individually and Collectively as Allen County Plan Commission.
SUMMARY JUDGMENT CASE.
Appellants filed a complaint in multiple paragraphs alleging that they were the owners of real estate in Aboite Township, Allen County, Indiana which is contiguous to Brook Hollow Drive. Count I of the complaint alleged that the Appellants had purchased their real estate from the Appellee, Standard Land Corporation, hereafter SLC, and in purchasing it SLC represented to them that said real estate was a part of and subject to the land use restrictions of Brook Hollow Estates. It further alleged that SLC and Appellees, John C. Gould and Scotia Development Corporation, hereafter SDC, owned or claimed to own land which is a part of Brook Hollow Estates and were threatening to use or develop the same in violation of the restrictions applicable to said real estate. It was further alleged that Appellees, John C. Gould and SDC, had filed a preliminary plat of the proposed development with the Allen County Plan Commission, which preliminary plat included a substantial portion of Brook Hollow Estates and proposed uses therein in violation of the Brook Hollow Estates restrictions. Count I prayed for an injunction from proceeding on said proposed plat. Count II prayed for money damages on the basis of the allegations in Count I. Count III was a class action which asserted that Allen County Ordinance number 9--1960 on its face violated the Fourteenth Amendment of the Constitution of the United States and also violated Article I, Section 21 and 23, of the Constitution of the State of Indiana, and further alleged that Allen County ordinance 9--1960 was illegal, arbitrary and capricious in that it violated the enabling legislation of the State of Indiana authorizing the establishment of zoning ordinances and plan commissions in that it did not specify ecological factors as a criterion to be considered in respect to proposed plats. A permanent injunction was prayed for in Count III.
Count IV alleged that Allen County ordinance 9--1960 was unconstitutional in that it provided unreasonable classifications of persons entitled to be given notice and to be heard in respect to proposed plats.
Count V alleged that the approval of a lake on Appellees' land was made without utilization of proper standards and was therefore arbitrary and capricious in violation of the Fourteenth Amendment of the Constitution of the United States.
Count VI alleged that the proposed sewage treatment plant in conjunction with the development proposed by the Appellees would empty into the result in the pollution of Indian Creek, a natural course, and prayed for an injunction preventing the defendants from erecting or constructing a sewage treatment plant to empty into Indian Creek.
In June of 1968 Appellee, John C. Gould, purchased approximately 37 acres of land in Aboite Township, Allen County, Indiana from Appellee SLC. Part of the land Gould purchased from SLC was a section in what is commonly known as Brook Hollow. At the time of Gould's purchase, some of the Appellants owned portions of Brook Hollow consisting of parcels ranging from three acres to twelve acres each. These Appellants had also purchased their land from SLC and assert that their purchases were made with certain restrictions imposed thereon. The record here clearly discloses that there was never any express written covenants covering the restrictions of the use of the land purchased by the Appellants from SLC and there was never any such restrictions recorded. The Appellants have asserted by way of deposition testimony that SLC made certain verbal agreements as to restrictions of use concerning the estates which the Appellants purchased. Gould has sworn to the fact that SLC told him that there were no restrictions of use when he purchased his land subsequent to that of the Appellants in June of 1968. Gould claims ignorance of any alleged restrictions of use which may have existed between the Brook Hollow Appellants and SLC on the basis that he had no actual knowledge of the same and that no public record disclosed the existence of said restrictions. After Gould purchased the real estate he decided to develop a part of the land which consisted of approximately 37 acres by the construction of a lake and a tertiary disposal sewage treatment plant on the far southeast corner thereof, not adjacent to any land owned by the Appellants in Brook Hollow. The plans for development consisted of common areas for recreation, bridle paths, natural walkways, water falls and a lake and beach, all of which are adjacent to a planned residential area on land adjacent to but not a part of Brook Hollow. In November of 1970, over two years after Gould purchased the land he submitted his development plan to the Allen County Plan Commission. The complaint in this case was filed by the Appellants on January 7, 1971. In November 1970 and March 13, 1971 the Allen County Zoning ordinance was amended to cause a broader group of persons and legal entities to be given notice of public hearings which are conducted pursuant to plans submitted by those such as the ones submitted by Gould. The public hearing concerning Gould's plan took place on April 14, 1971 and preliminary approval of the Gould plan was approved by the Allen County Plan Commission. There was a public hearing conducted on September 8, 1971 to consider the final plat of the proposed plan and final approval was given. The Allen County Plan commission provided notice to all of the Appellants in this cause of said hearing because all Appellants were within the broad group of persons defined in the ordinance as having a 'probable interest' in the Plan Commission's approval or disapproval of the Gould plan. Before the Allen County Plan Commission granted approval of Gould's plan, the Natural Resources Commission of the State of Indiana approved the construction of the lake. Also, the Indiana State Board of Health approved the sewage treatment aspect of Gould's plan and found it to be compatible with the health of the community. The Scotia Development Corporation is the legal entity which John C. Gould and wife have chose to utilize in developing the land purchased by Gould and that corporation is entirely owned by John C. Gould and his wife.
Appellees John C. Gould, his wife, and SDC moved for summary judgment. Numerous affidavits, depositions, answers to interrogatories, and responses to request for admissions were before the trial court in ruling on said motion for summary judgment. (It should be noted that summary judgment was not requested by nor granted to the Appellee SLC and SLC is subject to a trial on merits on the allegations in Appellants' complaint.) The trial court granted the motion for summary judgment of Goulds and SDC and stated the reasons for granting summary judgment.
The propriety of granting said motion for summary judgment is challenged on this appeal.
One of the key items upon which the Appellants rely to show the existence of a genuine issue of material fact is the affidavit of attorney. John M. Clifton, Jr. That affidavit reads as follows:
'1. That he is the attorney for the plaintiffs and authorized by them to make this affidavit for and on their behalf.
2. That on the afternoon of December 7, 1970, affiant did in fact have a telephone conversation with Edward J. Moppert, Jr., attorney, officer and director of Standard Land Corporation, defendant herein.
3. That during said conversation, the aforesaid Edward J. Moppert, Jr. did in fact advise affiant that the area abutting Brook Hollow Drive had not been platted as Sam Fletcher or Floyd Kelsey did not want to go to the expense of platting the area.
4. That also as a part of said telephone conversation, the aforesaid Edward J. Moppert, Jr. did in fact state to the affiant that everyone who purchased land from Standard Land Corporation in the Brook Hollow area knew about the restrictions and had agreed with Standard Land to follow same in their use of their property. Mr. Moppert further advised affiant that everybody living in Brook Hollow was getting along in a friendly manner with the restrictions, and there had been no problems.
5. That the aforesaid Edward J. Moppert, Jr., did in fact, on December 7, 1970, by telephone, tell the affiant that he was sure that Dr. Gould, who had purchased land from Standard Land Corporation abutting on Brook Hollow Drive, knew about restrictions on the use of the real estate at the time of the sale, and that Dr. Gould, as far as Mr. Moppert knew, would be utilizing the real estate he purchased from Standard Land for estate sized lots. The said Edward J. Moppert also advised affiant that he hoped, with Dr. Gould's new development plans, there would not be any trouble.'
The Appellees challenge the sufficiency of the affidavit of John M. Clifton, Jr. within the...
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