Roberts v. Henson, Court of Appeals Case No. 10A01-1607-PL-1647

• Docket Nº: Court of Appeals Case No. 10A01-1607-PL-1647
• Citation: 72 N.E.3d 1019
• Case Date: April 18, 2017
• Court: Court of Appeals of Indiana

72 N.E.3d 1019

Wanda ROBERTS, et al. Appellants-Petitioners,
v.
Anthony HENSON, Appellee-Respondent.

Court of Appeals Case No. 10A01-1607-PL-1647

Court of Appeals of Indiana.

April 18, 2017

Attorney for Appellants : Larry O. Wilder, Jeffersonville, Indiana

Attorneys for Appellee : Richard R. Fox, Steven A. Gustafson, Fox Law Offices, LLC, New Albany, Indiana

Barnes, Judge.

Case Summary

1] Wanda and Ray Roberts, along with seventeen of their neighbors (collectively "the Appellants"), appeal the trial court's grant of summary judgment in favor of Anthony Henson and the denial of their motion for summary judgment. We reverse and remand.

Issue

[2] The restated issue before us is whether the trial court correctly concluded as a matter of law that a structure built by Henson in the Appellants' neighborhood did not violate the neighborhood's restrictive covenants.

Facts

[3] Since 1961, the Roberts have owned a home at 114 Altra Drive in Clarksville, in the Altra Subdivision neighborhood. Construction in the neighborhood is governed by restrictive covenants adopted and recorded in 1956. One of the covenants provides: "No lots shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to

[72 N.E.3d 1022

remain on any lot other than one detached single-family dwelling not to exceed one and one-half story in height and a private garage for not more than two cars." Appellants' App. p. 18. Another provision states: "No structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently." Id. at 19.

4] In November 2012, Henson purchased a lot next door to the Roberts at 112 Altra Drive; the lot was vacant after the previous residence on the lot burned down. Henson filed a residential building application with the Town of Clarksville to build a structure on the lot. The application stated that the structure would have two stories, with 1,760 square feet of living space and 3,200 square feet of garage space. Attached to the application were the following drawings of the proposed structure:

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[72 N.E.3d 1023

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72 N.E.3d 1024

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5] Thus, it appears from the drawings that the structure would consist of a two-story living area connected to a four-bay garage. Engineering reports prepared for the structure described it as a "barn." Id. at 56. The Town of Clarksville granted a permit to Henson to build the proposed structure, but noted, "Research of the covenants for this neighborhood is highly recommended!" Id. at 59.

[6] On March 18, 2013, after Henson began construction of his structure, the Roberts filed a "Petition to Enforce Restrictive Covenants" and a petition for an emergency restraining order compelling Henson to cease construction. Id. at 14. The trial court did not hold a hearing on the restraining order request. Seventeen other residents of the neighborhood subsequently intervened in the suit against Henson

[72 N.E.3d 1025

as plaintiffs. Henson eventually completed and moved into his structure while this litigation was pending.

7] On September 24, 2015, Henson filed a motion for summary judgment. Accompanying the motion was an affidavit from W. House Canter, a retired member of the State Home Inspector Board. In the affidavit, Canter stated, that Henson's "house is a single family dwelling with 1.5 stories," and that it had "a garage fit for two vehicles. This restriction is a use restriction." Appellee's App. p. 5. There is a grainy photograph of Henson's building attached to Canter's affidavit; it is not possible to discern much from the photograph other than it depicts two levels of windows above ground at the front. The affidavit also made the following observations about other houses in the neighborhood:

7. At 114 Altra Drive, the house has been remodeled to turn the original garage into living space and a detached garage has been built into the rear of the property. There is also a storage building behind the property not contemplated by the covenants.

8. At 116 Altra Drive, the house has an additional 2 car garage in addition to the original garage attached to the house.

9. 105 Altra Drive also has an additional detached 2 car garage in addition to the original garage attached to the house.

10. 119 Altra Drive also has an additional detached 2 car garage in addition to the original garage attached to the house.

11. 206 Altra Drive has been remodeled to turn the original garage into living space and a detached garage has been built into the rear of the property.

12. 124 Altra Drive has additional canopied parking for more than two cars.

[8] Id. at 6. Henson also submitted an affidavit on his own behalf, stating in part:

14. My home is not a barn. My home is my residence. The use of the term "pole barn" in my application for a building permit is a "construction" term and not a "use" term. I incorrectly identified the construction method in my application. My home is correctly identified as a "post-frame building". Regardless, the restrictions do not prohibit either of these construction methods.

15. My home is a one and a half story home and not a two story home.

Id. at 22.

[9] On April 14, 2016, the Appellants responded to Henson's motion and filed their own motion for summary judgment. Submitted with the Appellants' motion was an affidavit from professional home and commercial builder Troy Briner. Briner opined that after viewing Henson's building in photographs and in person, "it is my expert opinion that the building constructed on 112 Altra Drive, Clarksville, Indiana is what it was purported to be when the applications were secured from the town of Clarksville" and "that the building constructed is a 40 foot by 100 foot Pole Barn as described in all of the legal documents filed with the town." App. p. 108.

[10] On June 23, 2016, the trial court denied the Appellants' motion for summary judgment and granted Henson's motion. The Appellants now appeal.

Analysis

[11] When reviewing a grant of summary judgment, we must draw all reasonable inferences in favor of the non-moving party and affirm only " ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ "

[72 N.E.3d 1026

Siner v. Kindred Hosp. Ltd. P'ship , 51 N.E.3d 1184, 1187 (Ind. 2016) (quoting Ind. Trial Rule 56(C) ). Careful scrutiny must be given to a grant of summary judgment to ensure that the losing party was not improperly denied its day in court. Id. "Indiana's distinctive summary judgment standard imposes a heavy factual burden on the movant to demonstrate the absence of any genuine issue of material fact on at least one element of the claim." Id. In determining whether summary judgment was properly granted, we consider only the evidentiary matter the parties specifically designated to the trial court. Sargent v. State , 27 N.E.3d 729, 731 (Ind. 2015). "The fact that the parties have filed cross-motions for summary judgment does not alter our standard for review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." Reed v. Reid , 980 N.E.2d 277, 285 (Ind. 2012).

[12] "A restrictive covenant is an express contract between grantor and grantee that restrains the grantee's use of land." Harness v. Parkar , 965 N.E.2d 756, 760 (Ind. Ct. App. 2012). Such covenants maintain or enhance the value of land by restraining or regulating groups of properties. Id. at 760-61. Covenants control many aspects of land use, including what may be built on the land, how the land may be used, and alienability of the land. Id. at 761. "Property owners who purchase their properties subject to such restrictions give up a certain degree of individual freedom in exchange for the protections from living in a community of reciprocal undertakings." Villas W. II of Willowridge Homeowners Ass'n, Inc. v. McGlothin , 885 N.E.2d 1274, 1279 (Ind. 2008). Such covenants " ‘are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.’ " Id. (quoting Hidden Harbour Estates, Inc. v. Basso , 393 So.2d 637, 639 (Fla. Dist. Ct. App. 1981) ).

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