Stewart v. Jackson
| Decision Date | 07 June 1994 |
| Docket Number | No. 82A01-9310-CV-336,82A01-9310-CV-336 |
| Citation | 635 N.E.2d 186 |
| Parties | Kenneth G. STEWART, Caron C. Stewart, Appellants-Plaintiffs, v. Leigh A. JACKSON, Rodney S. Jackson, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Allan G. Loosemore, Jr., Evansville, for appellants.
Jeffrey A. Wilhite, David L. Clark, Kahn, Dees, Donovan & Kahn, Evansville, for appellees.
Today we decide whether day care in a residence violates restrictive covenants barring nonresidential uses of property and specifically excluding commercial activity uses. We are mindful of the impact of our decision on today's society because many Indiana neighborhoods have similar restrictive covenants and day care homes.
Appellant-plaintiffs Kenneth and Caron Stewart appeal the denial of their petition for an injunction to prohibit appellee-defendants Rodney and Leigh Jackson from maintaining a day care in their home. We heard oral argument on this case on April 12, 1994, at St. Mary's-of-the-Woods College.
The Stewarts and the Jacksons are next-door neighbors in an Evansville, Indiana, subdivision. Leigh Jackson operates a home day care for remuneration and maintains a state license to care for ten children in her home. At times, she has cared for ten children with the assistance of a friend. The Stewarts, on the other hand, have operated two businesses from their home in the past: a general contracting construction company and a wholesale toy business. The restrictive covenants governing the neighborhood require lots be used solely for residential purposes and specifically exclude any commercial business, trade, or activity.
In January 1992, Leigh applied to the Evansville Board of Zoning Appeals for a special use permit to care for 6-10 children in her home as required by a local ordinance. In accordance with the local ordinance, Leigh sent notices to her neighbors to inform them of her application. At the board hearing, Kenneth opposed the permit citing traffic problems.
On January 24, 1992, the Stewarts filed suit against the Jacksons seeking injunctive relief to prohibit the Jacksons from operating the day care in their home, contending it violated the subdivision's restrictive covenants forbidding nonresidential use of subdivision lots and expressly proscribing commercial business, activity, or trade on the lots. Thereafter, Leigh abandoned her attempt to care for more than five children by withdrawing her request for a special use permit and by reducing her home day care to five children.
At the bench trial, the Jacksons presented evidence that in addition to four other day care homes in the neighborhood, a salesman worked out of his home, a woman taught piano lessons, another woman sold crafts from her home, and another man ran a part-time computer consulting business in his home. In addition, the Stewarts had incorporated a toy business, "The Idea People," and had operated as a toy manufacturer and wholesaler from their home. More recently, Kenneth Stewart had operated a contracting construction company, called First City Builders, from his home. Kenneth parked his commercial vehicle with a sign advertising his business on it in his driveway in violation of other restrictive covenants. In conjunction with their construction business, several deliveries were made to the Stewarts' home. Independent contractors regularly parked their construction vehicles in the street and in the Stewarts' driveway.
Neighbors, other than the Stewarts, claimed that the Jacksons' day care was an asset to the neighborhood and that it enhanced their relationships. Describing the neighborhood, one neighbor observed twenty-one kids, ranging from one-year to sixteen-years old, playing along one street on a nice day.
The trial court found that the Stewarts had substantially violated the restrictive covenants by operating their two businesses in their home and that they had acquiesced in similar day care homes in the neighborhood. The trial court also determined that the Jacksons had not violated the restrictive covenants, finding that home day care is not a commercial business, trade, or activity. The trial court further held that restrictive covenants
prohibiting home day care are void as against public policy.
The Stewarts sought a permanent injunction, which is an extraordinary equitable remedy that should be granted only with caution. See Day v. Ryan (1990), Ind.App., 560 N.E.2d 77, 83. Injunctions are appropriate in cases where a restrictive covenant has been violated. Austin v. Durbin (1974), 160 Ind.App. 180, 310 N.E.2d 893. The denial of an injunction lies within the sound discretion of the trial court and will not be overturned unless it was arbitrary or amounted to an abuse of discretion. Sauer v. Bartholomew County Bd. of Zoning Appeals, No. 3A01-9305-CV-171, slip. op. at 5 (Ind.App. Feb. 28, 1994).
The trial court entered specific findings of fact and conclusions of law at the Stewarts' request. In reviewing the judgment, we must first determine whether the evidence supports the findings, and second, whether the findings support the judgment. Vanderburgh County Bd. of Comm'rs v. Rittenhouse (1991), Ind.App., 575 N.E.2d 663, 666, trans. denied. The judgment will be reversed only if it is clearly erroneous. Id. The Stewarts do not attack the findings of fact but claim the findings do not support the conclusions.
We first entertain the Jacksons' contention that the Stewarts' arguments regarding residential and commercial use should not be considered because the trial court also denied the Stewarts' injunctive claim based upon "unclean hands." The Jacksons declared that the Stewarts themselves violated the restrictive covenants by operating two businesses from their home.
Caron Stewart attacks the findings and conclusions as clearly erroneous because she was not involved in either business that Kenneth ran from their home. Her argument is meritless because she violated the covenants by permitting her husband's commercial use of their property.
The Stewarts jointly raise two procedural arguments. They claim that the affirmative defense of unclean hands was not properly pled or presented to the trial court, so it is waived on appeal. See Ind. Trial Rule 8(C) (); Molargik v. West Enterprises, Inc. (1993), Ind.App., 605 N.E.2d 1197, 1199 (). However, if a defense is not raised in the pleadings, but was tried by the express or implied consent of the parties, then Ind. Trial Rule 15(B) treats it as if it had been properly raised. Molargik, at 1200. Thus, we reject the Stewarts' contention by noting that the Jacksons clearly asserted the affirmative defense of unclean hands at trial without objection from the Stewarts; therefore, the issue was tried by the consent of the parties. See Record at 68, 99.
The Stewarts also argue that the trial court did not base its judgment upon this defense. They are mistaken. The trial court clearly found that the Stewarts operated two businesses from their home; operated a general contracting construction company out of their home; continued to run that business for at least seven months after filing this action; and, parked vehicles on the street. The court further found that the Stewarts "have substantially violated the restrictive covenants." Record at 318-19. The trial court designated all findings of fact to be deemed conclusions of law. Record at 320. Unarguably, the above-noted findings and conclusions show that one of the theories upon which the trial court denied the Stewarts' claim was unclean hands.
Alternatively, the Stewarts argue that if the trial court based its decision on the theory of unclean hands that it was erroneous. They claim that they purged themselves by discontinuing their home businesses. The unclean hands doctrine is an equitable tenet which demands one who seeks equitable relief to be free of wrongdoing in the matter before the court. W & W Equipment Co. v. Mink (1991), Ind.App., 568 N.E.2d 564, 576, trans. denied. Indiana has recognized the ability to purge oneself of wrongdoing, which effectively restores the right to equitable relief. See Keller v. Indiana Dept. of State Revenue (1988), Ind.Tax, 530 N.E.2d 787, 790, appeal dismissed, Ind., 549 N.E.2d 372. Because the Stewarts no longer operate any businesses from their home, they have purged themselves of unclean hands. 1 The Stewarts' claim is not defeated on the basis of unclean hands; hence, we reverse the trial court's determination regarding unclean hands.
The Stewarts contend that the trial court erred as a matter of law in concluding that home day care is a residential use and not a commercial business, trade, or activity of a commercial nature. They essentially assert that home day care is a service for profit, and therefore, constitutes a commercial business, trade, or activity.
A "child care home" is defined statutorily in Indiana as:
a residential structure in which at least six (6) children (not including the children for whom the provider is a parent, stepparent, guardian, custodian, or other relative) at any time receive child care from a provider:
1) while unattended by a parent, legal guardian, or custodian;
2) for regular compensation; and
3) for more than four (4) hours but less than twenty-four (24) hours in each of ten (10) consecutive days per year, excluding intervening Saturdays, Sundays, and holidays.
IND. CODE 12-7-2-28.6 (1994). A person may not operate a child care home without a license in Indiana. IND. CODE 12-17.2-5-1. Indiana further limits the maximum number of children to 16 in a home day care. IND. CODE 12-7-2-33.8 (1994). By definition, a license is not required for the care of five or less children in one's home. As opposed...
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