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Old Utica School Preservation, Inc. v. Utica Township

Court of Appeals of Indiana

December 4, 2015

Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pam Sandefur, Appellants-Petitioners,
Utica Township, John Durbin as Township Trustee, Jacob's Well, Inc., Kevin Williar, John Posey, Anthony Glotzback, and Barbara Williar, Appellees-Respondents

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          Appeal from the Clark Circuit Court. The Honorable Glenn Hancock, Special Judge. Trial Court Cause No. 10C04-1210-PL-123.

         ATTORNEY FOR APPELLANTS: Dustin T. White, White Law Practice, Jeffersonville, Indiana.

         ATTORNEY FOR APPELLEES: A. David Hutson, Hutson Legal, Jeffersonville, Indiana.

         May, Judge. Crone, J., and Bradford, J., concur.


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          May, Judge.

         [¶1] Old Utica School Preservation, Inc.; Kenneth Morrison; Scott Sandefur; and Pam Sandefur (collectively, " Citizens" ) appeal the denial of their Motion for Declaratory Judgment and Motion for Mandatory Injunction against Utica Township; John Durbin as Township Trustee; Jacob's Well, Inc.; Kevin Williar; John Posey; Anthony Glotzback; and Barbara Williar (collectively, " Appellees" ). They present three issues for our consideration, which we consolidate and restate as:

1. Whether the Jacob's Well use of the property known as the Old Utica School (" School" ) violates the language of the quitclaim deed conveying the property;
2. Whether the trial court erred when it found Citizens did not show " demonstrable injury, injury in fact and . . . a causal connection between the injury in fact and the actions of the Township and Jacobs [sic] Well." (Br. of Appellant at 8); and

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3. Whether the trial court erred when it determined the conveyance of the School to Utica Township was a fee simple with condition subsequent.

         [¶2] We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶3] In 2002, the Greater Clark County School Corporation (" GCCSC" ) conveyed the School to Utica Township via quitclaim deed. The quitclaim deed stated GCCSC conveyed School " subject to the conditions set out in IC 20-4-5-8(b)[1] that said property being transferred shall be used by Utica Township . . . for park and recreation purposes." [2] (App. at 24.) The conveyance included approximately 3.5 acres of land and the school building, which housed multiple classrooms, a basement, a cafeteria, and a gymnasium.

         [¶4] Following the conveyance, the School was used as shelter and for storage during Ohio River floods; for community activities such as auctions, bake sales, and basketball games; and as a food pantry. By 2011, the building had fallen into disrepair. Township Trustee John Durbin testified, " Parts of the ceilings were falling in. There were dead animals in the building. There was human waste all over the restrooms. . . . there were floors rotting out in the other side of the building." (Tr. at 93.) At that time, Utica Township was spending approximately $35,000.00 per year to maintain the School.

         [¶5] On June 17, 2011, Utica Township leased the School to Jacob's Well, a non-profit religious organization with a mission to provide transitional housing to single mothers and women who receive professional assistance for drug addiction. The founders of Jacob's Well, Kevin and Barbara Williar, financed $300,000.00 to renovate the School. The School has a locked area where the back classrooms once were. It serves as dormitories for the women receiving services from Jacob's Well. The front classrooms are used for classes associated with Jacob's Well services, and the cafeteria, gym, and some classrooms are available for use by the public. The Williars live in an apartment they built on the site.

         [¶6] On October 25, 2012, Citizens filed a Verified Complaint for Declaratory Judgment and Petition for Mandatory Injunction Issued Under Trial Rule 65 and an Indiana Trial Rule 52 Motion for Findings of Fact and Conclusions of Law. Citizens argued Appellees' use of the School was " contrary to the restrictive covenant contained in the School's Deed and contrary to State Law," (App. at 27), and requested:

[T]he Court declare that the restrictive covenant does, in fact, run with the land, is enforceable, the actions of Utica Township by failing to abide by the restrictive covenant in the School's Deed and executing a lease with Jacobs [sic] Well, Inc. for purposes other than park and recreation and actions of Jacobs [sic] Well, Inc., specifically, using the School as a residence and constructing multiple temporary and/or multiple permanent housing units in the School, to be contrary to State Law and that said

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Lease with Jacobs [sic] Well, Inc. is void.

( Id. at 27-28.) Citizens asked the trial court to enjoin Utica Township and Jacob's Well from further violating the alleged restrictive covenant. ( Id. at 28.)

         [¶7] The trial court granted Citizens' T.R. 52 request for findings on October 31, 2012. On November 1, 2012, Appellees answered Citizens' complaint and moved to dismiss it, arguing Citizens did not have standing to pursue a claim against Appellees. On December 7, 2012, Appellees filed a motion for summary judgment and a memorandum, and they designated evidence in support. On January 9, 2013, Citizens responded, and a special judge was appointed.

         [¶8] After a hearing, the trial court granted Appellees' motion for summary judgment, wherein the Appellees argued the Citizens did not have standing to bring a declaratory action. The trial court concluded " the language of said deed relating to specific use is a Restrictive Covenant satisfying the requirements of the grant statute," ( id. at 11), and Citizens did not have standing to bring a claim against Appellees. The trial court denied Citizens' motion to correct error.

         [¶9] Citizens appealed, and we reversed and remanded, holding Citizens had standing based on the public standing doctrine. Old Utica School Preservation, Inc. v. Utica Twp., 7 N.E.3d 327, 333 (Ind.Ct.App. 2014), trans. denied (" Utica I" ). On remand, the trial court denied Citizens' ...

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