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
from the Clark Circuit Court. The Honorable Glenn Hancock,
Special Judge. Trial Court Cause No. 10C04-1210-PL-123.
FOR APPELLANTS: Dustin T. White, White Law Practice,
FOR APPELLEES: A. David Hutson, Hutson Legal, Jeffersonville,
Judge. Crone, J., and Bradford, J., concur.
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
3. Whether the trial court erred when it determined the
conveyance of the School to Utica Township was a fee simple
with condition subsequent.
We affirm in part, reverse in part, and remand.
and Procedural History
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) that said property being transferred
shall be used by Utica Township . . . for park and recreation
purposes."  (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.
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.
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.
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
[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
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
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.
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.
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