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Roberts v. Henson

Court of Appeals of Indiana

April 18, 2017

Wanda Roberts, et al. Appellants-Petitioners,
v.
Anthony Henson, Appellee-Respondent,

         Appeal from the Clark Circuit Court Trial Court Cause No. 10C01-1303-PL-22 The Honorable Andrew Adams, Judge

          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 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:

         (IMAGE OMITTED).

         [¶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 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 ...

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