Wanda Roberts, et al. Appellants-Petitioners,
Anthony Henson, Appellee-Respondent,
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,
Attorneys for Appellee Richard R. Fox Steven A. Gustafson Fox
Law Offices, LLC New Albany, Indiana
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.
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.
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.
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:
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.
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.
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 ...