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River Ridge Development Authority v. Outfront Media, LLC

Court of Appeals of Indiana

July 15, 2019

River Ridge Development Authority, Appellant-Plaintiff,
v.
Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Partnership, The Town of Utica, and the Utica Board of Zoning Appeals, Appellees-Defendants.

          Appeal from the Clark Circuit Court The Honorable Richard Striegel, Senior Judge Trial Court Cause No. 10C02-1709-PL-99

          ATTORNEYS FOR APPELLANT Anne K. Ricchiuto Brian J. Paul Matthew C. Olsen Indianapolis, Indiana David A. Lewis Jeffersonville, Indiana

          ATTORNEYS FOR APPELLEES: OUTFRONT MEDIA, LLC AND DAVID WATKINS Alan S. Townsend Bradley M. Dick Indianapolis, Indiana

          ATTORNEY FOR APPELLEES: NO MOORE, INC. AND THE SCHLOSSER FAMILY LIMITED PARTNERSHIP Michael M. Maschmeyer Jeffersonville, Indiana

          TAVITAS, JUDGE

         Case Summary

         [¶1] River Ridge Development Authority ("River Ridge") appeals the trial court's order granting attorney fees to Outfront Media, LLC ("Outfront"), David Watkins, No Moore, Inc. ("No Moore"), the Schlosser Family Limited Partnership ("the Schlosser Family"), the Town of Utica, and the Utica Board of Zoning Appeals ("Utica BZA") (collectively, "Appellees"). We reverse.

         Issue

         [¶2] River Ridge raises numerous issues, which we revise and restate as whether the trial court's award of attorney fees to Appellees is clearly erroneous.

         Facts

         [¶3] River Ridge is "a military reuse authority and governmental authority duly formed and existing under Indiana Code sections 36-7-30-1, et seq." Appellant's App. Vol. IV p. 14. River Ridge "oversees construction and development of the River Ridge Commerce Center," a business and manufacturing park near the Ohio River and State Road 265 in Clark County, Indiana. Id. at 15.

         [¶4] Outfront is a company that conducts an outdoor advertising business. In December 2015, Outfront sought to construct seven billboards on property owned by No Moore and the Schlosser Family near the property owned by River Ridge. At some point, the Utica Town Council President, Steve Long, approved Outfront's permit applications in an undated memo. On October 11, 2016, the Utica Town Council's attorney informed the Council that they needed to "ratify" Long's signature on the permits, which it did. Appellant's App. Vol. IV p. 164. In March 2017, Watkins, an employee of Outfront, filed outdoor advertising sign permit applications with the Indiana Department of Transportation ("INDOT"). In April 2017, INDOT approved the applications for the seven permits filed by Watkins.

         [¶5] During the Fall of 2016 and again in the Fall of 2017, River Ridge contacted Outfront to discuss the possibility of Outfront constructing signage at the entrance to River Ridge's facility. Appellees claim that River Ridge was interested in a billboard, while River Ridge claims it was interested in a "monument sign, some type of signage strictly for River Ridge." Tr. Vol. II p. 84.

         [¶6] In August 2017, the Kentuckiana Regional Planning and Development Agency[1]sent information to INDOT to nominate a portion of State Road 265 as a scenic byway. River Ridge, along with several other groups and governmental agencies, supported the nomination.

         [¶7] In September 2017, River Ridge filed a petition with the Utica BZA and challenged the validity of the permit issued by the Utica Town Council for the construction of the seven billboards ("BZA Petition"). River Ridge alleged that the permits violated the Utica Zoning Ordinance and that the Town Council President lacked authority to issue the permits. At a November 14, 2017 hearing before the Utica BZA, the BZA refused to hear the petition because the BZA was "not in the position to make or review or modify any determination made by the executive of this town." Appellant's App. Vol. V p. 97.

         [¶8] Also in September 2017, River Ridge filed a complaint with the Clark County Circuit Court against Outfront, Watkins, No Moore, the Schlosser Family, the Town of Utica, and INDOT regarding the billboards. The complaint contained four counts: (1) a claim for declaratory judgment that neither the billboards nor the INDOT permits were allowed; (2) a claim for public nuisance caused by the billboards; (3) a claim for private nuisance caused by the billboards; and (4) a request for a permanent injunction. Appellees filed multiple motions to dismiss, and River Ridge subsequently raised an issue regarding a conflict of interest for the Town of Utica's counsel.

         [¶9] Before the trial court ruled on the motions to dismiss and after the Utica BZA refused to hear the BZA Petition, River Ridge filed a motion to amend its complaint to add certain claims and dismiss other claims, which the trial court granted. In its December 11, 2017 order, the trial court stated:

(a) River Ridge's First Amended Complaint and Verified Petition for Judicial Review (the "Amended Complaint"), attached to Plaintiff's Motion as Exhibit 1, is hereby deemed filed as of the date of this Order; (b) Plaintiff's prior claims of public and private nuisance (Counts II and III of Plaintiff's initial Complaint) are hereby dismissed, with each party to bear its own attorneys' fees and costs related to such voluntarily dismissed claims; (c) Defendants the Indiana Department of Transportation ("INDOT") and Joe McGuinness, as Commissioner of INDOT, are hereby dismissed from this litigation without prejudice, with each party to bear its own attorneys' fees and costs; and (d) all remaining Defendants shall respond to the Amended Complaint within thirty (30) days after conducting a mediation of this matter, which mediation is currently being scheduled by the parties.

Appellant's App. Vol. V pp. 98-99.

         [¶10] The amended complaint included claims against Outfront, Watkins, No Moore, the Schlosser Family, the Town of Utica, and the Utica BZA for: (1) declaratory judgment that the billboards were not allowed; (2) a request for a permanent injunction; (3) a verified petition for judicial review of the BZA; and (4) a verified action for mandate against the Utica BZA. The Appellees then filed motions to dismiss the amended complaint.

         [¶11] On April 30, 2018, the Indiana Scenic Byway Committee approved an application for S.R. 265 to become a scenic byway. A scenic byway designation would apparently prevent additional billboards from being constructed. On the same day, River Ridge filed a notice of voluntary dismissal of the amended complaint with prejudice pursuant to Indiana Trial Rule 41(A)(1)(a).

         [¶12] Outfront, Watkins, No Moore, the Schlosser Family, and the Town of Utica then filed motions for attorney fees. Outfront requested $149, 918.01 in attorney fees; the Town of Utica requested $51, 824.52; and No Moore/the Schlosser Family requested $35, 698.10, for a total of $237, 440.63 in attorney fees.[2] After additional briefing on the matter, the trial court held a hearing at which evidence was presented on the motion for attorney fees. The parties then submitted proposed orders, with the Appellees filing one joint proposed order. The trial court then entered findings of fact and conclusions of law granting Appellees' motions for attorney fees and ordered River Ridge to pay $237, 440.63 in Appellees' attorney fees. River Ridge now appeals.

         Analysis

         [¶13] The trial court here entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A). In reviewing findings made pursuant to Trial Rule 52, we first determine whether the evidence supports the findings and then whether findings support the judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). On appeal, we "shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id.; Ind. Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. K.I., 903 N.E.2d at 457. A judgment is also clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Id.

         [¶14] We note that the trial court adopted Appellees' proposed findings of fact and conclusions of law verbatim. "This practice weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court." Cook v. Whitsell-Sherman, 796 N.E.2d 271, 274 n.1 (Ind. 2003). It is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. Cty. of Lake v. Pahl, 28 N.E.3d 1092, 1100 (Ind.Ct.App. 2015), trans. denied. "Although we by no means encourage the wholesale adoption of a party's proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous." Id.

         [¶15] We have significant concerns about some of the trial court's findings. There was no weighing of the evidence demonstrated in the findings. Rather, many of the findings are merely unsupported accusations, argumentative, and inappropriate. Although the trial court has wide discretion in weighing evidence and entering findings, the ...


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