United States District Court, S.D. Indiana, Indianapolis Division
TONCA WATTERS, et al. Plaintiffs,
HOMEOWNERS ASSOCIATION AT THE PRESERVE AT BRIDGEWATER, et al. Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
Matthew P. Brookman United States Magistrate Judge.
Tonca Watters and Terence Watters (“the Watters”)
have brought this suit against Defendants, members, former
members, residents, or developers of the Homeowners
Association Board (“the HOA Board”) for the
Preserves at Bridgewater, a neighborhood in Kokomo, Indiana.
(Docket No. 1). Terence and Tonca Watters bring claims under
the Fair Housing Act, specifically 42 U.S.C. §3617, for
interference, retaliation and race discrimination
(“Count I”), and failure to accommodate
(“Count II”). (Docket No. 1 at ECF pp. 8-10).
They also bring a claim under 42 U.S.C. § 1982 for
interfering with the Watters's property rights
(“Count III”). (Id. at ECF pp. 10-11).
All Defendants, the Homeowners Association at the Preserve at
Bridgewater (“the HOA”), Edward Mamaril, Kathryn
Mamaril, Randy Lindgren, Robert Dinn, Cherilyn Shook, David
Barber, Chris Monroe, and Mile Ullery, move for summary
judgment as to all claims. (Docket No. 54). This matter is
fully briefed. (Docket No. 53; Docket No. 54; Docket No. 57;
Docket No. 58). For the reasons that follow, the Court GRANTS
Defendants' Motion for Summary Judgment. (Docket No. 53).
following material facts are presented in the light most
favorable to the Plaintiffs as the non-moving
and Tonca Watters reside in the Preserve at Bridgewater
(“the Preserve”), a neighborhood in Kokomo,
Indiana. (Docket No. 54-1 at ECF p. 8; Docket No. 54-2 at ECF
pp. 3-4). They moved into their home in December 2015 and
continue to reside there throughout this litigation. (Docket
No. 54-2 at ECF p. 11). They are the only African-American
family in the subdivision. (Docket No. 54-1 at ECF p. 29).
Ed Mamaril is a resident in the Preserve. He has been
President of the HOA Board since 2015 and has been on the
HOA's Architectural Control Committee (“the
ACC”) since before that time. (Docket No. 54-3 at ECF
p. 3). Defendant Kate Mamaril is Edward Mamaril's wife
and a former HOA Board President, but has had no role with
the HOA Board since 2015. (Docket No. 54-4 at ECF p. 3).
Mike Ullery and Chris Monroe are not HOA Board members, but
are on the ACC. (Docket No. 54-5 at ECF p. 3); (Docket No.
54-5 at ECF p. 5).
remaining defendants have been or are members of the HOA
Board. Defendant Randy Lindgren is the HOA Board
Vice-President. (Docket No. 54-3 at ECF p. 16). Robert Dinn
has been an HOA Board Secretary, but is no longer on the
Board. (Docket No. 54-6 at ECF p. 3). Cherilyn Shook is the
HOA Board Treasurer. (Docket No. 54-3 at ECF p. 16).
Defendant David Barber is the HOA Board member at large.
(Id.). In their own testimony, Terence and Tonca
Watters state they have no claims or evidence to support any
claims against Randy Lindgren, Robert Dinn, Cherilyn Shook,
David Barber, or Chris Monroe, in their individual
capacities. (Docket No. 54-1 at ECF p. 22-23; Docket No. 54-2
at ECF p. 12).
Watters raise a broad range of allegations in this suit,
which can be arranged by category.
Watters's Requests for Copies of Covenants and other HOA
and Tonca Watters requested a copy of the Dedication and
Restrictive Covenants and Homeowners Association for the
Preserve at Bridgewater (“the Covenants”), but
Kate Mamaril, then HOA Board President, refused to give them
a copy. (Docket No. 54-2 at ECF p. 18). Thereafter, on
October 28, 2013, Terence Watters, by counsel, requested a
copy of the current by-laws of the HOA, a copy of the by-laws
in place as of April 1, 2013, and a copy of the transcript
and/or minutes of the last meeting of the HOA from Ed
Mamaril. (Docket No. 57-1). Neither Ed Mamaril nor any member
of the HOA Board complied with the request. Terence and Tonca
Watters ultimately obtained a copy of the covenants by
purchasing a copy from the Recorder's office. (Docket No.
1 at ECF p. 3).
and Tonca Watters believe that they were discriminated
against by Ed Mamaril and the HOA's failure to answer
their requests. The HOA Board does not give new residents
copies of the covenants; instead, new buyers are to obtain
copies from their realtors or the people from whom they are
buying the house. (Docket No. 54-4 at ECF p. 3). Another
neighbor told Terence Watters that another unknown
individual, perhaps a board member (maybe Kate) or just
someone else from the community, had given that neighbor a
free copy of the covenants. (Docket No. 54-1 at ECF p. 8).
Like Terence and Tonca Watters, the Mamarils also had to
obtain a copy of the covenants when they moved in by
purchasing a copy from the Recorder's office. (Docket No.
54-4 at ECF p. 3).
and Tonca Watters requested and were denied agendas for HOA
meetings. Terence Watters does not know the date of the
meeting for which he requested an agenda that was not
provided. (Docket No. 54-1 at ECF p. 13). On at least one
occasion, Terence Watters was provided an HOA agenda when he
requested one. (Docket No. 54-1 at ECF pp. 13, 61). Terence
and Tonca Watters did not attend one HOA meeting while there
was an order of civil protection in place against Tonca
Watters and in favor of Kate Mamaril. Tonca could not say
whether she would have attended the HOA meeting if the
protective order had not been in place and she has not
attended any meetings after the protective order was no
longer in place. (Docket No. 54-2 at ECF p. 13). None of the
Defendants have told Terence and Tonca Watters that they
cannot attend an HOA meeting. (Docket No. 54-2 at ECF p. 9).
at the Preserve
Covenants state that “[n]o pets shall be permitted to
run loose.” (Docket No. 54-1 at ECF p. 40). Terence and
Tonca Watters have had issues with the Mamarils allowing
their cats to roam free and enter the Watters's yard and
cause damage to the Watters's property. (Docket No. 54-1
at ECF p. 6). During the Watters's home construction, the
construction crew was regularly spending 20-30 minutes per
day trying to get rid of the cats. (Docket No. 54-2 at ECF p.
3). When the Mamarils initially moved into the Preserves,
prior to the Watters's arrival, they allowed their cats
to go free in the neighborhood without complaint. (Docket No.
54-3 at ECF pp. 17-18). Kate Mamaril also feeds the stray or
feral cats that roam the neighborhood and has done so prior
to Terence and Tonca Watters moving into the neighborhood
(Docket No. 54-2 at ECF p. 4). Mike Ullery and his wife allow
their dog to urinate and defecate on the Watters's
property. (Docket No. 54-2 at ECF p. 3).
and Tonca Watters have repeatedly requested that the
covenants be enforced. (Docket No. 54-2). Terence and Tonca
Watters believe that the covenants regarding pets have not
been enforced because of their race. (Docket No. 54-1 at ECF
p. 6). The HOA Board has not taken actions to actively
enforce the covenants regarding pets because it
“determined that [ ] we have no way to reinforce that,
other than for the City of Kokomo to intervene. The ordinance
of the City of Kokomo supercedes [sic] that one sentence in
the restrictive covenants.” (Docket No. 54-3 at ECF p.
6; Docket No. 54-6 at ECF p. 5). Terence and Tonca Watters
had no evidence that the HOA Board has ever taken an action
to enforce the covenant. (Docket No. 54-1 at ECF p. 5-6, 18).
Ullery's dog has urinated or defecated on other
properties in the neighborhood (Docket No. 54-2 at ECF p. 3)
and Mike Ullery has also walked his dog on other people's
property in the neighborhood. (Docket No. 54-2 at ECF p. 10).
Robert Dinn (Caucasian) has also had problems with dogs and
cats urinating and defecating in his yard, eating his plants,
getting on his pool cover, and getting on his furniture.
(Docket No. 54-6 at ECF p. 4).
and Tonca Watters have called the Humane Society to complain
about pets in the neighborhood not being restrained and these
complaints have resulted in fines to others in the
neighborhood, including the Mamarils. (Docket No. 54-1 at ECF
p. 17; Docket No. 54-3 at ECF p. 5).
Terence and Tonca Watters Request a Fence
Covenants, which were executed in 2004, provide the following
with respect to fences:
6. . . . No. fence or wall shall be erected, placed or
altered on any lot unless approved in writing by the
Architectural Control Committee and the appropriate local
government entity. . .
. . .
10. Pools, Fences and Miscellaneous Structures . . .
II. Fences. No. fences, except those for pool safety and
decorative landscaping purposes approved by the Architectural
Control Committee, are allowed. . . .
34. Each owner of a lot within The Preserve at Bridgewater
shall be responsible for the construction of any fence of
brick, stone or wood, that said owner desires to erect on
said lot and shall do so only with written approval by the
Architectural Control Committee.
(Docket No. 54-1 at ECF pp. 37-47).
4, 2016, Terence and Tonca Watters requested permission from
the ACC to install a six-foot tall, vinyl privacy fence that
was to enclose the Watters's pool and a portion of their
yard. (Docket No. 54-1 at ECF pp. 8-10). On May 20, 2016,
the ACC advised Terence and Tonca Watters, via e-mail, that
their request had been denied. (Docket No. 54-1 at ECF p. 11;
Docket No. 57-9 at ECF p. 3). The ACC advised Terence and
Tonca Watters that their “request cannot be acted upon
until more information is made known to the committee.”
(Docket No. 57-9 at ECF p. 3). The ACC further advised
Terence and Tonca Watters (specifically, Terence) to:
Please direct your attention to the Dedication and
Restrictive Covenants for the Preserve at Bridgewater,
Paragraph No. 10, sub-paragraph “B, ” titled
“Fences”, which reads: “No fences, except
those for pool safety and decorative landscaping purposes
approved by the Architectural Control Committee, are
The only style fencing that would be considered for approval
would generically be described as “black wrought iron
fencing”, although the fence material can be made from
materials other than iron. Fences of this type are considered
“safety” or “security” fences, not
privacy fences, and are acceptable because they allow for a
minimum of sight line interruption from lot to lot. Landscape
vegetation, however, may be planted on or around fencing to
further enhance privacy. Under no circumstances would the
Architectural Control Committee approve “privacy
style” fencing such as you have presented.
If you wish to submit another request for the construction of
a fence which conforms to the above restrictions, please
include with your request the reason for the fence, the
style, height and material of the fence and a detailed site
plan showing the ...