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Watters v. Homeowners Association at Preserve at Bridgewater

United States District Court, S.D. Indiana, Indianapolis Division

November 19, 2019

TONCA WATTERS, et al. Plaintiffs,
v.
HOMEOWNERS ASSOCIATION AT THE PRESERVE AT BRIDGEWATER, et al. Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Matthew P. Brookman United States Magistrate Judge.

         Plaintiffs 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).

         I. BACKGROUND

         The following material facts are presented in the light most favorable to the Plaintiffs as the non-moving party.[1]

         Terence 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).

         Defendant 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).

         Defendants 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).

         The 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).

         The Watters raise a broad range of allegations in this suit, which can be arranged by category.

         A. The Watters's Requests for Copies of Covenants and other HOA Documents

         Terence 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).

         Terence 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).

         Terence 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).

         B. Pets at the Preserve

         The 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).

         Terence 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).

         The 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).

         Terence 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).

         C. Terence and Tonca Watters Request a Fence

         The 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).

         On May 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).[2] 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 allowed.”
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 ...

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