      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                            FILED
      regarded as precedent or cited before any                                        Mar 13 2020, 10:23 am

      court except for the purpose of establishing                                          CLERK
                                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                                              Court of Appeals
                                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Michael Ghosh                                            Ryan C. Munden
      Carmel, Indiana                                          Lafayette, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Saurabh Bagchi and Somali                                March 13, 2020
      Chaterji,                                                Court of Appeals Case No.
      Appellants-Defendants,                                   19A-PL-2070
                                                               Appeal from the Tippecanoe
              v.                                               Circuit Court
                                                               The Honorable Sean M. Persin,
      Amberleigh Village                                       Judge
      Homeowners Association, Inc.,                            Trial Court Cause No.
      Appellee-Plaintiff                                       79C01-1801-PL-18




      Altice, Judge.


                                             Case Summary
[1]   Saurabh Bagchi and Somali Chaterji (collectively, Property Owners) appeal the

      trial court’s judgment in favor of the Amberleigh Village Homeowners

      Association, Inc. (the HOA), ordering Property Owners to modify the fence
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020                     Page 1 of 13
      they constructed around their front and back yards to comply with restrictive

      covenants of the subdivision in which they live. On appeal, Property Owners

      present two issues for our review, which we restate as:


              1. Did the trial court err when it determined that the HOA
              rejected the Property Owners’ proposed plan for installation of a
              fence around their front and back yards?


              2. Did the trial court err in concluding that the HOA, which
              waited over three years to provide the Property Owners with
              notice of the non-compliance of their fence with the restrictive
              covenants, did not acquiesce in the existence of the non-
              complying fence?


[2]   We affirm.


                                   Facts & Procedural History
[3]   Property Owners own one parcel in the Amberleigh Village subdivision in West

      Lafayette, Indiana. All parcels of land within Amberleigh Village are governed

      by the Amended Declaration of Covenants, Conditions and Restrictions of

      Amberleigh Village (the Covenants). The Covenants provide, in relevant part,

      as follows:


              Section 6.2 Architectural Control. No building, outbuilding,
              mailbox, fence, satellite dish, wall or other structure, except
              original construction of Dwelling Units by or on behalf of the
              Declarant, shall be commenced, erected or maintained upon the
              Property, nor shall any exterior addition to or change or
              alteration therein, other than by the Declarant, be made until the
              plans and specifications showing the nature, kind, shape,
              height, materials, color and location of the same shall have
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 2 of 13
        been submitted to and approved in writing as to harmony of
        external design and location in relation to surrounding structures
        and topography by the Declarant until the end of the
        Development Period, the Board of Directors may appoint three
        (3) or more representatives to an Architectural Committee. Any
        change in the appearance or color of any part of the exterior of a
        residence shall be deemed a change thereto and shall require the
        approval therefore as above provided. In the event that written
        approval is not received as required hereunder within thirty
        (30) days after complete plans and specifications have been
        submitted, approval will not be required and this Section will
        be deemed to be fully complied with.


        Section 6.3 Fences. All fences will be similar in design to that
        attached as Exhibit B, except privacy fences, walls, or screening
        constructed directly adjacent to the dwellings [sic] rear patio, in
        which case they shall be no greater than 6 feet in height. The
        Architectural Committee shall review such request pursuant to
        the standards and procedures set forth in Section 6.2. The Owner
        shall maintain all fences in top quality condition, including
        replacement of damaged or rotten fence posts or panels. The
        [HOA] may enforce this provision by requiring either appropriate
        maintenance by the Owner or removal of the fence by the
        Owner. All courtyard homes must use a white vinyl decorative
        fence (approved by the Architectural Committee) constructed
        directly adjacent to the dwelling’s rear patio.


Exhbits at 17-18 (emphases added). Exhibit B to the Covenants provided the

following depiction:




Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 3 of 13
[4]   In 2014, Property Owners contacted Steve Abston, then the president of the

      HOA, and informally inquired about installation of a fence around their

      property. Abston explained the specifications for installation of fences and

      advised Property Owners of the procedure for obtaining approval by the HOA.

      Abston also provided them with direct links to the Covenants and a request

      form for architectural approval.


[5]   On or about June 2, 2014, Property Owners submitted their complete plans and

      specifications to the HOA outlining their intent to install an eight-foot fence



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 4 of 13
      around the front and back of their property. Property Owners desired a higher

      fence for safety and security purposes.


[6]   Abston was president and sole member of the HOA from 2014 through the

      summer of 2017, and during his tenure he operated “as a one man show” as

      there were no other board members or an architectural review committee.

      Transcript Vol. 2 at 32. He thus had sole decision-making authority for the HOA

      to approve architectural plans submitted for review.


[7]   On June 23, 2014, Abston sent an email to Property Owners acknowledging

      receipt of their submission and informing them that the Covenants did not

      permit an eight-foot fence. He also requested additional time to investigate the

      matter further. On July 2, 2014, the Property Owners requested an update.

      Abston responded on July 7, 2014, explaining that he had reached out to two

      individuals who confirmed that an eight-foot fence was not permitted and that

      he was waiting to hear back from a third individual. Property Owners agreed to

      wait a little longer for an answer. On July 24, 2014, Property Owners followed

      up with Abston. In this communication, Property Owners stated that “[a] 5ft

      next to the road is ridiculous” and that “[m]ost fences in other neighborhoods

      are taller.” Exhibits at 55. Abston responded later that day, informing Property

      Owners that their proposed fence did not comply with the Covenants. He

      stated:


              Sorry for the delayed response again. I have asked around as
              many knowing people as possible, and there is nothing in our
              architecture regulations that would allow the 8-ft fencing. The

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 5 of 13
               only “standard” that we have has been untouched since the HOA
               was created in 2006. Right now, the HOA consists of me. So, I
               am the architecture committee, as well as all other committees. . .
               . I would say the best route, if you would still like to try and go
               for something above 6 feet,[ 1] would be to try and get attendance
               to a meeting.


                                                          ***


               I wish I had better news for you, right now, but this is where
               we’re at. Please let me know if you would like to do anything
               moving forward.


      Exhibits at 55. According to Abston, his email to Property Owners was his

      “nice way” of saying that their fence proposal was denied, unless or until the

      plans were approved at an HOA meeting. Transcript Vol. 2 at 17. Property

      Owners and Abston exchanged a few more emails that evening regarding a

      possible HOA meeting in August with such being the final exchange regarding

      installation of a fence on Property Owners’ lot.


[8]   In August 2014, Property Owners hired a contractor to construct a wooden

      fence according to their original submission to the HOA except with a fence

      height of six feet rather than eight feet. The fence also was not “scalloped” on

      the top as required by the Covenants. Appellants’ Appendix at 58. Property

      Owners stipulate that they did not receive approval in writing prior to erecting



      1
       The only allowance in the Covenants for a six-foot fence was for a privacy fence, wall, or screen “directly
      adjacent to the dwellings [sic] rear patio.” Exhibits at 17. Further, for “courtyard homes” in the subdivision,
      which includes Property Owners’ home, fences must be constructed of a white, vinyl decorative fence.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020                     Page 6 of 13
the fence. The contractor worked for approximately two weeks to construct the

six-foot fence around the front and back yards of the Property Owners’ lot. The

fence is pictured below.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 7 of 13
      There was no action taken by Abston on behalf of the HOA during construction

      of the fence or throughout his tenure as president of the HOA, nor were there

      any documented complaints or complaints made to Abston by other residents

      in the neighborhood. Abston testified that he did not know that Property

      Owners installed the fence. Abston’s tenure as president of the HOA ended

      during the summer of 2017, when a new president was named.


[9]   On January 26, 2018, the HOA filed a complaint against Property Owners,

      asserting that Property Owners violated the Covenants by installing a fence (1)

      without the HOA’s written approval and (2) which was not in compliance with

      the Covenants. The relief sought by the HOA was an order from the court

      requiring Property Owners to remove their fence. Property Owners filed their

      answer and affirmative defenses on March 26, 2018. The trial court conducted

      a bench trial on January 29, 2019. Before the bench trial commenced, the

      parties filed a Joint Stipulation of Facts. On June 7, 2019, the trial court

      entered judgment in favor of the HOA and against the Property Owners based

      upon its determination that the HOA had rejected the Property Owners’ fence

      proposal. The court directed Property Owners to submit a plan to modify their

      fence such that it would be acceptable to the HOA. The court further ordered

      that if an agreement as to an acceptable fence could not be reached, the

      Property Owners were required to remove the fence no later than June 7, 2020.

      Property Owners filed a motion to correct error, which the trial court denied.

      Property Owners now appeal. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 8 of 13
                                       Discussion & Decision
[10]   The trial court issued findings of fact and conclusions of law pursuant to Ind.

       Trial Rule 52. Under T.R. 52(A), the clearly erroneous standard applies to

       appellate review of facts determined in a bench trial with due regard given to

       the opportunity of the trial court to assess witness credibility. Trinity Homes,

       LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). Findings of fact are clearly

       erroneous when the record lacks any reasonable inference from the evidence to

       support them, and the trial court’s judgment is clearly erroneous if it is

       unsupported by the findings and conclusions which rely upon those findings.

       CSL Cmty. Ass'n, Inc. v. Meador, 973 N.E.2d 597, 600 (Ind. Ct. App. 2012), trans.

       denied. In establishing whether the findings or judgment are clearly erroneous,

       we consider only the evidence favorable to the judgment and all reasonable

       inferences to be drawn therefrom. Id. We cannot reweigh the evidence or

       judge the credibility of any witness and must affirm the trial court’s decision if

       the record contains any supporting evidence or inferences. Id. While we defer

       substantially to findings of fact, we do not do so for conclusions of law. Id. We

       evaluate conclusions of law de novo and owe no deference to a trial court’s

       determination of such questions. Id.


                                        1. Rejection of Fence Proposal

[11]   Property Owners argue that the evidence does not support the trial court’s

       finding that the HOA rejected their fence proposal. Specifically, they argue that

       because the HOA did not, in accordance with Section 6.2 of the Covenants,



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 9 of 13
       issue a written approval within thirty days after they submitted their plan, their

       plan was deemed approved.


[12]   A restrictive covenant is an express contract between the grantor and the

       grantee that restrains the grantee’s use of his land. Villas West II of Willowridge

       Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008). As this

       court has before noted, “[o]ne purpose of restrictive covenants is to maintain or

       enhance the value of land ‘by controlling the nature and use of lands subject to

       a covenant’s provisions.’” Grandview Lot Owners Ass’n, Inc. v. Harmon, 754

       N.E.2d 554, 557 (Ind. Ct. App. 2001). Although the law does not favor

       restrictive covenants, the contractual nature of these restrictions has led courts

       to enforce them in equity as long as the restrictions are unambiguous and do

       not violate public policy. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct.

       App. 1992).


[13]   Per the parties’ stipulation of facts, the court noted that Property Owners

       formally submitted complete plans and specifications to Abston for approval.

       Although they were provided with the specifications for fences as set out in the

       Covenants, Property Owners submitted a proposal for an eight-foot fence, with

       a straight, not scalloped top edge, around both their front and back yards. The

       proposed fence did not comply with the Covenants in any respect.


[14]   On June 23, 2014, about three weeks after Property Owners submitted their

       plans, Abston responded that he could not find “any allowance in the

       regulations” for an eight-foot fence. Exhibits at 57. Abston asked for more time


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 10 of 13
       to investigate the matter and determine whether it would be possible to

       accommodate their request for an eight-foot fence. Property Owners agreed to

       give Abston more time. After Abston spoke with at least three other people, he

       informed Property Owners that their fence proposal did not meet the

       Covenants.


[15]   This evidence demonstrates that within the allotted thirty-day period for a

       response to their proposal, Abston notified Property Owners that an eight-foot

       fence was not permitted under the Covenants. Thus, rather than issuing a

       written approval, Abston issued a written denial of Property Owners’ fence

       proposal. Property Owners granted Abston additional time to find a way

       around the restrictive covenant that prohibited their proposed fence.

       Ultimately, after talking with others in the neighborhood, Abston told Property

       Owners that there was no way around the covenant and confirmed what he

       originally communicated to them that an eight-foot fence was not allowed. 2

       Based on the record, we conclude that the trial court did not err in finding that

       Property Owners proposed fence plan “was not accepted by the HOA.”

       Appellants’ Appendix at 13.




       2
         To the extent Property Owners argue that the HOA did not reject their proposed placement of the fence or
       its design because they were only informed that the fence could not be eight feet in height, we disagree.
       There is nothing in the Covenants that required Abston to identify every aspect of the fence that was not in
       compliance therewith. Moreover, the Covenants clearly set out the specifications for fences as to placement
       and design and the Property Owners’ proposed fence obviously did not comply with those specifications.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020                  Page 11 of 13
[16]   We also note that the fence ultimately constructed on Property Owners’ lot was

       not the fence described in the plans that they submitted for approval. While

       Property Owners claimed that they had discussions with Abston about going

       ahead with the original plans except with a height of six feet, Abston did not

       remember any such conversations. To credit Property Owners’ claim, we

       would have to judge the credibility of the witnesses, which we will not do. See

       Meador, 973 N.E.2d at 600. In any event, it remains that the plans and

       specifications for the fence that was erected on Property Owners’ lot were never

       formally submitted for the HOA’s approval.


                                                  2. Acquiescence

[17]   Property Owners argue that the trial court erred in not finding laches, waiver, or

       acquiescence by the HOA given that the HOA waited three years to confront

       them about their fence and nearly four years to file suit. Property Owners assert

       that the fact that Abston never noticed the fence following its installation

       “seemed rather suspect.” Appellants’ Brief at 12. Indeed, during the bench trial,

       the trial court questioned Abston about his claims that he did not know about

       the fence and that, although he lived in the neighborhood, he had not seen it in

       the three years since it was installed. Nevertheless, the trial court,

       acknowledging that it was “a close call,” ultimately concluded that the HOA

       did not acquiesce in Property Owners’ construction of the non-compliant fence.

       Appellants’ Appendix at 13. To address Property Owners’ argument would

       require that we reweigh the evidence, a task that we will not undertake upon

       appeal. See Meador, 973 N.E.2d at 600.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 12 of 13
[18]   Moreover, we note that Section 10.2 of the Covenants provides, in pertinent

       part:


               No delay or failure by any person to enforce any of the
               restrictions or to invoke any available remedy with respect to a
               violation or violations thereof shall under any circumstances be
               deemed or held to be a waiver by that person of the right to do so
               thereafter, or an estoppel of that person to assert any right
               available to him upon the occurrence, recurrence or continuation
               of any violation or violations of the restrictions.


       Exhibits at 31. Nonwaiver clauses such as this are generally enforced in

       Indiana. See, e.g., Johnson v. Dawson, 856 N.E.2d 769, 774 (Ind. Ct. App. 2006).

       Hence, pursuant to Section 10.2, the HOA may enforce the Covenants against

       Property Owners despite that it has been more than four years since they

       erected the fence that does not comply with the Covenants. Property Owners

       are barred from raising the equitable defenses of laches, waiver, and

       acquiescence. See id. (holding that nonwaiver provision permitted enforcement

       of restrictive covenant despite prior violations by other landowners).


       Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020   Page 13 of 13
