MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Oct 29 2019, 8:49 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
Stephen R. Donham
Thrasher Buschmann & Voelkel, P.C.
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Earl J. Fizer, Andrew Heater,                            October 29, 2019
and Jeffrey Kirby, each in his                           Court of Appeals Case No.
capacity as Board Member of                              19A-PL-977
Jefferson Knolls Homeowners                              Appeal from the St. Joseph
Association, an unincorporated                           Superior Court
association,                                             The Honorable Margot F. Reagan,
Appellants-Plaintiffs                                    Judge
                                                         Trial Court Cause No.
        v.                                               71D04-1801-PL-42

Deana Pierson (f/k/a Deana
Hakes) and Timothy Pierson,
Appellees-Defendants



Crone, Judge




Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019                     Page 1 of 8
                                                  Case Summary
[1]   Earl J. Fizer, Andrew Heater, and Jeffrey Kirby, each in his capacity as a board

      member of the Jefferson Knolls Homeowners Association (collectively “the

      Neighbors”), 1 filed a complaint for injunctive relief against Deana and Timothy

      Pierson (“the Piersons”) seeking removal of an aboveground pool on the

      Piersons’ property that allegedly violated certain neighborhood restrictive

      covenants. The Piersons removed the pool from their property long before the

      matter proceeded to final hearing on the issue of a permanent injunction.

      Nevertheless, the parties continued to litigate, but eventually settled their

      injunctive dispute during the final hearing, and the trial court entered an order

      memorializing their agreement. Both parties reserved the right to seek

      attorney’s fees, which requests were subsequently denied by the trial court. The

      Neighbors now appeal the denial of their requested fees. We affirm.


                                     Facts and Procedural History
[2]   At all relevant times herein, the Piersons and the Neighbors were homeowners

      in the Jefferson Knolls subdivision in St. Joseph County. During the summer

      of 2017, the Piersons installed an aboveground pool on their property. On

      December 20, 2017, counsel for the Neighbors sent a letter to the Piersons



      1
        We note that although the notice of appeal lists only Earl J. Fizer as the single appellant, the brief filed by
      his counsel repeatedly refers to “the Neighbors” as the appellants and, throughout the brief, counsel appears
      to seek a collective remedy of recovering attorney’s fees he incurred representing all three original plaintiffs.
      Accordingly, we will follow that lead and refer to all three original plaintiffs in the collective, and we will
      treat them all as parties to this appeal. Moreover, pursuant to Indiana Appellate Rule 17(A), a party of
      record in the trial court shall be a party on appeal. Thus, all three plaintiffs remain listed in the case caption.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019                         Page 2 of 8
      informing them that installation of the aboveground pool was in violation of

      certain neighborhood restrictive covenants and requested that the pool be

      removed within thirty days. The Piersons did not remove the aboveground

      pool from the property. Therefore, on January 31, 2018, the Neighbors filed a

      complaint seeking injunctive relief and attorney’s fees against the Piersons.

      Specifically, the Neighbors sought an order compelling “removal of the Pool

      and the restoration of [the Pierson’s lot] to its condition prior to the Pool’s

      installation[.]” Appellants’ App. Vol. 2 at 17.


[3]   The Piersons filed their answer and affirmative defenses, including challenges to

      the validity and enforceability of the restrictive covenants. The Neighbors

      thereafter filed a motion for a preliminary injunction. Following a hearing held

      on June 8, 2018, the trial court denied the Neighbors’ motion for preliminary

      injunction. In its findings, the court determined that the Neighbors had failed

      to show that the Piersons’ aboveground pool would cause irreparable harm to

      the Neighbors if it remained as it is during the pendency of the litigation, and

      further that the Neighbors had “an adequate remedy at law for breach of

      contract possibly entitling them to attorney fees and costs, and thus, are not

      entitled to a preliminary injunction.” Id. at 192.


[4]   On August 28, 2018, the Neighbors filed a praecipe for final hearing on the

      remaining issues of: (1) their request for a permanent injunction; and (2) their

      request for an award of attorney’s fees and costs. The court set a final hearing

      for November 19, 2018. During the hearing, it became clear from the evidence

      that the Piersons had removed the aboveground pool several months prior and

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019   Page 3 of 8
      had subsequently moved out of, but not yet sold, their house in Jefferson

      Knolls. 2 The trial court then asked the Neighbors’ counsel, “Isn’t the issue of a

      … permanent injunction moot now?” Tr. Vol. 3 at 153. The Neighbors’

      counsel then stated:


                 If he’s[ 3] willing to stipulate, your Honor, that he’s not going to
                 reinstall – I mean that’s what we want. We want him to stipulate
                 that he will not reinstall the same pool or install another above-
                 ground swimming pool and restore his lot to its [prior condition].
                 That’s all we’re looking for on that issue.


      Id. at 154-55. The Piersons’ counsel agreed to the stipulation. The court then

      entered an order instructing the parties to submit post-hearing briefs on the sole

      remaining issue of both parties’ requests for their respective attorney’s fees.


[5]   On March 4, 2019, the trial court entered an order memoralizing the parties’

      settlement agreement which provided that the parties had agreed that the

      Piersons would refrain from reinstalling their aboveground pool, or installing a

      different aboveground pool, within the Jefferson Knolls subdivision.

      Appellants’ App. Vol. 3 at 31. Thereafter, the trial court entered a separate

      order denying both parties’ requests for attorney’s fees. Specifically, the trial

      court determined that the American Rule, which requires that parties pay their



      2
        According to post-hearing briefing submitted by the Piersons, during a pretrial conference held
      approximately two months prior to the final hearing, their counsel informed the Neighbors’ counsel that the
      pool had been removed. Appellants’ App. Vol. 3 at 16. Nevertheless, and inexplicably, the parties continued
      to litigate this matter.
      3
          Because Timothy Pierson testified at trial, counsel referred to him in the singular.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019                 Page 4 of 8
      own attorney’s fees, see R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453,

      458 (Ind. 2012), applied here. This appeal ensued.


                                     Discussion and Decision
[6]   We begin by noting that the Piersons have not filed an appellees’ brief. When

      an appellee fails to submit a brief, we do not undertake the burden of

      developing arguments for the appellee, and we apply a less stringent standard of

      review. M.R. v. B.C., 120 N.E.3d 220, 223 (Ind. Ct. App. 2019). Thus, we may

      reverse if the appellant establishes prima facie error, which is error at first sight,

      on first appearance, or on the face of it. Id. This rule relieves us of the burden of

      controverting arguments advanced in favor of reversal where that burden

      properly rests with the appellee. Id. In any event, we are still obligated to

      correctly apply the law to the facts in the record in order to determine whether

      reversal is required. Id.


[7]   The trial court here entered some findings and conclusions in support of its

      order denying attorney’s fees. It does not appear from the record that either

      party requested such findings. When, as here, the trial court enters specific

      findings sua sponte, we apply a two-tiered standard: whether the evidence

      supports the findings, and whether the findings support the judgment. Tr. No.

      6011, Lake Cty. Trust Co. v. Heil’s Haven Condos. Homeowners Ass’n, 967 N.E.2d 6,

      14 (Ind. Ct. App. 2012), trans. denied. Findings and conclusions will be set aside

      only if they are clearly erroneous, that is, when the record contains no facts or

      inferences to support them. Id. A judgment is clearly erroneous when our


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019   Page 5 of 8
      review of the record leaves us with a firm conviction that a mistake has been

      made. Id. As an appellate court, we defer substantially to findings of fact but

      not to conclusions of law. Id.


[8]   The Neighbors argue that the trial court clearly erred in denying their request

      for attorney’s fees. “When reviewing an award or denial of attorney fees, we

      note that the trial court is empowered to exercise its sound discretion, and any

      successful challenge must demonstrate an abuse thereof.” Delgado v. Boyles, 922

      N.E.2d 1267, 1270 (Ind. Ct. App. 2010), trans. denied. “An abuse of discretion

      occurs when the trial court’s decision is against the logic and effect of the facts

      and circumstances before it.” Id.


[9]   Indiana has long followed the American Rule, which provides that parties to

      litigation generally pay their own attorney’s fees. R.L. Turner Corp., 963 N.E.2d

      at 458. However, it is well settled that the parties may certainly agree by

      contract to do otherwise. Reuille v. E.E. Brandenburger Constr., Inc., 888 N.E.2d

      770, 771 (Ind. 2008). Here, the Neighbors assert that they are entitled to

      recover attorney’s fees based upon certain language contained in an alleged

      contract between the parties, namely the Jefferson Knolls restrictive covenants.

      As a general matter, where “parties have executed a contractual provision

      agreeing to pay attorney fees, such agreement is enforceable according to its

      terms unless the contract is contrary to law or public policy.” Id. However, in

      this case, due to the parties’ settlement of their permanent injunction dispute,

      neither the applicability nor the enforceability of the restrictive covenants

      (which include the provisions regarding attorney’s fees upon which the

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019   Page 6 of 8
       Neighbors rely) was ever determined on the merits. The parties’ settlement, as

       subsequently memorialized by the court in an agreed order, merely provided

       that the Piersons agreed to refrain from reinstalling their aboveground pool, or

       installing a different above-ground pool, on their property.


[10]   Contrary to the Neighbors’ assertions, by no means did the Piersons concede or

       agree that the restrictive covenants were valid or enforceable, or that they ever

       violated them. Nor have the Piersons ever conceded that the Neighbors can

       recover attorney’s fees. 4 Indeed, in post-hearing briefing, the Piersons

       continued to vehemently deny the applicability and enforceability of the

       restrictive covenants as to them and their property, and hence the Neighbors’

       ability to seek fees based thereon. In other words, due to the parties’ settlement,

       there has been no determination on the merits, by agreement, judgment, or

       otherwise, that the restrictive covenants are applicable or enforceable under the

       circumstances presented. Accordingly, the restrictive covenants cannot serve as

       a contractual basis for an award of attorney’s fees, and we conclude that the

       trial court did not abuse its discretion in determining that the American Rule




       4
        The Neighbors rely on the Piersons’ statements at the preliminary injunction stage that because the
       Neighbors were pursuing a breach of contract/permanent injunction against the Piersons, this “possibly”
       entitled them to attorney’s fees and costs if a breach/permanent injunction was determined on the merits.
       Appellants’ App. Vol. 2 at 185; Tr. Vol. 2 at 119-210. As we have just explained, no such merits
       determination was ever made.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019                   Page 7 of 8
       applies here. 5 Therefore, the Neighbors have not established prima facie error

       in the trial court’s denial of their request for attorney’s fees. As our review of

       the record does not leave us with a firm conviction that a mistake has been

       made, we affirm the court’s order.


[11]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       5
         Although only the Neighbors appeal, the Piersons also sought recovery of attorney’s fees. The Piersons
       sought recovery of attorney’s fees pursuant to Indiana Code Section 34-52-1-1(b), which provides that a court
       may award fees if the court finds that either party litigated or continued to litigate in bad faith or on a
       frivolous, unreasonable, or groundless claim. The Neighbors sought $22,743.71 in attorney’s fees, and the
       Piersons sought $13,105 in attorney’s fees. The trial court applied the American Rule and denied both
       requests.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-977 | October 29, 2019                   Page 8 of 8
