                                                                       Dec 04 2015, 8:22 am




      ATTORNEY FOR APPELLANTS                              ATTORNEY FOR APPELLEES
      Dustin T. White                                      A. David Hutson
      White Law Practice                                   Hutson Legal
      Jeffersonville, Indiana                              Jeffersonville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Old Utica School Preservation,                            December 4, 2015
      Inc., Kenneth Morrison, Scott                             Court of Appeals Case No.
      Sandefur, and Pam Sandefur,                               10A01-1501-PL-43
      Appellants-Petitioners,                                   Appeal from the Clark Circuit
                                                                Court
              v.                                                The Honorable Glenn Hancock,
                                                                Special Judge
      Utica Township, John Durbin as                            Trial Court Cause No.
      Township Trustee, Jacob’s Well,                           10C04-1210-PL-123
      Inc., Kevin Williar, John Posey,
      Anthony Glotzback, and Barbara
      Williar,
      Appellees-Respondents.




      May, Judge.


[1]   Old Utica School Preservation, Inc.; Kenneth Morrison; Scott Sandefur; and

      Pam Sandefur (collectively, “Citizens”) appeal the denial of their Motion for

      Declaratory Judgment and Motion for Mandatory Injunction against Utica

      Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015               Page 1 of 15
      Township; John Durbin as Township Trustee; Jacob’s Well, Inc.; Kevin

      Williar; John Posey; Anthony Glotzback; and Barbara Williar (collectively,

      “Appellees”). They present three issues for our consideration, which we

      consolidate and restate as:

               1.     Whether the Jacob’s Well use of the property known as
               the Old Utica School (“School”) violates the language of the
               quitclaim deed conveying the property;


               2.    Whether the trial court erred when it found Citizens did
               not show “demonstrable injury, injury in fact and . . . a causal
               connection between the injury in fact and the actions of the
               Township and Jacobs [sic] Well.” (Br. of Appellant at 8); and


               3.    Whether the trial court erred when it determined the
               conveyance of the School to Utica Township was a fee simple
               with condition subsequent.


[2]   We affirm in part, reverse in part, and remand.


                                   Facts and Procedural History
[3]   In 2002, the Greater Clark County School Corporation (“GCCSC”) conveyed

      the School to Utica Township via quitclaim deed. The quitclaim deed stated

      GCCSC conveyed School “subject to the conditions set out in IC 20-4-5-8(b) 1

      that said property being transferred shall be used by Utica Township . . . for




      1
        Ind. Code § 20-4-5-8 was recodified in 2005 as Ind. Code § 20-23-6-9. For the remainder of the opinion, we
      will refer to the current designation except for the portion of the opinion discussing the differences between
      the two versions of the statute.

      Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015                         Page 2 of 15
      park and recreation purposes.” 2 (App. at 24.) The conveyance included

      approximately 3.5 acres of land and the school building, which housed multiple

      classrooms, a basement, a cafeteria, and a gymnasium.


[4]   Following the conveyance, the School was used as shelter and for storage

      during Ohio River floods; for community activities such as auctions, bake sales,

      and basketball games; and as a food pantry. By 2011, the building had fallen

      into disrepair. Township Trustee John Durbin testified, “Parts of the ceilings

      were falling in. There were dead animals in the building. There was human

      waste all over the restrooms. . . . there were floors rotting out in the other side

      of the building.” (Tr. at 93.) At that time, Utica Township was spending

      approximately $35,000.00 per year to maintain the School.


[5]   On June 17, 2011, Utica Township leased the School to Jacob’s Well, a non-

      profit religious organization with a mission to provide transitional housing to

      single mothers and women who receive professional assistance for drug

      addiction. The founders of Jacob’s Well, Kevin and Barbara Williar, financed

      $300,000.00 to renovate the School. The School has a locked area where the

      back classrooms once were. It serves as dormitories for the women receiving

      services from Jacob’s Well. The front classrooms are used for classes associated

      with Jacob’s Well services, and the cafeteria, gym, and some classrooms are




      2
        The original quitclaim deed stated the property “shall be used by Utica Township solely for parks and
      recreation purposes.” (App. at 24) (emphasis added). The parties stipulated the word ‘solely’ was “a
      Scrivener’s [sic] error and should be eliminated for evidentiary purposes.” (Tr. at 9.)

      Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015                         Page 3 of 15
      available for use by the public. The Williars live in an apartment they built on

      the site.


[6]   On October 25, 2012, Citizens filed a Verified Complaint for Declaratory

      Judgment and Petition for Mandatory Injunction Issued Under Trial Rule 65

      and an Indiana Trial Rule 52 Motion for Findings of Fact and Conclusions of

      Law. Citizens argued Appellees’ use of the School was “contrary to the

      restrictive covenant contained in the School’s Deed and contrary to State Law,”

      (App. at 27), and requested:


              [T]he Court declare that the restrictive covenant does, in fact, run
              with the land, is enforceable, the actions of Utica Township by
              failing to abide by the restrictive covenant in the School’s Deed
              and executing a lease with Jacobs [sic] Well, Inc. for purposes
              other than park and recreation and actions of Jacobs [sic] Well,
              Inc., specifically, using the School as a residence and
              constructing multiple temporary and/or multiple permanent
              housing units in the School, to be contrary to State Law and that
              said Lease with Jacobs [sic] Well, Inc. is void.


      (Id. at 27-28.) Citizens asked the trial court to enjoin Utica Township and

      Jacob’s Well from further violating the alleged restrictive covenant. (Id. at 28.)


[7]   The trial court granted Citizens’ T.R. 52 request for findings on October 31,

      2012. On November 1, 2012, Appellees answered Citizens’ complaint and

      moved to dismiss it, arguing Citizens did not have standing to pursue a claim

      against Appellees. On December 7, 2012, Appellees filed a motion for

      summary judgment and a memorandum, and they designated evidence in



      Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 4 of 15
      support. On January 9, 2013, Citizens responded, and a special judge was

      appointed.


[8]   After a hearing, the trial court granted Appellees’ motion for summary

      judgment, wherein the Appellees argued the Citizens did not have standing to

      bring a declaratory action. The trial court concluded “the language of said deed

      relating to specific use is a Restrictive Covenant satisfying the requirements of

      the grant statute,” (id. at 11), and Citizens did not have standing to bring a

      claim against Appellees. The trial court denied Citizens’ motion to correct

      error.


[9]   Citizens appealed, and we reversed and remanded, holding Citizens had

      standing based on the public standing doctrine. Old Utica School Preservation, Inc.

      v. Utica Twp., 7 N.E.3d 327, 333 (Ind. Ct. App. 2014), trans. denied (“Utica I”).

      On remand, the trial court denied Citizens’ Request for Declaratory Judgment

      and Mandatory Judgment, finding and concluding:

               3. That the [language of the deed from GCCSC to Utica
               Township] is a fee simple conveyance with a condition
               subsequent and The Township has used the property accordingly,
               on occasion, as conditions have allowed.


               4. That the Township’s lease of February 15, 2011 does not
               violate said terms as it allows the Township the right “to have
               access to the gym and cafeteria for community events” and there
               was testimony that the property has been used for such purposes.


               5. That the condition subsequent is not an exclusive use. The
               original conveyance contained the word “solely” which both

      Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 5 of 15
               parties have stipulated is a scrivener’s error. At no time has the
               Township government renovated the building or grounds for
               park or recreational purposes and it could be argued that a vacant
               building and unimproved property was not a park or recreational
               use. Further the property had been used for other purposes,
               although well intentioned and in the face of emergency,
               nonetheless nonpark [sic] and recreational purposes.


               6. That a mandatory injunction is an extraordinary equitable
               remedy that should be granted with caution. Campbell, 617 N.E.
               2d 580


               7. That [Citizens] carries the burden of demonstrating injury
               which is certain and irreparable if the injunction is denied.
               [Citizens] has not met such burden as there has been no denial of
               use for the stated purpose and harm, if any, would be greatly
               outweighed by the public interest of not restoring the Old School
               to its previous state of disrepair.


       (App. at 8-9.)


                                       Discussion and Decision
[10]   The trial court entered Trial Rule 52 findings and conclusions. When a trial

       court does so we review whether the evidence supports the findings of fact and

       whether the findings support the conclusions of law. Crider v. Crider, 15 N.E.3d

       1042, 1052 (Ind. Ct. App. 2014), trans. denied. We will set aside findings of fact

       only if they are clearly erroneous, which occurs if the record contains no facts to

       support a finding either directly or by inference. Id. We defer to the trial

       court’s ability to assess the credibility of witnesses and will not reweigh the

       evidence, and we must consider only the evidence most favorable to the

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 6 of 15
       judgment along with all reasonable inferences drawn in favor of the judgment.

       Id. It is not enough that the evidence might support some other conclusion; it

       must positively require the conclusion contended for by appellant before there is

       a basis for reversal. Id. A judgment also is clearly erroneous if it relies on an

       incorrect legal standard, and we do not defer to a trial court’s legal conclusions.

       Id.


                                              Park and Recreational Use

[11]   The Quitclaim Deed from GCCSC to Utica Township stated the conveyance of

       the School was “subject to the conditions set out in IC [20-23-6-9] that said

       property being transferred shall be used by Utica Township [ ] 3 for park and

       recreation purposes.” (App. at 24) (footnotes added). Citizens argue the

       School was not used for park and recreation purposes after Utica Township

       entered into the lease with Jacob’s Well because a portion of the School is

       utilized as dormitories for those receiving services from Jacob’s Well.


[12]   “Park purposes” are “establishment, equipment, and operation of parks,

       boulevards, pleasure drives, parkways, wheelways, park boulevards,

       bridlepaths, playgrounds, playfields, bathhouses, comfort stations, swimming

       pools, community centers, recreation centers, other recreational facilities, and

       recreational programs.” Ind. Code § 35-10-1-2. Ind. Code § 36-10-7.5-20(a)




       3
           As noted above, the word “solely” was in the deed but the parties stipulated it was a scrivener’s error.


       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015                             Page 7 of 15
       requires “[p]ark and recreation facilities and programs shall be made available

       to the public free of charge as far as possible.”


[13]   Appellees presented evidence the School had been used for park purposes:

               Q:       Has anybody used the gym?


               A:     Yes, we have had some little league softball teams from
               the Methodist Baptist [sic] church, they’ve come up and used that
               a couple of times for practice when it was too cold outside.
               We’ve had some, we’ve had a basketball team come and use it
               about three or four times for practices there. And then we’ve had
               a birthday party.


[14]   (Tr. at 164-65.) Citizens’ argument is an invitation for us to reweigh the

       evidence, which we cannot do. See Crider, 15 N.E.3d at 1052 (appellate court

       cannot reweigh evidence on appeal).


                                              Demonstrable Injury

[15]   The trial court concluded Citizens were not entitled to a permanent injunction

       because they had not demonstrated a “certain or irreparable” injury, finding

       “there has been no denial of use for the stated purpose and harm, if any, would

       be greatly outweighed by the public interest of not restoring the Old School to

       its previous state of disrepair.” (App. at 9.)


[16]   “A mandatory injunction is an extraordinary equitable remedy which should be

       granted with caution.” Campbell v. Spade, 617 N.E.2d 580, 583 (Ind. Ct. App.

       1993). The grant or denial of injunctive relief will not be overturned “unless it is


       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 8 of 15
       arbitrary or amounts to an abuse of discretion.” Id. In making this decision,

       the trial court must weigh whether the plaintiff “has an adequate remedy at

       law” and “whether an injunction is in the public interest.” Id. “The plaintiff

       carries the burden of demonstrating injury which [sic] is certain and irreparable

       if the injunction is denied.” Id.


[17]   Citizens argue they have done so:

               Since the lease was executed, until recently, the Citizens have
               been prevented from engaging in the aforementioned activities.
               This was one injury in fact. The fact that Kevin and Barbara
               William [sic] already use the School as a residence and that up to
               three (3) people have temporarily used the School for residential
               purposes, one person being an ex-offender, are additional injuries
               in fact. Similarly, the fact that an apartment and dorms have
               been build [sic] in the School are certain and irreparable injuries.
               Lastly, [Utica Township] has a public duty to use the School for
               park and recreation purposes. By allowing Kevin Williar and
               Barbara Williar to live in the School, and by allowing temporary
               residents to stay in the School’s dorms, [the Township Trustee] is
               violating that duty and causing injury to the Citizens who seek to
               have the court require his duty be upheld.


[18]   (Br. of Appellant at 8-9) (citations to the record omitted). There is no evidence

       in the record of any injury the Citizens have suffered. Appellees presented

       evidence the School has been open for public use, including the use of the

       Citizens, and the Citizens have declined to use it, opting instead to hold

       community events elsewhere. Regarding the temporary residents using Jacob’s

       Well services, Appellees presented evidence the residents are screened before

       they are allowed to stay at the School, and they are monitored throughout their

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 9 of 15
       time at the School. Citizens’ argument is an invitation for us to reweigh the

       evidence, which we cannot do. See Crider, 15 N.E.3d at 1052 (appellate court

       cannot reweigh evidence on appeal).


                                              Type of Conveyance

[19]   The Citizens asked for a declaratory judgment regarding the status of the

       conveyance.

               Courts of record within their respective jurisdictions have the
               power to declare rights, status, and other legal relations whether
               or not further relief is or could be claimed. No action or
               proceeding is open to objection on the ground that a declaratory
               judgment or decree is prayed for. The declaration may be either
               affirmative or negative in form and effect. The declaration has
               the force and effect of a final judgment or decree.


[20]   Ind. Code § 34-14-1-1. When considering a motion for declaratory judgment,

       the test to be applied is “whether the issuance of a declaratory judgment will

       effectively solve the problem, whether it will serve a useful purpose, and

       whether or not another remedy is more effective or efficient.” Mid-Century Ins.

       Co. v. Estate of Morris ex rel. Morris, 966 N.E.2d 681, 688 (Ind. Ct. App. 2012),

       trans. denied. The determinative factor is “whether the declaratory action will

       result in a just and more expeditious and economical determination of the

       entire controversy.” Id.


[21]   As part of its summary judgment for Appellees, the trial court determined the

       School was conveyed with a restrictive covenant requiring the School, “subject

       to the conditions set out by IC [20-23-6-9] . . . shall be used by Utica Township

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 10 of 15
       [ ] for park and recreation purposes.” (App. at 24.) We reversed because the

       trial court erred when it determined the Citizens did not have standing. Old

       Utica, 7 N.E.3d at 333. On remand, the trial court decided the conveyance of

       the School was not a restrictive covenant but instead a fee simple with

       condition subsequent. The Citizens argue, without citation to legal authority,

       the trial court erred in making this determination because “[t]here is simply no

       conditional language in the deed.” (Br. of Appellant at 8.)


[22]   There is no Indiana precedent addressing the distinction between a restrictive

       covenant and a fee simple with condition subsequent. The law pertaining to

       restrictive covenants is well settled:

               A restrictive covenant is an agreement between a grantor and a
               grantee in which the latter agrees to refrain from using his
               property in a particular manner. One 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. Because covenants are a form of express contract, we
               apply the same rules of construction. Construction of the terms
               of a written contract is a pure question of law for the court and
               we conduct a de novo review of the trial court’s conclusions in
               that regard.


       Johnson v. Dawson, 856 N.E.2d 769, 772 (Ind. Ct. App. 2006) (citations

       omitted).


               Covenants are favored by the law, and a court will construe a
               recital as a covenant, rather than a condition, whenever such a
               construction is possible. If the deed does not express an intention
               that the property conveyed is subject to a condition subsequent

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 11 of 15
               and forfeiture, we will generally hold that the language creates a
               covenant. Lastly, just as it is axiomatic in basic contract law, the
               intent of the parties will govern the resolution of whether or not a
               covenant is created. Therefore, a covenant will be found where
               (1) the parties intended to create a species of express contract, (2)
               the terms impose a duty on one party to do or not do a particular
               act, and (3) the language used does not disclose a clear intent to
               burden the estate with a condition subsequent.


       Homemakers Finance Service, Inc. v. Ellsworth, 177 Ind. App. 640, 642-43, 380

       N.E.2d 1285, 1287 (1978). A mandatory injunction, while an extreme remedy,

       is appropriate when a party violates a restrictive covenant. Depeyster v. Town of

       Santa Claus, 79 N.E.2d 183, 190-91 (Ind. Ct. App. 2000).


[23]   In contrast, a conveyance determined to be fee simple subject to condition

       subsequent is “created by any limitation which, in an otherwise effective

       conveyance of land, (a) creates an estate in fee simple; and (b) provides that

       upon the occurrence of a stated event the conveyor or his successor in interest

       shall have the power to terminate the estate so created.” Restatement of the

       Law – Property § 45.


               “When a transferor, having an estate in fee simple absolute
               transfers an estate in fee simple subject to a condition subsequent,
               the transferee is regarded as having received the entire estate of
               the transferor, who, by virtue of his reserved power of
               termination has the power to regain his former estate, if and
               when there is a breach of the condition subsequent.”


       Id. at Comment a.



       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 12 of 15
[24]   The quitclaim deed conveys the School to Utica Township “subject to the

       conditions set out in IC 20-23-6-9 that said property being transferred shall be

       used by Utica Township . . . for park and recreation purposes.” (App. at 24.)

       Ind. Code § 20-4-5-8(b), in effect at the time of the quitclaim deed, states,

       regarding the transfer of school property no longer in use by the school

       corporation:


               This subsection applies whenever the consolidated school board
               of a consolidated school corporation decides that property
               acquired under subsection (a) from a township is no longer
               needed for school purposes. The school board shall offer the
               property as a gift for park and recreation purposes to the
               township that owned the property before the school was
               consolidated. If the township board accepts the offer, the school
               board shall give the township a quitclaim deed to the property.
               This deed must state that the township is required to use the
               property for park and recreation purposes. If the township board
               refuses the offer, the school board may sell the property in the
               manner provided in subsection (c).


       While the statute provides for action should the township reject the school

       board’s offer, there is no provision addressing the status of the property should

       the township cease using the property for park and recreation purposes. The

       current version of the statute, Ind. Code § 20-23-6-9, does not include the

       requirement the land be used for park and recreation purposes. As we noted in

       Utica I:


               [T]he statutory language provides no guidance as to what
               townships are to do with the school property in situations such as
               Utica Township faced here in which it is no longer feasible to

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 13 of 15
               maintain the school property for park and recreation purposes.
               In adopting Indiana Code section 20-23-6-9, the legislature did
               not provide what should happen to school property when, or if, it
               is no longer used for park and recreation purposes in the future.
               It is unclear whether the property must be used for park and
               recreation purposes in perpetuity or if it reverts back to the school
               corporation when it is no longer used for those purposes or if the
               township can lease the property 4 for uses that may or may not be
               exclusively for park and recreation purposes.


       7 N.E.3d at 333 (footnote added).


[25]   Although construction of a written contract is a question of law, “where the

       intent of the parties cannot be determined within the four corners of the

       document, a factual determination is necessary to give effect to the parties’

       reasonable expectations.” Campbell, 617 N.E.2d at 584. Here, it is not clear

       whether GCCSC intended the transfer to be a restrictive covenant or a fee

       simple estate subject to condition subsequent. However, the deed does not

       indicate the School would revert to GCCSC if it is not used for park and

       recreation purposes, nor does the statute under which the School was conveyed

       indicate such. Absent such statutory language, and in light of the deed’s

       language that the property “shall be used by Utica Township . . . for park and

       recreation purposes,” (App. at 24), we conclude the conveyance was a

       restrictive covenant.




       4
         Regarding to whom the township can lease the School, Ind. Code § 20-23-6-9 now provides, effective July
       1, 2015, “The township may sell or lease the property to an Indiana nonprofit corporation that is exempt
       from federal income taxation under Section 501 of the Internal Revenue Code.”

       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015                     Page 14 of 15
                                                  Conclusion
[26]   The trial court correctly determined the School was used for park and

       recreation purposes as required by the deed because portions of the building

       were available to the general public and used for recreational purposes. The

       trial court also correctly determined the Citizens did not demonstrate an

       irreparable injury that would make a mandatory injunction appropriate.

       However, the trial court erred when it determined the School was conveyed in

       fee simple subject to condition subsequent. We therefore affirm in part, reverse

       in part, and remand for correction of the declaratory judgment to indicate the

       property was conveyed with a restrictive covenant.


[27]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 10A01-1501-PL-43 | December 4, 2015   Page 15 of 15
