                                                                                 FILED
                                                                          Jun 13 2017, 11:18 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
      Matthew R. Shipman                                          Stephen R. Snyder
      Bloom Gates Shipman & Whiteleather, LLP                     Randall L. Morgan
      Columbia City, Indiana                                      Snyder Morgan Federoff &
                                                                  Kuchmay LLP
                                                                  Syracuse, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

      Epworth Forest Administration                               June 13, 2017
      Committee, Inc.,                                            Court of Appeals Case No.
      Appellant-Defendant,                                        43A03-1610-MI-2332
                                                                  Appeal from the Kosciusko
              v.                                                  Circuit Court
                                                                  The Honorable Michael W. Reed,
      Gerry Lee Powell and Patricia                               Judge
      Ann Powell,                                                 Trial Court Cause No.
      Appellees-Plaintiffs.                                       43C01-1602-MI-47




      Najam, Judge.


                                        Statement of the Case
[1]   Epworth Forest Administration Committee, Inc. (“EFAC”) appeals the trial

      court’s judgment, following a bench trial, for Gerry Lee Powell and Patricia



      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                     Page 1 of 13
      Ann Powell on the Powells’ complaint against EFAC and Robert Miller and

      Deborah Miller.1 This appeal arises from more than twenty-six years of

      litigation in the Kosciusko Circuit Court regarding rights of access to Webster

      Lake in Kosciusko County. In this appeal, the Millers sought to have a second

      boat lift added to their pier on Webster Lake. To accommodate that desire, the

      Millers petitioned EFAC to remove the Powells’ pier on the lake. EFAC

      agreed to do so, and the Powells filed suit and obtained injunctive relief before

      the court entered a final judgment for the Powells. EFAC now appeals that

      judgment and raises a single issue for our review, namely, whether the trial

      court erred when it did not accept EFAC’s interpretation of prior orders of the

      court. We affirm the court’s judgment for the Powells.


                                     Facts and Procedural History2
[2]   Webster Lake is a lake in the Epworth Forest subdivision in Kosciusko County.

      Since 1991, rights of access to Webster Lake by onshore and offshore property

      owners have been litigated in the Kosciusko Circuit Court. Pursuant to various

      court orders in that litigation, EFAC is now empowered3 to administer, subject

      to certain restrictions, the respective rights of access held by onshore and




      1
          Although named defendants in the trial court, the Millers do not participate in this appeal.
      2
       EFAC does not state the facts in its brief in accordance with our standard of review, contrary to Indiana
      Appellate Rule 46(A)(6)(b).
      3
        The length of time over which the rights of access to Webster Lake have been litigated in the Kosciusko
      Circuit Court implicates the rights previously held by the predecessors-in-interest of EFAC, the Powells, and
      the Millers, but for clarity of our discussion we simply refer to the present parties.



      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                           Page 2 of 13
      offshore property owners. In 1994, the court entered an order that established

      the lakeshore rights of the onshore and offshore property owners.


[3]   Pursuant to a November 2007 order of the court:

              As a means of enforcing this Court’s prior orders in this case, any
              party alleging that [EFAC] has acted or failed to act in violation
              of this Court’s [1994 judgment] shall file a separate lawsuit
              alleging that [EFAC] has acted or failed to act in violation of this
              Court’s [1994 judgment] . . . . The action or decision of [EFAC]
              will not be reversed unless such action or decision is arbitrary,
              unreasonable[,] or capricious.


      Ex., Tr. Vol. 3 at 30.4


[4]   In January of 2014, the trial court approved onshore and offshore rights of

      access to Webster Lake and, in particular, open shoreline and pier-assigned

      shoreline for each onshore and offshore owner. EFAC also sought to have the

      trial court adopt certain regulations EFAC had proposed. In its order on that

      request, the court stated in relevant part as follows:

              Although not mandated by the Court, the regulations as adopted
              and applied by [EFAC] should strive to:


              a)       Allow/provide for a five (5) foot clearance on both sides
                       [for a total of ten (10) feet] of the dividing line between


      4
        Our review of the numerous trial court documents relevant to this appeal has been hampered by the parties
      not including those documents in appendices, despite the clear guidance of Indiana Appellate Rule 50(A),
      and their citations instead to unmarked and unpaginated exhibits. Our page references to those exhibits are
      based on the .pdf pagination of the electronically filed transcript.



      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                       Page 3 of 13
                 pier sites so that a ten (10) foot buffer zone may exist
                 between all facilities and equipment utilized on the pier
                 sites; and


        b)       Burden any one on-shore owner with only one (1) off-
                 shore pier site.


Id. at 43 (brackets in original). And the court adopted the following rules

proposed by EFAC:


        Pier Assignment [is defined as a]n allotted space along the Lake
        Webster shoreline that is assigned to an owner. All piers are
        privately owned and shall not be accessed without the permission
        of the owner.


                                                ***


        2.       ALLOWABLE WIDTH


        The maximum allowable width* for a shoreline pier space
        assigned to a lakefront property owner is 24 feet. Lakefront
        owners who own at least 24 feet or more of shoreline frontage
        shall be allotted a pier assignment up to 24 feet. Lakefront
        owners owning less than 24 feet of shoreline frontage shall be
        allotted a pier assignment up to the limited frontage owned (i.e. if
        22 feet is owned the lakefront assignment shall be up to 22 feet
        wide[).] If a lakefront owner owns less than 16 feet of shoreline,
        that lakefront owner shall be allotted at least 16 feet for their pier
        assignment. The maximum allowable width for a shoreline pier
        space assigned to a non-lakefront property owner is 16 feet. Piers
        shall be placed a safe and reasonable distance apart from each
        other with a minimum distance between pier assignments of two
        feet.


Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017     Page 4 of 13
              *Width refers to space used by an assigned owner for pier sections,
              watercraft, or any other personal property that takes up space in the
              water or along the shoreline. Measurement is the total width taken from
              the far left item to the far right item (for example, pier, boat, jet ski,
              securing pole/auger, etc.).


              3.       LAKEFRONT PROPERTY OWNERS


              [L]akefront property owner[s’] shoreline pier placement[s] shall
              be considered permanent unless [a] lakefront property owner
              agrees to a change in writing that has been approved by [EFAC]
              in writing. . . .


              4.       NON-LAKEFRONT PROPERTY OWNERS


              Non-lakefront property owners’ shoreline pier locations are
              assigned by [EFAC] on a first-come, first-served basis. Once the
              shoreline locations are assigned and approved in writing by the
              [EFAC], the locations are intended to be permanent . . . .


      Id. at 47-48 (emphasis added). In April of 2014, the court further ordered as

      follows: “Onshore owners’ pier assignments will continue from year to year

      and be presumed permanent. An offshore pier assignment/location, in

      accordance with the 1994 judgment, may be changed only for [a] substantial

      change of circumstances making the prior assignment unreasonable under

      current facts and circumstances. . . .” Id. at 62.


[5]   The Powells are offshore property owners with an assigned pier on Webster

      Lake. There is no dispute that the Powells’ pier assignment and location are

      consistent with the trial court’s orders. The Millers are onshore property


      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017             Page 5 of 13
      owners who also have an assigned pier on Webster Lake pursuant to the court’s

      orders. The Millers’ lakefront property borders the Powells’ pier assignment on

      the western border of the Powells’ assignment.


[6]   Pursuant to the court’s approved shoreline assignments around Webster Lake,

      the Millers owned fifty feet of shoreline property and Pier Space 34. The

      court’s orders designate that the Millers have twenty-four feet of their shoreline

      “for Pier 34” and ten feet “of open shoreline.” Appellant’s App. Vol. II at 30;

      see also Ex., Tr. Vol. 3 at 53. The court assigned the remaining sixteen feet of

      the Millers’ shoreline to the Powells “for Pier 35A,” which the Powells owned.

      Appellant’s App. Vol. II at 30. The court’s orders do not mandate a specific

      location within those assignments for either pier’s placement. 5 See Ex., Tr. Vol.

      3 at 53.6


[7]   In 2015, the Millers sought to have a boat lift added to the eastern side of their

      pier without relocating their pier. With an existing boat lift already in place on

      the western side of the Millers’ pier, and using their pier’s location as the




      5
        In its brief on appeal, EFAC repeatedly asserts that “the trial court fixed the locations of the piers.” E.g.,
      Appellant’s Br. at 6-7. In support of that statement, EFAC cites not to a court order but to the direct
      examination testimony of Gerry Powell, who said no such thing. Tr. Vol. 2 at 11, cited in Appellant’s Br. at
      6-7.
      6
        The version of this exhibit submitted on appeal is not clear in that it has grayed-out and blacked-out text. It
      appears from the legible text that the trial court assigned to the Powells an additional four feet of open
      shoreline, but it is not clear how that four feet might have factored into the distribution of the fifty feet of
      shoreline owned by the Millers. In any event, the apparent four-foot allocation is not discussed by the parties
      on appeal, and neither do the parties challenge the trial court’s finding that the fifty feet of shoreline owned
      by the Millers is distributed between ten feet of open shoreline, twenty-four feet for the Millers’ pier, and
      sixteen feet for the Powells’ pier.



      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                             Page 6 of 13
      centerline of their pier assignment, the addition of the new boat lift would have

      left “insufficient space for the Powell[s’] boat and pier as assigned” by the court.

      Appellant’s App. Vol. II at 30. Accordingly, the Millers requested permission

      from EFAC to have the Powells’ pier removed so the Millers could install a

      second boat lift on their pier. The Powells objected, but EFAC agreed with the

      Millers and ordered the Powells to remove their pier. The Powells then filed a

      lawsuit against EFAC and the Millers and argued that EFAC’s decision was

      arbitrary, capricious, or unreasonable.


[8]   The trial court entered a preliminary injunction against EFAC. Thereafter, in

      September of 2016, the trial court entered the following findings of fact and

      conclusions thereon after a bench trial:

              13. The Court’s [January 2014] Order . . . approving the then[-
              ]existing pier assignments approved not only the then[-]existing
              pier placements (actual and based on prior usage)[] but also the
              assignment of a certain location zone for [a] pier and other
              equipment usage (based on actual prior usage) . . . .


              14. It was further the Court’s intention, and order, that the
              pier assignment . . . was . . . based on an allocation of the
              frontage of each lot and created a zone of use for these
              assignments . . . , which would not be subject to future change
              except as specifically provided by the Court’s Orders . . . .


              15. It was further the Court’s intention, and order, that each
              assignee of a pier assignment be free to fully . . . utilize their zone
              assignment, but not so that this usage would affect others,
              especially adjacent pier . . . assignments . . . .



      Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017      Page 7 of 13
        16.     Therefore, the proposed change of actual use of an area by an
        assignee cannot be a substantial change of circumstances making the
        prior assignment unreasonable under current facts and circumstances.


                                                ***


        19. If the Powell[s’] pier is left with the 16 feet
        assigned . . . [the] Miller[s] will retain the same 24[-]foot zone
        assigned to [them] . . . and [they] are free to locate whatever
        structures they desire[] within the same 24[-]foot zone[] so long
        as this does not affect the usage of the adjacent pier assignments.


                                                ***


        23. The judgment and various Orders . . . of this Court clearly
        indicate that it was the intention of this Court that . . . pier
        assignments for onshore owners were intended to be permanent,
        and offshore pier assignments were not to be changed without a
        significant change in circumstances.


        24.      The desire of [the] Miller[s] to place two boat lifts, one on each
        side of their current pier location, is not a significant change in
        circumstances.


        25. The determination made by EFAC requiring the Powells
        to remove their pier and boat lift was necessarily arbitrary and
        capricious and was, as a matter of law of the case, not in
        conformity with the prior Judgment and Orders of this
        Court . . . .


        26. The placement of the Powell[s’] pier is in conformity with
        the Judgment and Orders . . . and no significant change in




Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017              Page 8 of 13
               circumstances exists which would require the elimination or
               relocation of the original Powell pier assignment.


       Id. at 30-32 (emphases added). This appeal ensued.


                                      Discussion and Decision
[9]    EFAC appeals the trial court’s judgment for the Powells. In its judgment, the

       trial court entered findings of fact and conclusions thereon following a bench

       trial. Our standard of review in such appeals is clear:

               We . . . apply a two-tiered review, and affirm when the evidence
               supports the findings, and when the findings support the
               judgment. We shall not set aside the findings or judgment unless
               they are clearly erroneous, and we must give due regard to the
               opportunity of the trial court to judge the credibility of the
               witnesses. Findings of fact are clearly erroneous only when they
               have no factual support in the record, and a judgment is clearly
               erroneous if it applies the wrong legal standard to properly found
               facts.


       Wysocki v. Johnson, 18 N.E.3d 600, 603-04 (Ind. 2014) (citations, quotation

       marks, omissions, and alterations omitted). And insofar as this appeal requires

       this court to interpret prior orders of the trial court, we interpret those orders de

       novo and without deference to the trial court’s judgment. Deen-Bacchus v.

       Bacchus, 71 N.E.3d 882, 885 (Ind. Ct. App. 2017).


[10]   As an initial matter, we reject EFAC’s argument that our case law requires this

       court to defer to EFAC’s decision against the Powells. While the trial court’s

       orders direct that that court would not reverse a decision of EFAC unless that


       Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017    Page 9 of 13
       decision was “arbitrary, unreasonable[,] or capricious,” Ex., Tr. Vol. 3 at 30,

       that language establishes the burden of proof in the trial court, not the standard

       of appellate review.7 As such, insofar as EFAC argues that the Powells did not

       meet their burden of proof in the trial court, we review that argument under our

       usual standards of review.


[11]   We thus turn to the merits of EFAC’s argument on appeal, namely, that the

       trial court’s judgment is erroneous because the court misinterpreted its prior

       orders. In particular, EFAC asserts that, absent more specific instruction from

       the trial court, EFAC had interpreted the court’s pier assignments to require

       each pier to be placed in the center of each assignment. 8 In light of that

       interpretation, EFAC continues, it concluded that it lacked the authority to

       order the Millers to move their pier within their assignment due to the

       “permanent” nature of onshore pier assignments, and, instead, EFAC was

       required to order the Powells to remove their pier altogether. Appellant’s Br. at

       24-25.


[12]   But there is nothing ambiguous about the court’s orders in the first instance,

       and, as such, the trial court properly rejected EFAC’s interpretation of those


       7
         EFAC is not a state agency or other governmental unit, and its decision against the Powells was not made
       pursuant to the Administrative Orders and Procedures Act, Ind. Code Article 4-21.5, or other statutory
       procedures.
       8
         To be sure, EFAC also asserts that “[n]owhere in the trial court’s prior orders does it mention a ‘location
       zone’” for the pier assignments, which is plainly incorrect insofar as the pier assignments themselves are
       designated zones for the location of piers. Appellant’s Br. at 24; see Ex., Tr. Vol. 3 at 53. And, as noted
       above, EFAC also repeatedly states (contrary to its apparent argument on appeal) that the trial court “fixed
       the location of the piers,” which is also plainly incorrect. See footnote 5, supra at 6.



       Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                          Page 10 of 13
       orders. It is true that the trial court’s prior orders designated “pier assignments”

       in terms of a linear footage along the shoreline and make no mention of a

       mandatory location for a pier within a given assignment. Ex., Tr. Vol. 3 at 53.

       However, the court’s orders plainly provide a mechanism for measuring pier

       assignments. Namely, the court’s orders direct that pier assignments are to be

       measured based on an owner’s usage “from the far left . . . to the far right,” with

       any personal property within that area being demonstrative of the owner’s

       usage. Id. at 48. Indeed, the court’s directions identify a “pier” as an object

       that may exist at either end of the assignment for measurement purposes. Id.

       That is, the court’s orders expressly recognize that the location of a pier may be

       anywhere within the pier assignment. As such, the court’s unambiguous prior

       orders preclude measuring the width of a pier assignment by establishing a pier

       within that assignment as the centerline. EFAC’s interpretation disregards the

       court’s clear instructions.


[13]   EFAC’s interpretation also disregards the trial court’s clear language that the

       width of a pier assignment is inclusive of any use that owner might make of that

       assignment. Again, the court’s orders define pier assignments as the total

       shoreline available to onshore and offshore owners for their use of any “pier

       sections, watercraft, or any other personal property that takes up space in the

       water or along the shoreline.” Id. EFAC’s interpretation that the pier is the




       Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017   Page 11 of 13
       centerline and that usage is measured away from that point9 is not consistent

       with the trial court’s orders.


[14]   Further, EFAC’s reliance on the permanent nature of an onshore owner’s pier

       assignment and disregard of the permanent nature of an offshore owner’s pier

       assignment is also contrary to the court’s orders. Those orders expressly refer to

       both established onshore pier assignments and established offshore pier

       assignments—which includes both the Millers and the Powells—as

       “permanent” assignments. Id. As such, for that additional reason the trial

       court did not err when it rejected EFAC’s interpretation that pier assignments

       should be centered around pier location to accommodate the permanent nature

       of established onshore pier assignments and without considering the permanent

       nature of established offshore pier assignments. Thus, the trial court’s

       interpretation of its prior orders is based on the unambiguous language of those

       orders, and EFAC has not shown that the trial court erred when it rejected

       EFAC’s contrary interpretation.


[15]   Finally, we note that, although both established onshore pier assignments and

       established offshore pier assignments are permanent assignments under the

       court’s orders, an offshore assignment nonetheless “may be changed only for [a]

       substantial change of circumstances making the prior assignment unreasonable



       9
         Insofar as EFAC’s argument is that an onshore owner can expand beyond the maximum twenty-four feet
       by simply expanding use within an assignment, that argument is contrary to the trial court’s express
       limitations to the width of onshore owners’ pier assignments. Ex., Tr. Vol. 3 at 48.



       Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017                 Page 12 of 13
       under current facts and circumstances.” Id. at 62. The trial court found and

       concluded that the Millers’ desire to add a second boat lift to their pier was

       merely a new way to use their pier and, as such, was captured by their original

       assignment and did not constitute a substantial change of circumstances that

       made the prior assignment to the Powells unreasonable under the current facts

       and circumstances. On appeal, EFAC does not directly challenge the trial

       court’s findings or conclusions in this regard; rather, EFAC’s only argument is

       that the trial court erred when it interpreted the court’s prior orders. As

       explained above, we reject EFAC’s arguments. Nonetheless, we also conclude

       that the trial court’s findings that there has been no substantial change in

       circumstances is supported by the record and that its judgment is supported by

       the findings. As such, the court’s judgment is not clearly erroneous, and we

       affirm.


[16]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 43A03-1610-MI-2332 | June 13, 2017   Page 13 of 13
