MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Nov 20 2018, 8:54 am

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


ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
John J. Schwarz, II                                       PUTNAM COUNTY
Schwarz Law Office, PC                                    COMMISSIONERS
Hudson, Indiana                                           Trudy L. Selvia
                                                          Greencastle, Indiana
                                                          ATTORNEYS FOR APPELLEE
                                                          INTERVENOR
                                                          Hayleigh J. Neumann
                                                          Robert J. Nice
                                                          The Nice Law Firm, LLP
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William E. Morrison and                                   November 20, 2018
Sonya Morrison,                                           Court of Appeals Case No.
Appellants-Respondents,                                   18A-PL-462
                                                          Appeal from the Putnam Superior
        v.                                                Court
Putnam County Commissioners,                              The Honorable Raymond M.
                                                          Kirtley, Senior Judge
Appellees-Petitioners,
and                                                       Trial Court Cause No.
                                                          67D01-1402-PL-3
Donald Richards,
Appellee-Intervenor




Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018             Page 1 of 3
      Baker, Judge.


[1]   William and Sonya Morrison have filed a petition for rehearing on this Court’s

      original decision in this matter. We grant it for the limited purpose of

      addressing their second argument, which relates to whether the trial court

      erroneously determined that they did not establish a prior non-conforming use

      of the property. We initially found that the Morrisons waived this issue

      because they neglected to raise it below. On rehearing, they point out that at

      two points in the transcript, their attorney used the word “grandfathered,”

      which they maintain is sufficient to preserve their right to make this argument.

      Tr. Vol. II p. 116, 208-10. We question whether two isolated instances of the

      use of this word, which occurred in the context of responding to objections

      made by opposing counsel, suffice to preserve this argument. But we will give

      them the benefit of the doubt and assume that they have not waived it.


[2]   They argue that William’s testimony that “[t]he majority of the items out there

      predate the ’92 zoning laws” is enough to sustain their burden of showing a

      prior non-conforming use. Id. at 103. The trial court had the benefit of in-

      person observation of this bench trial. It was for the trial court, rather than this

      Court, to assess the credibility of the witnesses before it. We will not second-

      guess the trial court’s implicit determination that William’s testimony on this

      issue was not credible. Aside from this brief sentence, there is no other

      evidence in the record supporting the Morrisons’ assertion that the complained-

      of items on their property predated the relevant ordinances. Therefore, we

      decline to reverse for this reason.


      Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018   Page 2 of 3
[3]   In all other respects, we deny the petition for rehearing, and our original

      decision affirming the trial court’s order remains.


      May, J., and Robb, J., concur.




      Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018   Page 3 of 3
