                                                                              Feb 25 2016, 9:24 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Kim E. Ferraro                                             Mark Small
      Hoosier Environmental Council                              Indianapolis, Indiana
      Valparaiso, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gary Bowling and Mable                                     February 25, 2016
      Bowling,                                                   Court of Appeals Case No.
      Appellants-Plaintiffs,                                     70A05-1502-CT-72
                                                                 Appeal from the Rush Superior
              v.                                                 Court
                                                                 The Honorable Matthew R. Cox,
      Christopher Nicholson and                                  Special Judge
      Shelley Nicholson,                                         Trial Court Cause No.
      Appellees-Defendants.                                      70D01-1310-CT-448




      Altice, Judge.


                                                 Case Summary


[1]   Gary and Mable Bowling (the Bowlings) appeal from the trial court’s denial of

      their motion for a preliminary injunction against Christopher and Shelley

      Nicholson (the Nicholsons). The Bowlings present five issues for our review,

      which we restate as follows: Did the trial court err in denying the Bowlings’

      motion for preliminary injunction?
      Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                     Page 1 of 12
[2]   We reverse and remand.


                                         Facts & Procedural History


[3]   The Bowlings moved into their current home, which sits on 2.6 acres in rural

      St. Paul, Indiana, in 1995. The Nicholsons purchased over four acres of land

      adjacent to and south of the Bowlings’ property in 2004. The Nicholsons

      removed a trailer that had been on their property and built a house. For the

      first six years, the Nicholsons used a central heating system. In June 2010, the

      Nicholsons installed an outdoor hydronic heater, commonly referred to as an

      outdoor wood boiler (OWB),1 to heat their home. The Nicholsons claim that

      the OWB has reduced their electric heating bill by two to three hundred dollars

      per month.


[4]   The Bowlings claim that plumes of thick, acrid smoke, noxious odors, and air

      particulates from the Nicholsons’ OWB often invade their property and

      significantly interfere with their use and enjoyment thereof. The Bowlings




      1
        An OWB differs from woodstoves and other residential wood-fired combustion devices in that they are
      manufactured without emission control devices, employ lower combustion temperatures, and have higher
      fuel loading capacity. As a result, OWBs can create heavy smoke, are significantly more polluting than other
      home-heating devices, and can pose public health risks especially when they are used improperly. OWBs are
      also designed differently, employing a lower stack height that can result in more intense smoking and
      smoking conditions closer to the ground.
      Prior to the Nicholsons’ purchase and installation of their OWB, an Environmental Protection Agency
      (EPA) certification program for OWBs had been developed and implemented. In 2010, there were more
      than a dozen OWB models that had been qualified by the EPA. An OWB that is qualified by the EPA is
      ninety percent cleaner, i.e., less polluting, than models that are unqualified. The model installed by the
      Nicholsons, a Woodmaster 4400, has not been qualified by the EPA. Notwithstanding the lack of EPA
      qualification, suppliers can sell the Woodmaster 4400 so long as it was in their inventory prior to May 2011,
      the effective date of an EPA rule prohibiting the installation of unqualified OWBs.

      Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                        Page 2 of 12
      describe the conditions as unbearable at times. As a result, the Bowlings assert

      that they find it difficult to work in the yard. The Bowlings testified that they

      have had to seal their windows and keep their doors closed. The Bowlings

      submitted affidavits from friends and family who had experienced the

      conditions described by the Bowlings when they had visited the Bowlings’

      home. The Bowlings maintain that some of their friends and family refuse to

      visit them because of the air conditions in and around their home.


[5]   Mable also testified that she has asthma and described how the smoke from the

      Nicholsons’ OWB aggravates her condition such that she has recurrent episodes

      of bronchitis characterized by a cough, wheezing and shortness of breath,

      pleuritic pain, scratchy throat, fatigue, hoarseness, sinus pressure, and nasal

      congestion. Mable asserts that the smoke from the OWB has sickened her to

      the point where she has had to go the hospital for breathing treatments and has

      to take medicines to manage her symptoms. The Bowlings acknowledge that

      they are not claiming damages arising from medical conditions, but

      nevertheless assert that such evidence further demonstrates the conditions that

      they claim are affecting their use and enjoyment of their property.


[6]   Since the Nicholsons moved onto the adjacent property, and increasingly after

      their installation of the OWB, the Bowlings have contacted law enforcement

      and the fire department to complain about some of the Nicholsons’ behaviors,

      including, as relevant here, the operation of their OWB. Specifically, Mable

      contacted the Rush County police authorities approximately 197 times and also

      caused the local fire department to be dispatched nearly 60 times to the

      Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016   Page 3 of 12
      Nicholsons’ home. After installation of the OWB, the Bowlings started

      contacting the Indiana Department of Environmental Management (IDEM),

      other state and local agencies, and various government officials to complain

      about the Nicholsons’ use of their OWB. IDEM and other government

      agencies performed numerous surveillance inspections when the Nicholsons

      were operating their OWB and conducted several unannounced inspections of

      the OWB. Only one violation was ever recorded, and the Nicholsons admitted

      that it was their error to put cardboard in the OWB.


[7]   On October 29, 2013, the Bowlings filed their Verified Complaint for

      Preliminary and Permanent Injunctive Relief (the Complaint) against the

      Nicholsons. The Complaint set forth four counts: nuisance, trespass,

      negligence, and gross negligence. On November 15, 2013, the Bowlings filed

      their Motion for Preliminary Injunction seeking to enjoin the Nicholsons from

      using their OWB during the pendency of this litigation. In support of their

      motion, the Bowlings presented twenty-four exhibits, including affidavits by

      Mable Bowling, Mable’s physician, and friends and family of the Bowlings,

      along with photographs and videos relating to the Nicholsons’ operation of

      their OWB. The Bowlings also presented testimony from Alan Leston, an

      environmental consultant and expert on air quality control. 2




      2
       Leston admitted that he had not inspected the property at issue and that he had not personally observed
      operation of the Nicholsons’ OWB.

      Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                      Page 4 of 12
[8]   The Nicholsons sought and were granted several continuances. On January 8,

      2014, the Nicholsons filed their answer, a motion to dismiss, and a motion to

      strike. On the same day, the Nicholsons filed an Ind. Trial Rule 35 request for

      the Bowlings to produce their medical records from the previous fifteen years,

      claiming that the Bowlings had “place[d] their medical conditions directly at

      issue.” Appellant’s Appendix at 155. By way of the motion, the Nicholsons also

      sought to continue a hearing set in January. The Bowlings objected to the T.R.

      35 motion, stating, in relevant part:


                 3. More importantly, however, [the Nicholsons] are not entitled
                 to any of [the Bowlings’] medical records for several reasons.
                 First, and contrary to [the Nicholsons’] assertion, [the Bowlings]
                 are not seeking damages for any medical harm or personal injury
                 in this case. Specifically, this lawsuit was brought under Ind.
                 Code § 32-30-6-6, for [the Bowlings’] property-related nuisance
                 claims. Second, [the Bowlings’] preliminary injunction motion .
                 . . is not seeking damages, but, instead, equitable relief to prevent
                 the [Nicholsons] from using their OWB pending trial in this case.


      Id. at 158-59 (footnote omitted).3 A hearing on the Bowlings’ motion was

      finally held on October 14, 2014. On January 30, 2015, the trial court entered

      its order denying the Bowlings’ motion for a preliminary injunction. The

      Bowlings now appeal.


                                                Discussion & Decision




      3
          The trial court never ruled on the request for medical records.


      Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016     Page 5 of 12
[9]    The Bowlings challenge the trial court’s denial of their preliminary injunction.

       The issuance of a preliminary injunction is within the sound discretion of the

       trial court, and the scope of appellate review is limited to deciding whether

       there has been a clear abuse of discretion. Barlow v. Sipes, 744 N.E.2d 1, 5 (Ind.

       Ct. App. 2001), trans. denied. Pursuant to Ind. Trial Rule 52, “in granting or

       refusing preliminary injunctions” the trial court “shall make special findings of

       fact without request.” “Findings are clearly erroneous if they are insufficient to

       disclose a valid basis for the legal result reached in the judgment.” Fumo v. Med.

       Group of Mich. City, Inc., 590 N.E.2d 1103, 1108 (Ind. Ct. App. 1992), trans.

       denied. Findings are also clearly erroneous when the record lacks evidence or

       reasonable inferences from the evidence to support them. Buffkin v. Glacier

       Group, 997 N.E.2d 1, 9 (Ind. Ct. App. 2013). And a judgment is clearly

       erroneous if it is unsupported by the findings and the conclusions that rely on

       those findings. Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24,

       32 (Ind. Ct. App. 2008) (quotations omitted), trans. denied. The power to issue a

       preliminary injunction should be used sparingly, and such relief should not be

       granted except in rare instances in which the law and facts are clearly within the

       moving party’s favor. Buffkin, 997 N.E.2d at 9.


[10]   To obtain a preliminary injunction, the Bowlings had the burden of showing by

       a preponderance of the evidence that: (1) their remedies at law were

       inadequate, thus causing irreparable harm pending resolution of the substantive

       action; (2) they had at least a reasonable likelihood of success at trial by

       establishing a prima facie case; (3) the threatened injury to them outweighed the

       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016   Page 6 of 12
       potential harm to the Nicholsons that would result from the granting of an

       injunction; and (4) the public interest would not be disserved by the granting of

       a preliminary injunction. See Pinnacle Healthcare, LLC v. Sheets, 17 N.E.3d 947,

       953 (Ind. Ct. App. 2014). Because the Bowlings are appealing from a negative

       judgment, they must, therefore, establish that the trial court’s judgment is

       contrary to law. Id. A judgment is contrary to law only if “the evidence in the

       record, along with all reasonable inferences, is without conflict and leads

       unerringly to a conclusion opposite that reached by the trial court.” Id.

       (quotations omitted).


[11]   With regard to the first requirement for a preliminary injunction, the Bowlings

       claim the trial court improperly construed and applied the standard for a

       showing of irreparable harm. To establish irreparable harm, the Bowlings were

       required to show that the harm they suffered “cannot be compensated for

       through damages upon resolution of the underlying action.” Coates v. Heat

       Wagons, Inc., 942 N.E.2d 905, 912 (Ind. Ct. App. 2011).


[12]   Throughout their pleadings, the Bowlings consistently alleged that the

       Nicholsons’ operation of their OWB constitutes a nuisance. Indeed, in

       objecting to the discovery request for their medical records, the Bowlings

       specifically asserted that they were not seeking damages for medical harm or

       personal injury, but rather, their action was for “property-related nuisance

       claims.” Id. at 159. Nuisance is defined by Ind. Code § 32-30-6-6, which

       provides: “Whatever is (1) injurious to health; (2) indecent; (3) offensive to the

       senses; or (4) an obstruction to the free use of property so as essentially to

       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016   Page 7 of 12
       interfere with the comfortable enjoyment of life or property, is a nuisance, and

       the subject of an action.” The Bowlings presented evidence to establish that

       operation of the OWB was offensive to the senses and/or an obstruction to

       their free use of their property. The harm they allege relates in large part to the

       loss of use and enjoyment of their property.


[13]   The trial court, in concluding that the Bowlings had not established irreparable

       harm, indicated that it considered harm only as it related to a property loss in

       the form of loss of property value or physical damage to the Bowlings’

       property.4 The trial court’s findings and conclusions, however, do not address

       the elements of the Bowlings’ underlying nuisance claim. Specifically, the trial

       court did not address the Bowlings’ evidence or claims as they related to

       operation of the OWB as offensive to the senses or as an obstruction to the free

       use of their property such that its continued use interferes with the Bowlings’

       enjoyment of their property. The Bowlings’ nuisance claim was not based on a

       loss of property value or physical damage. We agree with the Bowlings that the

       trial court’s findings and conclusions fail to address the element of irreparable

       harm in light of the Bowlings’ underlying nuisance claims.




       4
         In Muehlman v. Keilman, 272 N.E.2d 591, 594 (1971), this court rejected such a narrow property loss
       standard in a case upholding a preliminary injunction to abate a nuisance arising solely from noise. The
       court noted that the nuisance statute then in effect, like the one in effect currently, does not mention actual
       damage to property as a requirement thereof. Thus, the court concluded that “no actual damage to property
       need be shown.” Id. “If dust, dirt, smoke and offensive odors essentially interfered with the comfortable
       enjoyment of the house . . . the action might be maintained, although not a penny’s value of injury was done
       to the house itself.” Id. (quoting Owen v. Phillips, 73 Ind. 284, 293 (1881)).

       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                         Page 8 of 12
[14]   Next, the Bowlings argue that the trial court failed to assess their likelihood of

       success on the merits of their nuisance claim. To obtain a preliminary

       injunction, the party seeking the injunction must have a reasonable likelihood

       of prevailing on the merits. See Pinnacle Healthcare, LLC v. Sheets, 17 N.E.3d at

       953. To demonstrate this element, the moving party is not required to show

       that he is entitled to relief as a matter of law, but only that success on the merits

       is probable. See Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108, 118

       (Ind. Ct. App. 2004). Thus, for purposes of seeking a preliminary injunction,

       the Bowlings need only have shown that the Nicholsons’ use of their OWB is

       likely to be deemed a nuisance under I.C. § 32-30-6-6.


[15]   Here, the trial court’s conclusion of law that comes closest to making a

       determination regarding the Bowlings’ likelihood of success provides:

               A review of the case law regarding Preliminary Injunctions finds
               that most of them relate to covenants not to compete, contract
               law, or breaches of trade secrets. None of the available cases
               refers to a neighbor seeking to stop another from using his/her
               property to its full advantage based upon a perceived but
               unproven irreparable harm to property.


       Appellants’ Appendix at 14. First, as noted above, the trial court did not apply the

       proper standard in considering the issue of irreparable harm in light of the

       Bowlings’ nuisance claim. Second, the trial court’s statement that “most” of

       the cases it reviewed did not concern a nuisance claim is not dispositive of




       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016   Page 9 of 12
       whether a preliminary injunction is warranted in this case.5 Appellants’ Appendix

       at 14. The trial court’s conclusion in this regard falls short of assessing the

       likelihood of success of the Bowlings’ nuisance claim.


[16]   As to the third element, we agree with the Bowlings that the trial court did not

       properly apply the “balance of harms” factor. The court concluded that the

       Bowlings “admitted they had no photographs of any alleged damages to the

       property nor any analysis or other form of documentation which would provide

       the Court with sufficient information with which to formulate an assessment of

       any property harm.” Id. However, as discussed above, the harm alleged by the

       Bowlings as part of their nuisance claim is the loss of use and enjoyment of

       their property, which is based upon an environmental condition alleged to have

       been created by the Nicholsons’ operation of their OWB. It is this harm that

       must be balanced against the harm to the Nicholsons, which is in the nature of

       higher electric heating bills. In its findings and conclusions, the trial court did

       not summarize or even acknowledge the Bowlings’ evidence in this regard. In

       fact, on the Bowlings’ side of the balancing analysis, the trial court relied upon

       its mistaken determination that the harm to be considered is actual harm to the

       property. On remand, the trial court must balance the proper harms so as to

       protect the property and rights of the parties.




       5
         Indeed, Indiana’s nuisance statute has been found to be applicable under circumstances where noxious
       odors and emissions interfered with a neighboring landowner’s comfortable use of his property. See Stickdorn
       v. Zook, 957 N.E.2d 1014 (Ind. Ct. App. 2011). There is no case law that prohibits the granting of a
       preliminary injunction to abate a nuisance.

       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                     Page 10 of 12
[17]   Finally, the Bowlings assert that the trial court applied the wrong standard with

       respect to the public interest element of a preliminary injunction. The trial

       court concluded:


               The Court is hard pressed to find how granting an injunction
               based upon the facts as presented serves the greater public. If a
               homeowner follows the law and regulations and despite constant
               contact with governing bodies no error is found, an injunction
               under those circumstances would cause a negative effect on the
               public’s right to quiet enjoyment of their own property.


       Id. at 14. Whether the public interest is disserved is a question of law for the

       court to determine from all the circumstances. Robert’s Hair Designers, Inc., v.

       Pearson, 780 N.E.2d 858, 868-69 (Ind. Ct. App. 2002).


[18]   Here, there are competing interests – the Bowlings’ right to quietly enjoy their

       own property and the Nicholsons’ right to operate their OWB on their property.

       The competing interests identified give rise to a private nuisance claim, which

       arises when it has been demonstrated that one party has used his property to the

       detriment of the use and enjoyment of another’s property. See Woodsmall v. Lost

       Creek Twp. Conservation Club, Inc., 933 N.E.2d 899, 903 (Ind. Ct. App. 2010),

       trans. denied. Contrary to the trial court’s conclusion, however, the fact that the

       Nicholsons’ operation of their OWB does not violate the law or regulations is

       not dispositive of whether a preliminary injunction would disserve the public

       interest. To hold such would bar injunctive relief in all cases of nuisance per

       accidens, i.e., where an otherwise lawful use may become a nuisance by virtue of



       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016   Page 11 of 12
       the circumstances surrounding the use.6 Id. Thus, the trial court’s conclusion

       with respect to the public interest element is clearly erroneous in that it is based

       solely on the fact that the Nicholsons’ operation of the OWB has not violated

       any laws or regulations.


[19]   In summary, we conclude that the trial court’s conclusions are either based on

       an incorrect standard or on the mistaken conclusion that the alleged harm was

       in the form of loss of property value or physical damage. The conclusions of

       law are therefore clearly erroneous and cannot support the court’s decision to

       deny the Bowlings’ motion for a preliminary injunction. We therefore reverse

       the trial court’s order and remand with instructions to reconsider the matter in

       light of the above discussion.


[20]   Judgment reversed and remanded.


       Robb, J. and Barnes, J., concur.




       6
         For example, in Muehlman, 272 N.E.2d at 598, neighboring landowners were enjoined from starting, idling,
       and revving their trucks during normal sleeping hours because of the noise and odors created thereby.
       Although not illegal, the court determined that such conduct constituted a nuisance and thereby affirmed the
       grant of a temporary injunction. Id. In another case, the legal operation of a livestock operation, i.e., a hog
       feedlot, created certain conditions in the form of a pungent odor and infestation of flies and rats that were
       found to constitute a nuisance to the neighboring landowner. Yeager & Sullivan, Inc. v. O’Neill, 324 N.E.2d
       846, 853 (Ind. Ct. app. 1975).

       Court of Appeals of Indiana | Opinion 70A05-1502-CT-72 | February 25, 2016                       Page 12 of 12
