MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     Dec 05 2018, 9:20 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 APPELLANT                                   ATTORNEY FOR APPELLEE
Karen A. Wyle                                            Michael L. Carmin
Bloomington, Indiana                                     Carmin Parker, P.C.
                                                         Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Centennial Park, LLC,                                    December 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PL-764
        v.                                               Appeal from the Monroe Circuit
                                                         Court
Highland Park Estates, LLC,                              The Honorable Frank M. Nardi,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         53C01-1708-PL-1703



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018                    Page 1 of 13
[1]   Centennial Park, LLC (Centennial Park), appeals the trial court’s order granting

      the request of Highland Park Estates, LLC (Highland Park), for a permanent

      injunction. Centennial Park argues that the trial court erred by finding that its

      use of a lot in the Highland Park subdivision violated multiple restrictive

      covenants and that the entry of an injunction was erroneous. Finding no error,

      we affirm.


                                                    Facts
[2]   In the late 1970s, Robert Crider filed a plat with the Monroe County Plan

      Commission for Phase 1 of Highland Park, a residential subdivision. The plat

      includes two relevant restrictions. First, Note 1 states that “[n]o parcels shall be

      dedicated as parks, schools, playgrounds, or other community purposes within

      section 1.” Appealed Order p. 2. Second, Paragraph G states that nothing shall

      be done on any lot “which may be or become an annoyance or nuisance to the

      neighborhood.” Id. The final plat was recorded in 1977 and showed that the

      subdivision runs roughly north and south along Centennial Drive, which

      connects to State Road 46 on the south and ends in a cul de sac on Lot 15 and

      next to Lot 16 on the north.


[3]   On December 21, 2016, Centennial Park acquired thirty acres of real estate

      directly north of Highland Park from Gil Mordoh. Centennial Park has only

      one point of ingress and egress, which is a roadway through the Woodgate

      subdivision, located directly to the west. Mordoh had attempted to prove that

      there was an easement from the cul de sac to the planned Centennial Park


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 2 of 13
      subdivision so that an access road could be built there, but a trial court found

      that no such easement existed. Mordoh then attempted to purchase an

      easement from Crider, but Crider declined. When Centennial Park acquired

      the real estate, it was aware of this history.


[4]   The original developer of Highland Park planned to develop a parcel of real

      estate located directly east of Phase I. Highland Park is now in the process of

      developing Phase II. When Phase II is complete, it will have multiple

      roadways connecting to Centennial Park. Highland Park offered an easement

      to Centennial Park so that Centennial Park could build an access road in one of

      these locations sooner than Highland Park was prepared to do so.


[5]   Rather than waiting for Highland Park to build the Phase II access roadways or

      accepting the easement to build a roadway itself, Centennial Park purchased

      Lot 15 in Highland Park—the lot that contains the cul de sac. Centennial Park

      then asked the Town of Ellettsville to annex Lot 15, and on May 22, 2017, the

      town did so. On June 6, 2017, Centennial Park granted Ellettsville a fifty-foot-

      wide easement and right of way over the western side of Lot 15, creating a

      connection between the cul de sac at the north end of Centennial Drive and the

      Centennial Park subdivision.


[6]   Centennial Park installed a construction road across Lot 15, using it to access

      Centennial Park from the cul de sac. It ultimately intends to build a permanent

      roadway connecting Centennial Park and Centennial Drive. This process has

      caused damage and nuisance to the owner of Lot 16. Her mailbox has been


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 3 of 13
      knocked down three times, the construction traffic has blocked access to her

      driveway, and the construction traffic has torn up the cul de sac and spread

      mud over the roadway. The owner of Lot 16 testified that one of the reasons

      she purchased Lot 16 was precisely because it was located on a cul de sac,

      which is a safe area for her children to play and ride their bikes.


[7]   On August 3, 2017, Highland Park filed a complaint against Centennial Park,

      seeking an injunction to prevent Centennial Park from using Lot 15 as a public

      right of way or construction road. The trial court held an evidentiary hearing

      on December 7, 2017, and ruled in favor of Highland Park on February 28,

      2018. In pertinent part, the trial court found and concluded as follows:


              11.     [Centennial Park’s] actions have negatively impacted the
                      area around the cul-de-sac . . . .


              12.     If [Centennial Park] is allowed to install a permanent
                      roadway from [its] development to the cul-de-sac, the
                      traffic from [Centennial Park’s] development as well as
                      other subdivisions connected to Centennial Park,
                      consisting of approximately two hundred residential lots,
                      will be funneled through the cul-de-sac to connect with
                      Centennial Drive and eventually State Road 46. . . .
                      [Centennial Park’s] actions will transform the original cul-
                      de-sac into a major direct thoroughfare, thus dramatically
                      altering the nature of the roadway and the neighborhood.


                                                      ***


              Conclusions of Law



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 4 of 13
                                                      ***


              9.      [Centennial Park’s] construction of an access road across
                      Lot 15 to Centennial Park, [its] grant of an ingress egress
                      easement to the Town of Ellettsville, and [its] intention to
                      construct a reverse “S” curve in the roadway violate the
                      restrictions contained in the plat because these acts
                      dedicate a portion of Lot 15 to a community purpose.


              10.     These same acts . . . also violate Covenant G insofar as
                      they constitute an annoyance or nuisance to the
                      neighborhood. . . .


      Appealed Order p. 4-6. The trial court enjoined Centennial Park from

      dedicating Lot 15 or any part thereof for a community purpose, including as a

      public right-of-way or thoroughfare connecting Highland Park and Centennial

      Park. It also ordered Centennial Park to cease using the construction road and

      restore Lot 15 to a use that conforms with the restrictive covenants in the

      Highland Park plat. Centennial Park now appeals.


                                   Discussion and Decision
[8]   Centennial Park argues that the trial court erred by finding that its current and

      planned future uses of Lot 15 violate two restrictive covenants that apply to Lot

      15. It also argues that an injunction is unwarranted.


                                     I. Standard of Review
[9]   Highland Park requested special findings and conclusions pursuant to Indiana

      Trial Rule 52(A). Therefore, in reviewing the judgment, we must determine

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 5 of 13
       whether the evidence supports the findings and whether the findings support the

       conclusion and judgment. E.g., Old Utica Sch. Preservation, Inc. v. Utica Twp., 46

       N.E.3d 1252, 1256 (Ind. Ct. App. 2015). We view the evidence in the light

       most favorable to the judgment. Id. at 1257. We will reverse only if the

       judgment is clearly erroneous, meaning that it is unsupported by the findings of

       fact and conclusions on the findings. Mueller v. Karns, 873 N.E.2d 652, 657

       (Ind. Ct. App. 2007).


[10]   The interpretation of a restrictive covenant is an issue of law to which we apply

       a de novo standard of review. Drenter v. Duitz, 883 N.E.2d 1194, 1199 (Ind. Ct.

       App. 2008).


[11]   The grant or denial of an injunction is within the trial court’s discretion and we

       will reverse only if the decision is arbitrary or against the logic and effect of the

       facts and circumstances before the trial court. Ins. Co. of N. Am. v. Home Loan

       Corp., 862 N.E.2d 1230, 1233 (Ind. Ct. App. 2007).


                                   II. Restrictive Covenants
[12]   A restrictive covenant is an express contract between grantor and grantee that

       restrains the grantee’s use of the land. Villas W. II of Willowridge Homeowners

       Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008). These covenants

       “control many aspects of land, including what may be built on the land (fence

       or above ground pool), how the land may be used (private or commercial), and

       alienability of the land.” Id. Restrictive covenants are used to maintain or

       enhance the value of land by reciprocal undertakings that restrain or regulate

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 6 of 13
       groups of properties; they are common in housing subdivisions. Id. at 1278-79.

       A restrictive covenant in a plat is a covenant running with the land that creates

       a property right in each grantee and subsequent grantee of a lot in the plat

       subject to the restriction. Pulos v. James, 261 Ind. 279, 283, 302 N.E.2d 768, 771

       (Ind. 1973).


[13]   We strictly construe restrictive covenants and resolve all doubts in favor of the

       free use of property and against restrictions. Drenter, 883 N.E.2d at 1199.

       When the language in a restrictive covenant is ambiguous, we endeavor to give

       effect to the actual intent of the parties at the time the covenant was made, as

       determined from the whole instrument construed in connection with the

       circumstances surrounding its execution. Id. We consider ambiguous and

       unambiguous language together and apply the most reasonable interpretation.

       Id.


[14]   First, we must determine whether Centennial Park’s current and planned future

       uses of Lot 15 violate any restrictive covenants. As noted above, there are two

       relevant restrictive covenants in the final plat to consider:


             • Note 1 states that “[n]o parcels shall be dedicated as parks, schools,
               playgrounds, or other community purposes within section 1.” Appealed
               Order p. 2.
             • Paragraph G states that nothing shall be done on any lot “which may be
               or become an annoyance or nuisance to the neighborhood.” Id.

       Centennial Park argues that Note 1 should not be considered as a restrictive

       covenant because it was placed separately from the block of text containing


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 7 of 13
       covenants and restrictions. This elevates form over substance. Whether or not

       the Note was labeled as a “covenant” or “restriction” is not determinative of its

       character. It is apparent that the nature of Note 1 is restrictive regarding the

       future use of the subdivision property. Consequently, we find that both Note 1

       and Paragraph G are restrictive covenants.


[15]   With respect to Note 1, Centennial Park contends that its use of Lot 15 does not

       constitute a community purpose. Specifically, it argues that its grant of an

       easement to Ellettsville does not constitute the use of a “parcel,” because

       “parcel” means the entire lot but the easement only amounts to a portion of Lot

       15. We do not find this argument persuasive. Centennial Park’s grant of an

       easement to Ellettsville is part and parcel, so to speak, of its use of Lot 15 as a

       whole. Under Centennial Park’s argument, if a homeowner used only a portion

       of her lot for a park, school, or playground, it would not violate Note 1 because

       it did not use the whole lot for that purpose. Such an interpretation would

       render Note 1 meaningless, and we decline to interpret it in such a fashion.


[16]   As to whether the grant of an easement to Ellettsville for the purpose of

       constructing a public thoroughfare constitutes a community purpose,

       Centennial Park argues that a road is unlike parks, schools, or playgrounds. It

       does not explain why or how such a distinction can be made, nor can we

       discern one. Construction of a public roadway constitutes a “community

       purpose,” under a common understanding of those terms, given that its purpose

       is transportation by the general public—i.e., the community. Therefore, we



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 8 of 13
       find that the grant of an easement to Ellettsville of a portion of Lot 15 violates

       the restrictive covenant found in Note 1.


[17]   With respect to Paragraph G, Centennial Park argues that its grant of an

       easement to Ellettsville, its plan to construct a road connecting Centennial Park

       and Highland Park on Centennial Drive, and its use of a portion of Lot 15 as a

       construction road do not constitute an “annoyance or nuisance” to the

       neighborhood. The plain and ordinary meaning of “annoyance” is “the act of

       annoying someone or of being annoyed,” Merriam-Webster,

       https://www.merriam-webster.com/dictionary/annoyance, and the plain and

       ordinary meaning of “annoying” is “causing vexation or irritation,” id.,

       https://www.merriam-webster.com/dictionary/annoying. The plain and

       ordinary meaning of “nuisance” is “harm, injury; one that is annoying,

       unpleasant, or obnoxious[.]” Id., https://www.merriam-

       webster.com/dictionary/nuisance.1


[18]   The record contains the following relevant evidence regarding Centennial

       Park’s current and planned future uses of Lot 15:




       1
         We disagree with Centennial Park’s the-sky-is-falling concern that applying the plain and ordinary
       definition of these terms would put “every lot owner at perpetual risk of conflict and litigation at the whim of
       every other and thus significantly diminishing every owner’s property rights.” Appellant’s Br. p. 26. As in all
       contracts cases, the sensible and fair approach is to apply the plain and ordinary meanings to unambiguous
       terms that are not otherwise defined in the document. E.g., Care Group Heart Hosp., LLC v. Sawyer, 93 N.E.3d
       745, 752 (Ind. 2018).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018                    Page 9 of 13
           • The final Highland Park plat depicted a cul de sac on Lot 15. Other
             property owners, including the owner of Lot 16, purchased their lots in
             reliance on the cul de sac as a closed end street.
           • Installing a road cutting through Lot 15 will increase traffic flow, as well
             as increase the risk of higher speeds.
           • Specifically, the proposed road will connect as many as 200 lots to
             Centennial Drive and would generate 780 to 2,000 extra vehicle trips per
             day on a road that was designed to be a cul de sac.
           • The construction road on Lot 15 has caused property damage to Lot 16,
             including knocking down the owner’s mailbox three times. It has also
             blocked a driveway, created mud and debris on the roadway, and caused
             the cul de sac to be torn up and repaired multiple times. Previously, the
             cul de sac was a safe place for children to play and ride their bikes, but
             that is no longer the case, nor would it be the case if the permanent road
             is constructed.

       This evidence readily supports the trial court’s conclusion that Centennial

       Park’s actions, including the current construction road and the future

       permanent roadway, constituted an annoyance or nuisance to the

       neighborhood. Centennial Park directs our attention to other evidence in the

       record suggesting that traffic will not be a problem, but this is a request that we

       reweigh the evidence in the record, which we may not do; we must consider

       only the evidence most favorable to the judgment.


[19]   Centennial Park also argues that Highland Park’s plan to construct a road in a

       different part of the neighborhood belies its claim that a road on Lot 15

       constitutes an annoyance or nuisance. We disagree, as the final plat depicted

       Lot 15 with a cul de sac. Other planned areas of construction do not contain a

       cul de sac. Moreover, the construction of the other roadways has always been a

       part of the overall planned design of Highland Park. It is undisputed that there

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 10 of 13
       is no easement contained on Lot 15 for a road, whereas another part of the

       neighborhood does contain such an easement. Under these circumstances, the

       current and planned future use of Lot 15 is an annoyance or nuisance even

       though other areas of the neighborhood may be put to such a use.


[20]   In sum, we find that the trial court did not err by concluding that Centennial

       Park’s current and future planned uses of Lot 15 violated two restrictive

       covenants contained within the final plat for Highland Park.


                                       III. Injunctive Relief
[21]   Having found that these uses of Lot 15 violate the restrictive covenants, we

       must determine whether the trial court properly found that injunctive relief is

       warranted. When considering whether to grant permanent injunctive relief, we

       must examine four factors: (1) whether the plaintiff’s remedies at law are

       adequate; (2) whether the plaintiff has succeeded on the merits; (3) whether the

       threatened injury to the plaintiff outweighs the threat of harm if the injunction

       is granted; and (4) whether the public interest would be disserved by granting

       the injunctive relief. Ferrell v. Dunescape Beach Club Condos. Phase I, Inc., 751

       N.E.2d 702, 712 (Ind. Ct. App. 2001). The plaintiff’s remedies at law are

       inadequate where certain and irreparable harm would be caused if the

       injunction is denied. Id. at 713. A permanent injunction must be narrowly

       tailored so that its scope is not more extensive than is reasonably necessary to

       protect the interest of the party in whose favor it is granted. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 11 of 13
[22]   First, regarding Highland Park’s remedies at law, we agree with Highland Park

       that the creation of a public roadway through the cul de sac “would be a

       continuing and ongoing nuisance or annoyance in perpetuity” and that “[t]here

       is no reasonable measure of damages to be determined for [the owners of lots in

       Highland Park, including the Lot 16 owner,] if Centennial Park is allowed to

       alter the use from the residential lot to a major thoroughfare road carrying two

       thousand (2,000) vehicles per day.” Appellee’s Br. p. 16. In other words,

       certain and irreparable harm would result to Highland Park if the injunction is

       denied, meaning that its remedies at law are inadequate.


[23]   Second, we have already found that Highland Park succeeded on the merits of

       its claim that Centennial Park’s current and future planned uses of Lot 15

       violate two restrictive covenants. Third, the threatened injury to Highland Park

       is substantial, whereas the threat of harm to Centennial Park if the injunction is

       granted is minimal. As noted above, when Centennial Park purchased Lot 15,

       it did so knowing that a trial court had already found that no easement on that

       lot existed. Moreover, Highland Park has always planned to construct

       roadways in other locations connecting Centennial Park to Highland Park, and

       even offered an easement to Centennial Park so that it could begin construction

       of such a roadway sooner than Highland Park planned to do so. Therefore, this

       factor weighs in favor of Highland Park.


[24]   Finally, the public interest is not disserved by granting this injunction.

       Homeowners in Highland Park purchased their lots in reliance on the final plat,

       which depicted a cul de sac on Lot 15. To permit the construction of a

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 12 of 13
       thoroughfare in that location in violation of multiple restrictive covenants

       would cause great uncertainty for property owners.


[25]   Therefore, we find that the trial court did not err by granting Highland Park’s

       request for an injunction preventing Centennial Park from dedicating Lot 15 or

       any part thereof for a community purpose, including as a public right-of-way or

       thoroughfare connecting Highland Park to Centennial Park. It also did not err

       by ordering Centennial Park to cease using the construction road and restore

       Lot 15 to a use that conforms with the restrictive covenants in the Highland

       Park plat.


[26]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-764 | December 5, 2018   Page 13 of 13
