                                                                        FILED
                                                                    Jul 21 2020, 8:30 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Karen A. Wyle                                          Michael L. Carmin
Bloomington, Indiana                                   Daniel M. Cyr
                                                       CARMINPARKER, PC
                                                       Bloomington, Indiana



                                             IN THE

     COURT OF APPEALS OF INDIANA

Centennial Park, LLC,                                       July 21, 2020
Appellant/Defendant,                                        Court of Appeals Case No.
                                                            20A-PL-467
        v.                                                  Appeal from the Monroe
                                                            Circuit Court
Highland Park Estates, LLC,                                 The Hon. Frank M. Nardi,
Appellee/Plaintiff.                                         Special Judge
                                                            Trial Court Cause No.
                                                            53C01-1708-PL-1703



Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020                            Page 1 of 14
                                            Case Summary
[1]   In December of 2016, Centennial Park, LLC, acquired land in Monroe County

      north of the Highland Park subdivision with the intention of developing it into

      the Centennial Park subdivision. Although the Centennial Park subdivision has

      roadway access to the east, access to State Road 46 through the Highland Park

      subdivision was deemed to be more desirable. To that end, Centennial Park

      acquired a lot located on a cul de sac on the north border of the Highland Park

      subdivision (“Lot 15”), successfully requested the Town of Ellettsville to annex

      it, granted Ellettsville a roadway easement through it, and installed a

      construction road on it.

[2]   As it happens, the plat to the Highland Park subdivision contained a restrictive

      covenant that prevented an owner from doing anything on any lot which may

      be or become an annoyance or nuisance to the neighborhood (“Covenant G”).

      Highland Park Estates, LLC (“Highland Park”), the developer of the Highland

      Park subdivision, relying in part on Covenant G, filed suit, seeking to enjoin

      Centennial Park from using Lot 15 as public right-of-way or construction road.

      In February of 2018, the trial court issued the requested injunction in favor of

      Highland Park. Meanwhile, in November of 2017, Centennial Park petitioned

      the Ellettsville Plan Commission to, inter alia, vacate Covenant G, which the

      Plan Commission did. Highland Park and a resident who lived adjacent to Lot

      15 sought judicial review of the Plan Commission’s vacation of Covenant G but

      were ultimately unsuccessful in overturning it.




      Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020          Page 2 of 14
[3]   In October of 2019, Centennial Park moved for relief from the trial court’s

      injunction, citing the vacation of Covenant G, which motion the trial court

      denied in February of 2020. Centennial Park contends that the trial court

      abused its discretion in denying its motion for relief from judgment, arguing the

      vacation of Covenant G leaves the trial court with no valid basis on which it

      may enjoin the use of the easement over Lot 15 for a construction and access

      road. Because we disagree, we affirm.


                             Facts and Procedural History
[4]   Phase I of the Highland Park subdivision is located in Monroe County and 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 the north. The plat, recorded in

      1977, included Covenant G, which states that nothing shall be done on any lot

      “which may be or become an annoyance or nuisance to the neighborhood.”

      Centennial Park, LLC v. Highland Park Estates, LLC, 117 N.E.3d 565, 568 (Ind. Ct.

      App. 2018). On December 21, 2016, Centennial Park acquired thirty acres of

      real estate directly north of Highland Park. Id. Centennial Park had only one

      means of ingress and egress at the time, a roadway through a subdivision to the

      west. Although Highland Park was developing Phase II of the Highland Park

      subdivision and offered Centennial Park an easement for access through it,

      Centennial Park apparently decided that it did not want to wait for improved

      access.

[5]   To that end, Centennial Park purchased Lot 15 in Highland Park, which is on

      the cul de sac, and asked the Town of Ellettsville to annex Lot 15, which it did,



      Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020        Page 3 of 14
      on May 22, 2017. On June 6, 2017, Centennial Park granted Ellettsville a fifty-

      foot-wide easement and right-of-way over the western side of Lot 15,

      connecting Centennial Drive to the Centennial Park subdivision. Centennial

      Park installed a construction road across Lot 15 and intends to construct a

      permanent access road. Debra Hackman owns Lot 16 on the cul de sac, and

      the installation of the construction road knocked down her mailbox three times

      and construction traffic has blocked access to her driveway, torn up the cul de

      sac, and spread mud over the roadway. Hackman indicated that one of the

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

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

[6]   On August 3, 2017, Highland Park sued 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. Id. at 568–69.

      The trial court determined that the construction and future existence of the

      access road would violate the provisions of Covenant G and enjoined further

      construction. On appeal, we affirmed the trial court’s issuance of the injunction

      against Centennial Park. Id. at 573.

[7]   Meanwhile, on November 28, 2017, Centennial Park had petitioned for a

      partial plat vacation and vacation of covenants related to Lot 15. On August 2,

      2018, the Ellettsville Plan Commission approved Centennial Park’s petition for

      partial plat vacation and vacation of covenants. On August 31, 2018, Highland

      Park and Hackman petitioned the Monroe Circuit Court for a writ of certiorari



      Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020        Page 4 of 14
      and judicial review in Cause No. 53C06-1808-PL-1782. Town of Ellettsville, Ind.,

      Plan Comm’n v. Highland Park Estates, LLC, No. 19A-PL-466 at *2 (Ind. Ct. App.

      October 16, 2019). On November 5, 2018, the Plan Commission moved to

      dismiss Highland Park and Hackman’s petition on the basis that they had not

      timely filed the Plan Commission’s record. Id. The Monroe Circuit Court

      denied the Plan Commission’s motion to dismiss, and the Plan Commission

      sought and received permission to file an interlocutory appeal. Id. at *3. On

      October 16, 2019, in cause number 19A-PL-466 (“Cause No. 466”), we

      reversed the Monroe Circuit Court’s denial of the Plan Commission’s motion to

      dismiss. Id. at *7. On October 29, 2019, Centennial Park moved for relief from

      judgment from the trial court’s injunction pursuant to Indiana Trial Rule

      60(B)(7) and (B)(8), citing the Plan Commission’s vacation of the restrictive

      covenants. On February 12, 2020, the trial court denied Centennial Park’s

      motion for relief from judgment.


                                  Discussion and Decision
[8]   Centennial Park contends that the trial court abused its discretion in denying its

      motion for relief from judgment. Trial Rule 60(B) provides, in part, that “[o]n

      motion and upon such terms as are just the court may relieve a party or his legal

      representative from a judgment, including a judgment by default[.]”

              Our scope of review for the grant or denial of a T.R. 60(B)
              motion is limited to whether the trial court abused its discretion.
              An abuse of discretion occurs where the trial court’s judgment is
              clearly against the logic and effect of the facts and inferences
              supporting the judgment for relief. Second, [when] the trial court




      Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020          Page 5 of 14
               enters a general judgment, we will affirm on any theory
               supported by the evidence of record.
      McIntyre v. Baker, 703 N.E.2d 172, 174 (Ind. Ct. App. 1998) (citations omitted).

      Centennial Park argues that because Covenant G has been vacated, there is no

      longer any valid reason to enjoin it from building a construction and/or access

      road through Lot 15. Highland Park counters that, even though Covenant G

      has been vacated, the trial court had an independent basis on which to deny

      Centennial Park’s motion for relief from the injunction.1 Specifically, Highland

      Park argues that Centennial Park is not entitled to relief from judgment because

      the trial court’s injunction can be justified on the basis that the access road to

      Centennial Park constitutes a nuisance that can be enjoined even without

      Covenant G.

      I. Whether There Was an Independent Basis for Finding
         that the Access Road Would Constitute a Nuisance
[9]   “In Indiana, nuisances are defined by statute.” Wernke v. Halas, 600 N.E.2d

      117, 120 (Ind. Ct. App. 1992). Pursuant to Indiana Code section 32-30-6-6,

      “[w]hatever is […] injurious to health[,] indecent[,] offensive to the senses[,] or

      [] an obstruction to the free use of property [] so as essentially to interfere with

      the comfortable enjoyment of life or property, is a nuisance[.]” Nuisances may




      1
        Highland Park suggests that because it lost in Cause No. 466 on what it characterizes as a technicality, we
      should now be able to address its arguments that the Plan Commission’s decision to vacate restrictive
      covenants was contrary to Indiana statutory law and violated its constitutional rights. Even assuming,
      arguendo, that we could address the merits of that case, our disposition of Centennial Park’s claim renders it
      unnecessary to do so.




      Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020                                   Page 6 of 14
be categorized as public or private. A public nuisance is that which affects an

entire neighborhood or community, while a private nuisance affects only one

individual or a determinate number of persons. Hopper v. Colonial Motel Props.,

Inc., 762 N.E.2d 181, 186 (Ind. Ct. App. 2002). A private nuisance 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. Id. Moreover, a nuisance may

be a nuisance per se, something which cannot be lawfully conducted or

maintained, or may be nuisance per accidens, where an otherwise lawful use

becomes a nuisance by virtue of the circumstances surrounding the use. Id.

Whether something is a nuisance per se is a question of law, and whether

something is a nuisance per accidens is a question for the trier of fact. Wernke,

600 N.E.2d at 120. “[T]he relevant inquiry is whether the thing complained of

produces such a condition as in the judgment of reasonable persons is naturally

productive of actual physical discomfort to persons of ordinary sensibility,

tastes, and habits.” Wendt v. Kerkhof, 594 N.E.2d 795, 797 (Ind. Ct. App. 1992).

Because the access road at issue affects a determinate number of persons (i.e.

those who live on the cul de sac and would be subjected to additional traffic2)

and there is nothing inherently illegal about the access road Centennial Park




2
  Of course, some residents of the cul de sac would be affected more than others, like those whose families
include small children (like Hackman’s); who specifically chose to live on the cul de sac, presumably because
there would be no through traffic (also like Hackman); and/or those who would be living adjacent to the
access road (again, like Hackman).




Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020                                 Page 7 of 14
       seeks to construct, the question is whether the record could support a

       determination that the access road would cause a private nuisance per accidens.

[10]   In the trial court’s February 28, 2018, order, it entered the following findings

       and conclusions:

                                            FINDINGS OF FACT
               [….]
               11.      [Centennial Park’s] actions have negatively impacted the
                        area around the cul-de-sac by causing construction
                        vehicles and heavy equipment to travel through the cul-de-
                        sac resulting in damage to at least one of the neighboring
                        properties. Deborah Hackman is the owner of Lot 16,
                        which is located on the cul-de-sac. According to Ms.
                        Hackman, who resides on this property, as a result of the
                        construction traffic for [the Centennial Park subdivision’s]
                        development, her mailbox has been knocked down three
                        times, the construction traffic has blocked her access to her
                        driveway, and the construction traffic has torn up the cul-
                        de-sac and spread mud over the roadway. Ms. Hackman
                        testified that she purchased Lot 16 because it was located
                        on a 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 [the Centennial Park’ subdivision’s]
                        development as well as other subdivisions connected to
                        [the Centennial Park subdivision], 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. Even
                        with the installation of a reverse “S” curve, [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.




       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020             Page 8 of 14
        [….]
        14.      [Centennial Park’s] intended reconfiguration of Centennial
                 Drive from a cul-de-sac to a public community
                 thoroughfare is a substantial change of use of the cul-de-
                 sac which will generate a tremendous increase in traffic,
                 projected to be an increase of approximately two thousand
                 vehicle trips per day. This is a substantial alteration of the
                 neighborhood and the use of properties in the
                 neighborhood and constitutes an annoyance and nuisance
                 to the owners of the lots on the Centennial Drive cul-de-
                 sac in violation of restrictive covenant G.
        […]
                                  CONCLUSIONS OF LAW
        [….]
        9.       [Centennial Park’s] construction of an access road across
                 Lot 15 to [the Centennial Park subdivision], [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 [….] Covenant G insofar as they
                 constitute an annoyance or nuisance to the neighborhood.
                 While [Centennial Park] correctly argues that nothing in
                 the plat restricts the use of the lots in Phase I to residential
                 purposes, the plat clearly shows that the subdivision was
                 designed so that certain lots, including Lot 15 would be
                 located on a cul-de-sac, and not on a main public
                 thoroughfare.
        [….]
        11.      [Centennial Park’s] construction of a main thoroughfare
                 across Lot 15, thus substantially increasing the traffic
                 flowing through an area, which was created as a
                 neighborhood on a cul-de-sac, and altering a portion of a
                 residential lot to become a major public thoroughfare is
                 inconsistent with […] the parties’ intention in creating the




Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020                Page 9 of 14
                         restriction and amounts to an annoyance and nuisance to
                         the neighborhood, as prohibited by Covenant G.
       Appellant’s App. Vol. II pp. 18, 20–23.

[11]   Centennial Park does not challenge any of the trial court’s findings, so we

       accept them as established. See, e.g., Johnson v. Payne, 549 N.E.2d 48, 49 (Ind.

       Ct. App. 1990) (“Where a party challenges the judgment only as contrary to

       law and does not challenge the special findings as unsupported by the evidence,

       we do not consider the evidence but accept the findings as true and look to

       them to determine whether they support the judgment.”), trans. denied. For that

       matter, Centennial Park does not challenge the trial court’s conclusion that the

       construction and the future existence of the access road through Lot 15

       constitutes a nuisance and would continue to do so pursuant to Covenant G.

[12]   Centennial Park argues only that the trial court’s February 28, 2018, order

       cannot now support an injunction because the trial court did not specifically

       conclude that the access road would constitute a nuisance in general, only that

       it would be a nuisance pursuant to the now-vacated Covenant G.3 To get

       straight to the point, this argument seems to be based on at least two false

       premises. First, Centennial Park would seemingly have us accept that its

       obligation not to cause a nuisance stemmed exclusively from Covenant G.




       3
         While Centennial Park uses the term “common law nuisance,” this concept does not seem to have
       relevance in a private-nuisance context. See, e.g., VanHawk v. Town of Culver, 137 N.E.3d 258, 267 (Ind. Ct.
       App. 2019) (“Although Indiana has specifically declared that the conduct prescribed in the statute constitutes
       a public nuisance, ‘the common law tort of public nuisance exists[.]’”) (citation omitted). We take
       Centennial Park’s argument as a claim that the trial court did not specifically find that the access road would
       constitute a nuisance in general.




       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020                                  Page 10 of 14
       Centennial Park’s actions would have been, and still are, subject to general

       nuisance law even if Covenant G had never existed. Moreover, to the extent

       that Centennial Park’s argument may depend on the notion that there is

       somehow a difference between a nuisance pursuant to Covenant G and a

       nuisance in general, Centennial Park neither cites any authority for this

       proposition nor explains what it believes the difference to be. In the end,

       Centennial Park has always been obligated to not use Lot 15 in such a way that

       causes a nuisance, and the vacation of Covenant G did nothing to change that.

[13]   It is of no consequence that the trial court did not specially conclude that

       Centennial Park’s use of Lot 15 was a nuisance in general. Because we may

       affirm on any basis apparent in the record, see, e.g., McIntyre, 703 N.E.2d at 174,

       the trial court’s stated rationale does not tie our hands. Moreover, because

       Covenant G was still in effect in February of 2018, we should not be surprised

       that the question of whether the access road would constitute a nuisance in

       general was not put before the trial court at that time. We should also not be

       surprised, then, that the trial court did not specifically address the question. In

       sum, we conclude that the record is sufficient to sustain a conclusion that the

       access road’s construction and future existence would constitute a private

       nuisance per accidens independent of Covenant G. We now turn our attention to

       Centennial Park’s specific claims regarding Trial Rule 60(B).




       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020          Page 11 of 14
                       II. Whether the Trial Court Abused its
                       Discretion in Denying Centennial Park’s
                          Motion for Relief from Judgment
[14]   As mentioned, our scope of review for the grant or denial of a T.R. 60(B)

       motion is limited to whether the trial court abused its discretion. McIntyre, 703

       N.E.2d at 174. Centennial Park argues that it was entitled to relief pursuant to

       two subsections of Trial Rule 60(B), (B)(7) and (B)(8). Because both of

       Centennial Park’s arguments depend on us accepting the contention that the

       record cannot support a conclusion that its activities on Lot 15 were and would

       continue to be a nuisance in general, neither need detain us long.

                                         A. Trial Rule 60(B)(7)
[15]   Subsection (B)(7) allows for relief when “the judgment has been satisfied,

       released, or discharged, or a prior judgment upon which it is based has been

       reversed or otherwise vacated, or it is no longer equitable that the judgment

       should have prospective application[.]” “To establish that it is no longer

       equitable for a final judgment to have prospective application the movant must

       show that there has been a change of circumstances since the entry of the

       original judgment and that the change of circumstances was not reasonably

       foreseeable at the time of entry of the original judgment.” McIntyre, 703 N.E.2d

       at 174–75.

[16]   The trial court did not abuse its discretion in concluding that subsection (B)(7)

       does not entitle Centennial Park to relief from its previous judgment. While it

       is true that Covenant G had been vacated, we have concluded that the trial




       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020        Page 12 of 14
       court’s injunction can be justified on the basis that the record supports a finding

       that the access road would be a nuisance even without it. Consequently, the

       vacation of Covenant G did not change circumstances such that it would be

       inequitable to enforce the injunction prospectively.

                                          B. Trial Rule 60(B)(8)
[17]   Subsection (B)(8) allows for relief for any reason (other than those mentioned in

       subsections (B)(1) through (B)(4), which are not relevant here) justifying relief

       from the operation of the judgment.

               The decision of whether the grant a Trial Rule 60(B)(8) motion is
               left to the equitable discretion of the trial court, and is reviewable
               only for abuse of discretion. Gipson v. Gipson, 644 N.E.2d 876,
               877 (Ind. 1994).
               [….]
               A motion for relief from judgment filed for reason (8) shall be
               filed within a reasonable time and must allege a meritorious
               claim or defense. Ind. Trial Rule 60(B). [A] meritorious claim or
               defense is “one that would lead to a different result if the case
               were tried on the merits.” Butler v. State, 933 N.E.2d 33, 36 (Ind.
               Ct. App. 2010) (quoting Bunch v. Himm, 879 N.E.2d 632, 637
               (Ind. Ct. App. 2008)). Additionally, in order to be granted relief
               pursuant to Ind. Trial Rule 60(B)(8), the moving party must
               demonstrate some extraordinary or exceptional circumstances
               justifying equitable relief.
       State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016).

[18]   Centennial Park has also failed to establish that it is entitled to relief pursuant to

       subsection (B)(8). At the very least, because we have concluded that the trial

       court’s injunction can be justified on a basis independent of Covenant G, the

       vacation of Covenant G in another proceeding does not provide Centennial


       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020            Page 13 of 14
       Park with a meritorious claim that the injunction should be lifted. To

       summarize, because the record supports a conclusion that the access road

       would be a nuisance with or without Covenant G, Centennial Park has failed to

       establish that the trial court abused its discretion in denying its motion for relief

       from judgment.

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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 20A-PL-467 | July 21, 2020           Page 14 of 14
