Minder v. Martin Luther Home Foundation

558 N.E.2d 833, 1990 Ind. App. LEXIS 1051, 1990 WL 118782

• Court: Indiana Court of Appeals
• Decided: August 13, 1990
• Docket: 61A04-8908-CV-00341
• Status: Published

Opinions

MEMORANDUM DECISION

MILLER, Presiding Judge.

Plaintiff-homeowners sought a declaratory judgment which would have prohibited, as a violation of deed restrictive covenants, the presence of an adult group home, the Martin Luther Home Foundation, in their subdivision. The trial court granted summary judgment in favor of the adult home. The majority of this court agrees with the trial court.

This case presents the same question raised in Clem v. Christole, Inc. (1990), Ind.App., 548 N.E.2d 1180 which held that the 1988 amendment of the adult group home statute (Ind.Code 16-13-21, 14.1) authorizing the location of group homes for developmentally disabled and mentally ill persons in single family residential subdivisions did not constitute a valid retroactive exercise of the state's police power. The amendment provided that such restrictions were void as against the public policy of the state. The majority of the court held that the amendment was not a valid retroactive exercise of the state's police power and that the proposed group homes violated the subdivision's restrictive covenants because they were a commercial, not a residential, use. The writer of this opinion dissented, stating:

"'The group homes in this case do not violate the restrictive covenants contained in the respective deeds. There is no dispute that both homes are the type of building-single family dwelling-permitted by the covenants. Further, the uses are residential and not the business uses prohibited by the covenants."

Id. at 1187 (Miller, J. dissenting).

The dissent further stated that, if the constitutional issues were of significance in the appeal, case law mandated that the retroactive provision in the statute: (1) did not violate due process, and (2) did not unconstitutionally impair the residents' contracts because it was a legitimate and narrowly drawn exercise of the police power. -

As noted, the majority here agrees with the conclusion of the dissent in Clem, supra. It is therefore unnecessary to restate the reasons.

The homeowners also raise one other issue. They claim the trial court improperly converted the home's Motion to Dismiss into a summary judgment. The court held a hearing and stated in its judgment that it had heard evidence and therefore was making the conversion pursuant to Ind. Rules of Procedure, Trial Rule 12. Homeowners claim there was no evidence at the hearing, but have failed, even after briefing revealed that the record of the hearing was not included in the record of proceedings, to bring that record before us. The trial court's judgment stated that evidence was heard at that hearing, and it is the homeowners' responsibility to show this court that the situation was otherwise. In Adams v. State (1989), Ind.App., 539 N.E.2d 985, this court, citing numerous supreme court decisions,¹ stated "our supreme court has consistently held that it is the appellant's duty to present a complete record to the reviewing court, and the failure to do so waives any alleged error based on absent material." Id. at 988.

The judgment of the trial court is affirmed.

CHEZEM, J., concurring in result. GARRARD, J., dissenting with opinion.

1 . Rondon v. State (1989), Ind., 534 N.E.2d 719; Stallings v. State (1987) Ind., 508 N.E.2d 550; Jackson v. State (1986), Ind., 496 N.E.2d 32; and Cox v. State (1985), Ind., 475 N.E.2d 664.