Saurabh Bagchi and Somali Chaterji v. Amberleigh Village Homeowners Association, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 13, 2020
• Docket: 19A-PL-2070
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 13 2020, 10:23 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 APPELLANTS ATTORNEY FOR APPELLEE Michael Ghosh Ryan C. Munden Carmel, Indiana Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA

Saurabh Bagchi and Somali March 13, 2020 Chaterji, Court of Appeals Case No. Appellants-Defendants, 19A-PL-2070 Appeal from the Tippecanoe v. Circuit Court The Honorable Sean M. Persin, Amberleigh Village Judge Homeowners Association, Inc., Trial Court Cause No. Appellee-Plaintiff 79C01-1801-PL-18

Altice, Judge.

Case Summary [1] Saurabh Bagchi and Somali Chaterji (collectively, Property Owners) appeal the

trial court’s judgment in favor of the Amberleigh Village Homeowners

Association, Inc. (the HOA), ordering Property Owners to modify the fence Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 1 of 13 they constructed around their front and back yards to comply with restrictive

covenants of the subdivision in which they live. On appeal, Property Owners

present two issues for our review, which we restate as:

1. Did the trial court err when it determined that the HOA rejected the Property Owners’ proposed plan for installation of a fence around their front and back yards?

2. Did the trial court err in concluding that the HOA, which waited over three years to provide the Property Owners with notice of the non-compliance of their fence with the restrictive covenants, did not acquiesce in the existence of the non- complying fence?

[2] We affirm.

Facts & Procedural History [3] Property Owners own one parcel in the Amberleigh Village subdivision in West

Lafayette, Indiana. All parcels of land within Amberleigh Village are governed

by the Amended Declaration of Covenants, Conditions and Restrictions of

Amberleigh Village (the Covenants). The Covenants provide, in relevant part,

as follows:

Section 6.2 Architectural Control. No building, outbuilding, mailbox, fence, satellite dish, wall or other structure, except original construction of Dwelling Units by or on behalf of the Declarant, shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration therein, other than by the Declarant, be made until the plans and specifications showing the nature, kind, shape, height, materials, color and location of the same shall have Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 2 of 13 been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Declarant until the end of the Development Period, the Board of Directors may appoint three (3) or more representatives to an Architectural Committee. Any change in the appearance or color of any part of the exterior of a residence shall be deemed a change thereto and shall require the approval therefore as above provided. In the event that written approval is not received as required hereunder within thirty (30) days after complete plans and specifications have been submitted, approval will not be required and this Section will be deemed to be fully complied with.

Section 6.3 Fences. All fences will be similar in design to that attached as Exhibit B, except privacy fences, walls, or screening constructed directly adjacent to the dwellings [sic] rear patio, in which case they shall be no greater than 6 feet in height. The Architectural Committee shall review such request pursuant to the standards and procedures set forth in Section 6.2. The Owner shall maintain all fences in top quality condition, including replacement of damaged or rotten fence posts or panels. The [HOA] may enforce this provision by requiring either appropriate maintenance by the Owner or removal of the fence by the Owner. All courtyard homes must use a white vinyl decorative fence (approved by the Architectural Committee) constructed directly adjacent to the dwelling’s rear patio.

Exhbits at 17-18 (emphases added). Exhibit B to the Covenants provided the

following depiction:

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 3 of 13 [4] In 2014, Property Owners contacted Steve Abston, then the president of the

HOA, and informally inquired about installation of a fence around their

property. Abston explained the specifications for installation of fences and

advised Property Owners of the procedure for obtaining approval by the HOA.

Abston also provided them with direct links to the Covenants and a request

form for architectural approval.

[5] On or about June 2, 2014, Property Owners submitted their complete plans and

specifications to the HOA outlining their intent to install an eight-foot fence

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 4 of 13 around the front and back of their property. Property Owners desired a higher

fence for safety and security purposes.

[6] Abston was president and sole member of the HOA from 2014 through the

summer of 2017, and during his tenure he operated “as a one man show” as

there were no other board members or an architectural review committee.

Transcript Vol. 2 at 32. He thus had sole decision-making authority for the HOA

to approve architectural plans submitted for review.

[7] On June 23, 2014, Abston sent an email to Property Owners acknowledging

receipt of their submission and informing them that the Covenants did not

permit an eight-foot fence. He also requested additional time to investigate the

matter further. On July 2, 2014, the Property Owners requested an update.

Abston responded on July 7, 2014, explaining that he had reached out to two

individuals who confirmed that an eight-foot fence was not permitted and that

he was waiting to hear back from a third individual. Property Owners agreed to

wait a little longer for an answer. On July 24, 2014, Property Owners followed

up with Abston. In this communication, Property Owners stated that “[a] 5ft

next to the road is ridiculous” and that “[m]ost fences in other neighborhoods

are taller.” Exhibits at 55. Abston responded later that day, informing Property

Owners that their proposed fence did not comply with the Covenants. He

stated:

Sorry for the delayed response again. I have asked around as many knowing people as possible, and there is nothing in our architecture regulations that would allow the 8-ft fencing. The

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 5 of 13 only “standard” that we have has been untouched since the HOA was created in 2006. Right now, the HOA consists of me. So, I am the architecture committee, as well as all other committees. . . . I would say the best route, if you would still like to try and go for something above 6 feet,[ 1] would be to try and get attendance to a meeting.

***

I wish I had better news for you, right now, but this is where we’re at. Please let me know if you would like to do anything moving forward.

Exhibits at 55. According to Abston, his email to Property Owners was his

“nice way” of saying that their fence proposal was denied, unless or until the

plans were approved at an HOA meeting. Transcript Vol. 2 at 17. Property

Owners and Abston exchanged a few more emails that evening regarding a

possible HOA meeting in August with such being the final exchange regarding

installation of a fence on Property Owners’ lot.

[8] In August 2014, Property Owners hired a contractor to construct a wooden

fence according to their original submission to the HOA except with a fence

height of six feet rather than eight feet. The fence also was not “scalloped” on

the top as required by the Covenants. Appellants’ Appendix at 58. Property

Owners stipulate that they did not receive approval in writing prior to erecting

1 The only allowance in the Covenants for a six-foot fence was for a privacy fence, wall, or screen “directly adjacent to the dwellings [sic] rear patio.” Exhibits at 17. Further, for “courtyard homes” in the subdivision, which includes Property Owners’ home, fences must be constructed of a white, vinyl decorative fence.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 6 of 13 the fence. The contractor worked for approximately two weeks to construct the

six-foot fence around the front and back yards of the Property Owners’ lot. The

fence is pictured below.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 7 of 13 There was no action taken by Abston on behalf of the HOA during construction

of the fence or throughout his tenure as president of the HOA, nor were there

any documented complaints or complaints made to Abston by other residents

in the neighborhood. Abston testified that he did not know that Property

Owners installed the fence. Abston’s tenure as president of the HOA ended

during the summer of 2017, when a new president was named.

[9] On January 26, 2018, the HOA filed a complaint against Property Owners,

asserting that Property Owners violated the Covenants by installing a fence (1)

without the HOA’s written approval and (2) which was not in compliance with

the Covenants. The relief sought by the HOA was an order from the court

requiring Property Owners to remove their fence. Property Owners filed their

answer and affirmative defenses on March 26, 2018. The trial court conducted

a bench trial on January 29, 2019. Before the bench trial commenced, the

parties filed a Joint Stipulation of Facts. On June 7, 2019, the trial court

entered judgment in favor of the HOA and against the Property Owners based

upon its determination that the HOA had rejected the Property Owners’ fence

proposal. The court directed Property Owners to submit a plan to modify their

fence such that it would be acceptable to the HOA. The court further ordered

that if an agreement as to an acceptable fence could not be reached, the

Property Owners were required to remove the fence no later than June 7, 2020.

Property Owners filed a motion to correct error, which the trial court denied.

Property Owners now appeal. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 8 of 13 Discussion & Decision [10] The trial court issued findings of fact and conclusions of law pursuant to Ind.

Trial Rule 52. Under T.R. 52(A), the clearly erroneous standard applies to

appellate review of facts determined in a bench trial with due regard given to

the opportunity of the trial court to assess witness credibility. Trinity Homes,

LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). Findings of fact are clearly

erroneous when the record lacks any reasonable inference from the evidence to

support them, and the trial court’s judgment is clearly erroneous if it is

unsupported by the findings and conclusions which rely upon those findings.

CSL Cmty. Ass'n, Inc. v. Meador, 973 N.E.2d 597, 600 (Ind. Ct. App. 2012), trans.

denied. In establishing whether the findings or judgment are clearly erroneous,

we consider only the evidence favorable to the judgment and all reasonable

inferences to be drawn therefrom. Id. We cannot reweigh the evidence or

judge the credibility of any witness and must affirm the trial court’s decision if

the record contains any supporting evidence or inferences. Id. While we defer

substantially to findings of fact, we do not do so for conclusions of law. Id. We

evaluate conclusions of law de novo and owe no deference to a trial court’s

determination of such questions. Id.

1. Rejection of Fence Proposal

[11] Property Owners argue that the evidence does not support the trial court’s

finding that the HOA rejected their fence proposal. Specifically, they argue that

because the HOA did not, in accordance with Section 6.2 of the Covenants,

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 9 of 13 issue a written approval within thirty days after they submitted their plan, their

plan was deemed approved.

[12] A restrictive covenant is an express contract between the grantor and the

grantee that restrains the grantee’s use of his land. Villas West II of Willowridge

Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008). As this

court has before noted, “[o]ne purpose of restrictive covenants is to maintain or

enhance the value of land ‘by controlling the nature and use of lands subject to

a covenant’s provisions.’” Grandview Lot Owners Ass’n, Inc. v. Harmon, 754

N.E.2d 554, 557 (Ind. Ct. App. 2001). Although the law does not favor

restrictive covenants, the contractual nature of these restrictions has led courts

to enforce them in equity as long as the restrictions are unambiguous and do

not violate public policy. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct.

App. 1992).

[13] Per the parties’ stipulation of facts, the court noted that Property Owners

formally submitted complete plans and specifications to Abston for approval.

Although they were provided with the specifications for fences as set out in the

Covenants, Property Owners submitted a proposal for an eight-foot fence, with

a straight, not scalloped top edge, around both their front and back yards. The

proposed fence did not comply with the Covenants in any respect.

[14] On June 23, 2014, about three weeks after Property Owners submitted their

plans, Abston responded that he could not find “any allowance in the

regulations” for an eight-foot fence. Exhibits at 57. Abston asked for more time

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 10 of 13 to investigate the matter and determine whether it would be possible to

accommodate their request for an eight-foot fence. Property Owners agreed to

give Abston more time. After Abston spoke with at least three other people, he

informed Property Owners that their fence proposal did not meet the

Covenants.

[15] This evidence demonstrates that within the allotted thirty-day period for a

response to their proposal, Abston notified Property Owners that an eight-foot

fence was not permitted under the Covenants. Thus, rather than issuing a

written approval, Abston issued a written denial of Property Owners’ fence

proposal. Property Owners granted Abston additional time to find a way

around the restrictive covenant that prohibited their proposed fence.

Ultimately, after talking with others in the neighborhood, Abston told Property

Owners that there was no way around the covenant and confirmed what he

originally communicated to them that an eight-foot fence was not allowed. 2

Based on the record, we conclude that the trial court did not err in finding that

Property Owners proposed fence plan “was not accepted by the HOA.”

Appellants’ Appendix at 13.

2 To the extent Property Owners argue that the HOA did not reject their proposed placement of the fence or its design because they were only informed that the fence could not be eight feet in height, we disagree. There is nothing in the Covenants that required Abston to identify every aspect of the fence that was not in compliance therewith. Moreover, the Covenants clearly set out the specifications for fences as to placement and design and the Property Owners’ proposed fence obviously did not comply with those specifications.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 11 of 13 [16] We also note that the fence ultimately constructed on Property Owners’ lot was

not the fence described in the plans that they submitted for approval. While

Property Owners claimed that they had discussions with Abston about going

ahead with the original plans except with a height of six feet, Abston did not

remember any such conversations. To credit Property Owners’ claim, we

would have to judge the credibility of the witnesses, which we will not do. See

Meador, 973 N.E.2d at 600. In any event, it remains that the plans and

specifications for the fence that was erected on Property Owners’ lot were never

formally submitted for the HOA’s approval.

2. Acquiescence

[17] Property Owners argue that the trial court erred in not finding laches, waiver, or

acquiescence by the HOA given that the HOA waited three years to confront

them about their fence and nearly four years to file suit. Property Owners assert

that the fact that Abston never noticed the fence following its installation

“seemed rather suspect.” Appellants’ Brief at 12. Indeed, during the bench trial,

the trial court questioned Abston about his claims that he did not know about

the fence and that, although he lived in the neighborhood, he had not seen it in

the three years since it was installed. Nevertheless, the trial court,

acknowledging that it was “a close call,” ultimately concluded that the HOA

did not acquiesce in Property Owners’ construction of the non-compliant fence.

Appellants’ Appendix at 13. To address Property Owners’ argument would

require that we reweigh the evidence, a task that we will not undertake upon

appeal. See Meador, 973 N.E.2d at 600.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 12 of 13 [18] Moreover, we note that Section 10.2 of the Covenants provides, in pertinent

part:

No delay or failure by any person to enforce any of the restrictions or to invoke any available remedy with respect to a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by that person of the right to do so thereafter, or an estoppel of that person to assert any right available to him upon the occurrence, recurrence or continuation of any violation or violations of the restrictions.

Exhibits at 31. Nonwaiver clauses such as this are generally enforced in

Indiana. See, e.g., Johnson v. Dawson, 856 N.E.2d 769, 774 (Ind. Ct. App. 2006).

Hence, pursuant to Section 10.2, the HOA may enforce the Covenants against

Property Owners despite that it has been more than four years since they

erected the fence that does not comply with the Covenants. Property Owners

are barred from raising the equitable defenses of laches, waiver, and

acquiescence. See id. (holding that nonwaiver provision permitted enforcement

of restrictive covenant despite prior violations by other landowners).

Judgment affirmed.

Robb, J. and Bradford, C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 13 of 13