William E. Morrison and Sonya Morrison v. Putnam County Commissioners, and Donald Richards (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 18, 2020
• Docket: 19A-CP-1372
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as May 18 2020, 9:38 am

precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE PUTNAM Jay Meisenhelder COUNTY COMMISSIONERS Jay Meisenhelder Employment & Civil Trudy L. Selvia Rights Legal Services, P.C. Greencastle, Indiana Indianapolis, Indiana ATTORNEY FOR APPELLEE DONALD RICHARDS Robert J. Nice The Nice Law Firm Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William E. Morrison and Sonya May 18, 2020 Morrison, Court of Appeals Case No. Appellants/Respondents, 19A-CP-1372 Appeal from the Putnam v. Superior Court The Hon. Raymond M. Kirtley, Putnam County Commissioners, Senior Judge Appellee/Petitioner, Trial Court Cause No. 67D01-1402-PL-3 and

Donald Richards, Appellee/Intervenor.

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 1 of 7 Bradford, Chief Judge.

Case Summary [1] In 2014, the Putnam County Commissioners (“the County”) petitioned for a

temporary restraining order (“the TRO”) against William and Sonya Morrison

based on violations of the County’s zoning ordinance (“the Ordinance”). The

trial court granted the County’s request for the TRO, which apparently directed

the Morrisons to remove several items from their farm (“the Property”) that

were not being used for agricultural purposes, including semi-trailers, flatbed

trailers, and debris.1 Over the next two years, the Morrisons made little

progress, and, in November of 2016, neighbor Donald Richards intervened.

[2] In February of 2017, Richards moved for preliminary and permanent

injunctions, and the County moved for a preliminary injunction. In November

of 2017, the trial court issued a permanent injunction (“the Order”) in which it

ordered the Morrisons to remove items from the Property that were there in

violation of the Ordinance. We affirmed the Order on direct appeal. In March

of 2019, the trial court found that the Morrisons had violated the terms of the

Order, found them in contempt of court, and entered a $5000.00 judgment

1 Neither the County’s TRO petition nor the TRO itself appear in the record on appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 2 of 7 against them in favor of Richards (“the Contempt Order”). The Morrisons

contend that enforcement of the Ordinance against them violates their

constitutional rights to due process and equal protection of the law. Because

the Morrisons have waived their constitutional arguments for appellate review,

we affirm.

Facts and Procedural History [3] The Morrisons own approximately thirty-five acres of land in Cloverdale, and

Donald Richards owns a neighboring parcel of land. On February 7, 2014, the

County petitioned for a TRO, which the trial court issued on February 10,

2014. The petition apparently included a demand that the Morrisons remove

certain things, including semi-trailers, flat-bed trailers, and debris, from the

Property, and the TRO apparently so provided. The TRO also apparently

restrained the Morrisons from moving additional trailers and debris onto the

Property. In July of 2016, the trial court found that the Morrisons were not in

compliance with the TRO and ordered them to comply. On November 21,

2016, Richards intervened in the case. On February 9, 2017, Richards moved

for a preliminary and permanent injunction, and the County moved for a

preliminary injunction.

[4] On September 12, 2017, the trial court held an evidentiary hearing. On

November 30, 2017, the trial court issued the Order, in which it found that (1)

there were items on the property not being used for agricultural purposes,

including abandoned, junked, inoperable or derelict vehicles, machinery, farm

machinery equipment and other debris, and (2) the Morrisons were operating a

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 3 of 7 junkyard in violation of the Ordinance. Morrison v. Putnam Cty. Comm’rs, Cause

No. 18A-PL-462, slip op. at *1 (Ind. Ct. App. Sept. 21, 2018). The Order

provided that the Morrisons were to (1) remove semi-trailers, flatbed trailers,

and associated debris within thirty days; (2) remove additional tractors, trailers,

motor vehicles, backhoes, bulldozers, metal scrap, and any other associated

debris brought on to the Property since 2013 within ninety days; and (3) not

bring any further items onto the Property, except as permitted by the

Ordinance. Id. at *2.

[5] The Morrisons appealed from the Order, and we affirmed, concluding that the

judgment was supported by sufficient evidence. Id. at *3. We further

concluded that the Morrisons had waived their arguments that (1) the Property

was protected by a prior, nonconforming use; (2) the Order amounts to an

unconstitutional taking; and (3) their use of the Property was protected by the

Indiana Right to Farm Act.2 Id. at *4–5. On November 20, 2018, we issued a

memorandum decision on rehearing, in which we concluded that while the

Morrisons’ argument that the Property was protected by a prior,

nonconforming use had, in fact, been properly preserved, it was nonetheless

without merit. See Morrison v. Putnam Cty. Comm’rs, Cause No. 18A-PL-462,

slip op. at *1 (Ind. Ct. App. Nov. 20, 2018) (memorandum decision on

rehearing).

2 The Indiana Right to Farm Act, found at Indiana Code section 32-30-6-9, limits the circumstances under which agricultural operations may be deemed a nuisance.

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 4 of 7 [6] Meanwhile, the trial court had held compliance hearings on January 16, March

20, June 28, and September 6, 2018. On March 7, 2019, following an

inspection of the Property, the trial court issued the Contempt Order, in which

it found that the Morrisons had failed to comply with the Order despite having

reasonable time in which to do so and without good cause. Order p. 6. The

Contempt Order provided that (1) the County was authorized to enter the

Property and remove items to bring it into compliance with the Order, (2) the

Morrisons were to reimburse the County for any such remediation, (3) no

person was to interfere with remediation, and (4) a judgment of $5000.00 was

entered against the Morrisons in favor of Richards. Order pp. 6–7. On May 16,

2019, the trial court denied the Morrisons’ motion to correct error.

Discussion and Decision [7] We begin by noting that the County did not file an appellate brief in this

matter.3 We do not develop arguments on behalf of an appellee who fails to file

a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.

2018). In such cases, we will reverse if the appellant establishes prima facie

error, meaning error at first sight or error on the face of it. Id. That said, even

3 The County has filed a notice regarding its decision to forego filing an appellate brief in this matter, expressing its desire to rely on the brief it filed in the Morrisons’ previous appeal and its willingness to file a brief should we request one. We decline the County’s request to rely on its brief in the previous appeal and its invitation to determine whether it should file a brief in this one. First, the Morrisons’ previous appeal addressed the validity of the Order and this appeal challenges the sanctions imposed on the Morrisons’ for failing to comply with the Order, so we fail to see how briefing in the former could have relevance in the latter. Moreover, we decline the County’s seeming invitation to assist it in formulating its litigation strategy by deciding whether it should file an appellate brief. An appellee is, of course, under no obligation to file a brief, but the decision whether to file should be the appellee’s and the appellee’s alone.

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 5 of 7 in light of this relaxed standard, we still have the obligation to correctly apply

the law to the facts in the record to determine whether reversal is required. Id.

Because Richards has filed a brief, if the prima facie error doctrine is to benefit

the Morrisons, it will do so only to the extent that their arguments apply solely

to the County.

[8] The Morrisons appeal from the denial of their motion to correct alleged error in

the Contempt Order. “The standard of appellate review of trial court rulings on

motions to correct error is abuse of discretion.” Paragon Family Rest. v. Bartolini,

799 N.E.2d 1048, 1055 (Ind. 2003). Judgments of contempt are also reviewed

for an abuse of discretion. Mitchell v. Stevenson, 677 N.E.2d 551, 558–59 (Ind.

Ct. App. 1997), trans. denied. A trial court has abused its discretion when its

decision is against the logic and effect of the circumstances. Id.

[9] The Morrisons argue that the enforcement of the Ordinance in this case, up to

and including the Contempt Order, violates their constitutional rights to due

process and equal protection of the law. They argue, essentially, that they are

being unfairly singled out for punishment while others in the County with

properties in similar condition are not being punished. We need not address

these constitutional arguments on their merits, however, as they have been

waived for appellate review. As Richards points out, the Morrisons point to

nothing in the record to indicate that they raised any of these constitutional

arguments in the trial court, and our own review of the record reveals no sign

that they did. “Indiana courts have consistently held that a constitutional

question is not properly raised on appeal if the trial court was not apprised of

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 6 of 7 specific constitutional provisions upon which a party relies in asserting that

legislation is unconstitutional.” Saloom v. Holder, 158 Ind. App. 177, 183, 304

N.E.2d 217, 221 (1973). Moreover, “[a]s a general rule, a party may not

change its theory on appeal and present arguments that are different from those

raised in the trial court.” In re Paternity of T.M.Y., 725 N.E.2d 997, 1002 (Ind.

Ct. App. 2000), trans. denied. Because the Morrisons have raised their

constitutional arguments for the first time in this appeal, we will not consider

them. See, e.g., Whizfield v. State, 699 N.E.2d 666, 669 (Ind. Ct. App. 1998)

(“However, because this argument was raised for the first time on appeal, it will

not be considered.”), trans. denied.

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

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

Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 7 of 7