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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: GREGORY S. REISING

FILED
Aug 05 2008, 9:50 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: MARC C. LATERZO

Gary, Indiana

Gary, Indiana

IN THE COURT OF APPEALS OF INDIANA

ANDY'S TRUCK & EQUIPMENT CO., INC., An Illinois Corporation registered to do business in Indiana, Appellant-Defendant, vs. CITY OF GARY, INDIANA by its MAYOR RUDOLPH CLAY, Appellee-Plaintiff.

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No. 45A03-0711-CV-524

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable William E. Davis, Judge Cause No. 45D02-0507-PL-00122

AUGUST 5, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

HOFFMAN, Senior Judge

Defendant-Appellant Andy's Truck & Equipment Co., Inc. appeals the trial court's findings of fact and conclusions of law regarding certain activities on its property in Gary, Indiana. We affirm. Andy's presents three issues for our review, which we restate as one: whether the trial court's findings of fact and conclusions of law are clearly erroneous. Andy's Truck & Equipment Co., Inc. ("Andy's") is a business in Gary, Indiana that sells used truck parts and machinery. Andrew Young is the president of Andy's. The City of Gary ("the City") filed a complaint against Andy's alleging that Andy's was using its property in violation of city ordinances. After prolonged litigation, a bench trial was held, and the trial court entered its findings of fact and conclusions of law enjoining Andy's from engaging in certain activities on its property. This appeal ensued. When the trial court enters findings of fact and conclusions of law, we apply a two-tiered standard of review: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. S.C. Nestel, Inc. v. Future Const., Inc., 836 N.E.2d 445, 449 (Ind. Ct. App. 2005). The trial court's findings and conclusions will be set aside only if they are clearly erroneous. Id. "Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them." St. John Town Bd. v. Lambert, 725 N.E.2d 507, 518 (Ind. Ct. App. 2000). A judgment is clearly erroneous when it is not supported by the findings of fact. Id. Put another way, a judgment is clearly erroneous when a review of the record 2

leaves us firmly convinced that a mistake has been made. S.C. Nestel, Inc., 836 N.E.2d at 449. In determining whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Id. Moreover, we will not reweigh the evidence or assess witness credibility. Id. Andy's contends that the trial court's findings of fact and conclusions of law are clearly erroneous. Specifically, Andy's challenges the propriety of Finding of Fact #8 and Conclusion of Law #3. First, Andy's argues that the trial court improperly relies upon certain state statutes that the court enumerated in Finding of Fact #8. Finding of Fact #8 states: 8. Gary City Ordinance[] 163.003, Indiana Code 13-11-2-16.5, I.C. 13-112-16.3, I.C. 13-11-2-66.9, I.C. 13-11-2-1[3]0.1, I.C. 13-11-2-130.3, I.C. 13-11-2-250, and I.C. 13-11-2-251 define "Automobile Wrecking Yard," "Junk Yard," "Automobile Scrapyard," "Automotive Salvage Recycler," "End of Life Vehicle," "Motor Vehicle," "Motor Vehicle Recycler," "Waste Tire," and "Waste Tire Storage Site," respectively. Appellant's Appendix at 20. Although the trial court is correct in asserting that the above-referenced statutes define the respective terms, the evidence in the present case supports only two of the cited definitions. The amended complaint, as well as the evidence presented by the City at trial, refer only to Andy's violations of Gary city ordinances with regard to zoning issues, specifically Gary City Ordinance

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