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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 APPELLANTS: MARK VAN DER MOLEN Merrillville, Indiana

ATTORNEY FOR APPELLEES: KEVIN G. KERR Hoeppner Wagner & Evans LLP Valparaiso, Indiana

FILED
Aug 31 2010, 9:44 am

IN THE COURT OF APPEALS OF INDIANA
DENNIS MORROW and LISA MORROW, Appellants-Defendants, vs. WALTER KUCHARSKI and LOIS KUCHARSKI, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 45A03-0911-CV-509

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Robert Kennedy, Special Judge Cause No. 45D03-9710-CP-3192

August 31, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellants-Defendants Dennis Morrow and Lisa Morrow ("the Morrows") appeal a $45,025.56 judgment in favor of their former neighbors, Appellees-Plaintiffs Walter Kucharski and Lois Kucharski n/k/a Lois Evans ("the Kucharskis"), upon the Kucharskis' private nuisance claim. We affirm. Issues The Morrows articulate three issues, which we consolidate and restate as a single issue: whether the judgment is clearly erroneous. Additionally, the Kucharskis request appellate attorney's fees. Facts and Procedural History In 1990, the Kucharskis purchased property located on Joliet Street in St. John, Indiana, in an area zoned for residential uses.1 The Morrows purchased adjoining property in 1992 and sometime later began to operate a home-based business, Contrak Courier, Inc.2 The Kucharskis contacted St. John's attorney to complain of alleged zoning violations by the Morrows relative to business traffic, use of invasive outdoor lighting, and re-direction of water flow. The Kucharskis reported that the Morrows had employees arriving intermittently, day and night, sometimes idling trucks at length and conducting audible conversations on twoway radios or cellular devices. They also asserted that the Morrows had installed motion
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Minor business uses were permissible, such as child care for fewer than six children or sales of Mary Kay cosmetics.
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The business involved the pick-up and delivery of medical specimens.

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detection lights and that Dennis Morrow had trimmed leaves away from a pre-existing mercury vapor light. This flooded the Kucharskis' house with light at night and brightly illuminated their backyard when there was movement there, even by pets. Lois Kucharski, a migraine sufferer, was particularly affected by the light. Finally, the Kucharskis claimed that the Morrows had conducted excavation and fill activities, causing water that previously pooled in a saucer-like depression across both properties and continued to flow after the saucer was filled to pool exclusively on the Kucharski property and remain stagnant. At times, approximately 20% of the Kucharski property was under water. The Kucharskis waded through water to reach their vegetable garden and were required to contend with a significant increase in mosquitoes. At the direction of St. John's zoning officials, the city attorney declined to sue the Morrows on behalf of the city, but he conducted limited inspections and attempted to negotiate a solution satisfactory to both of the neighboring couples. The dispute resolution efforts were unsuccessful and the contentious relationship between the neighbors remained unresolved. On October 7, 1997, the Kucharskis filed a complaint seeking injunctive relief and private nuisance damages. On July 10, 2000, the Kucharskis filed an amended complaint alleging nuisance and violations of the St. John Zoning Ordinance, and seeking damages and injunctive relief. Over the next several years, the matter was repeatedly continued.3 On August 8 and 9, 2006, a bench trial was conducted. Over three years later, on September 30, 2009, the trial
3

The Morrows sold their property and moved away. The Kucharskis divorced and Walter Kucharski remained in possession of the subject property.

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court entered its Findings of Fact, Conclusions of Law, and Order. The trial court found the Morrows liable for a private nuisance and awarded the Kucharskis damages as follows: $9,020.56 for out-of-pocket expenses, $9,465 for damages "relating to the time, frustration, annoyance, and interference with the use of their property ... in connection with the operation of the home business," $18,930 "relating to the time, frustration, annoyance and interference with the use of their property ... in connection with the glare cast from the Morrow property onto the Kucharski property," and $7,610.00 "relating to the time, frustration, annoyance, and interference with the use of their property as a result of the Morrows' re-grading of the property to the detriment of the Kucharski property." (App. 41.) The trial court found that a violation of the St. John Zoning Ordinance had not been established and also denied the Kucharskis an award of attorney's fees. The Morrows now appeal. Discussion and Decision I. Standard of Review At the parties' request, the trial court issued findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. When reviewing a judgment based upon findings, we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. Atterholt v. Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). We will set aside a trial court's findings of fact and judgment only if they are clearly erroneous. Id. at 639. Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them and the judgment is clearly erroneous

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if it is unsupported by the findings and conclusions thereon. Id. In assessing whether findings are clearly erroneous, we will not reweigh the evidence nor judge the credibility of the witnesses. Id. Instead, we consider the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Id. A finding or conclusion is clearly erroneous when our review of the record leaves us with a firm conviction that a mistake has been made. Id. We defer to the trial court's findings of fact, but do not defer to its conclusions as to the applicable law. Id. II. Analysis Bolstered by the trial court's conclusion that a zoning violation was not established, the Morrows claim that they did nothing illegal. Challenging some of the trial court's findings but not others, the Morrows assert that the evidence as a whole fails to support a finding that any of the conduct at issue

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