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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.

FILED
Nov 19 2009, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: DYLAN A. VIGH Law Offices of Dylan A. Vigh, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: THOMAS W. VANDER LUITGAREN BRANDI R. FOSTER Van Valer Law Firm, LLP Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA
NATHAN L. and KIMBERLY L. STEVENS, ) ) Appellants, ) ) vs. ) ) SAMUEL, JOHN and A. ELAINE MCDONALD, ) and JOHN D. and SUSAN J. GRANT ) ) Appellees. )

No. 41A01-0907-CV-324

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-0708-PL-57

November 19, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Nathan and Kimberly Stevens appeal from a grant of summary judgment in favor of their neighbors, Samuel, John, and Elaine McDonald and John and Susan Grant (collectively, the Complainants) in the Complainants action to enforce restrictive covenants. The Stevenses challenge the propriety of the grant of summary judgment as the sole issue on appeal. We affirm. The underlying facts are largely undisputed. Viewed in a light favorable to the Stevenses, the non-moving parties, the Stevenses owned and lived in a residence located on Lot 21 in Briarwood Subdivision, First Section, in Greenwood, Indiana. The McDonalds lived in a residence located on Lot 20 of Briarwood and the Grants lived on Lot 221 of Briarwood. The Grants and the McDonalds respective lots were contiguous to the Stevenses lot. The Stevenses residence consisted of a single-family dwelling with an attached garage. Sometime prior to May 3, 2007, the Stevenses commenced construction of a large detached garage on their property. On May 3, 2007, Clinton Ferguson, Director of the Department of Planning & Zoning for the City of Greenwood, sent the following letter to the Stevenses: YOU ARE HEREBY OREDRED TO STOP WORK IMMEDIATELY ON THE BUILDING UNDER CONSTRUCTION UNDER CITY OF GREENWOOD PERMIT NO. 2006-902. (1)
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On-site inspections have determined that said construction violates Greenwood Zoning Ordinance No. 82-1, as amended.

The Grants property also included a portion of Lot 21 as platted.

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The minimum side yard building setback in an R-1 zoning district is 12 feet. Field measurements place your building addition at approximately 8.4 feet from the side lot line. (2) Construction on the site does not comply with plans submitted as part of the building permit application.

YOU ARE HEREBY ORDERED TO REMOVE SAID BUILDING IN ITS ENTIRETY WITHIN 30 DAYS OF THE DATE OF THIS NOTICE. Failure to abate this violation (remove said building) will result in further legal action by the City of Greenwood. Please be aware that compliance with city ordinances and codes does not necessarily mean the building is in compliance with recorded subdivision covenants. I suggest that you review applicable covenants. Appellants' Appendix at 19. On the same day the foregoing notice was sent, the Architectural Control Committee of Briarwood Subdivision Section 1 (the ACC) was formed following a meeting with Greenwood city officials. It would appear that Director Fergusons May 3 letter did not have the desired effect. On July 20, the ACC sent the following letter to the Stevenses regarding the detached garage: This letter is being sent to you by the Architectural Control Committee (ACC) of Briarwood Subdivision Section 1. This committee was formed on May 3, 2007 during a meeting held at the Greenwood City Council Chambers with Mayor Henderson and his staff. The existence of this committee was communicated to you in the neighborhood meetings held at the Grants [sic] residence in mid May. ... We are aware that you are making various changes and/or improvements to your existing dwelling. The ACC reminds you that any material change or improvements to existing structures on your lot requires that you submit a
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request in writing to the ACC stating the details of the intended change or improvement. Homeowners are required to provide the ACC a copy of the intended plans and materials specifications that are to be used. Again, please review the Covenants and restrictions closely, specifically #2 prior to your moving forward with the re-siding project. Please note that the approval process of the ACC includes notifying contiguous property homeowners of the proposed alterations/changes. These homeowners will be requested to respond in writing of their opinions or concerns for the ACC to review your proposed changes within five days. The ACC will then come to a decision to approve or disapprove your application based on compliance of your plans with the Covenants. The Covenants are your legal obligation to follow, as they "Run with the Land" and are binding. See in particular Articles # 19, 20, and 21. Please forward your plans to the ACC on or before July 31, 2007 .... Please note that it is vital that you follow the timeline of the ACCs request. If we have not received requested information by July 31, 2007, then we will find it necessary to proceed further with any and all legal remedies afforded under the Covenants. Id. at 18. On July 30, 2007, the Complainants filed a Complaint to Enforce Restrictive Covenants and Preliminary Injunction. In it, the Complainants sought an order directing the Stevenses to remove the garage, alleging that the garage violated Paragraphs 1, 2, and 4 of Briarwoods restrictive covenants. Covenant 1 states: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling and a private garage. Garages shall be attached, and driveways shall be constructed of hard surface such as bituminous concrete or Portland cement concrete, unless otherwise approved by the architectural control committee. Id. at 23. Covenant 2 states, in relevant part: No building shall be erected, placed, or altered on any lot until the construction
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plan and specifications and a plan showing the location of the structure have been approved by the architectural control committee as to quality of workmanship and materials, harmony of existing structures, and as to location with respect to topography and finish grade elevations.... Id. Covenant 4 states, in relevant part: No building shall be located on any lot nearer to the front lot line or nearer to the side street line that the minimum building setback line shown on the recorded plat. In any event, no building shall be located on any lot nearer than 40 feet to the front lot line, or nearer than 40 feet to a side street. No building shall be located nearer than 12 feet to an interior lot line on those lots meeting R-1 area classification .... Id. It is undisputed that the Stevenses lot is zoned R-1. On October 2, 2007, the Stevenses filed a motion to dismiss the complaint. On December 6, 2007, the trial court granted in part and denied in part the motion to dismiss. The motion was granted with respect to the allegation that the garage was not harmonious to existing structures, in violation of Covenant 2, and that the driveway was gravel, in violation of Covenant 1. The motion to dismiss was denied with respect to the allegation that the garage was erected too close to an interior lot line, in violation of Covenant 4, and that the garage is an impermissible second garage, in violation of Covenant 1. We will discuss this ruling in greater detail below. On September 30, 2008, the Complainants filed a motion for summary judgment and designated materials in support thereof. In response, the Stevenses filed a Verified Notice of Defendants Intent to Stand on the Pleadings in Response to Plaintiffs Summary Judgment and Set Matter for Hearing. The parties subsequently waived a hearing and agreed that the

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trial court should decide the matter based solely on the materials submitted. On March 24, 2009, the trial court granted the Complainants motion for summary judgment and ordered the Stevenses to remove the detached garage from their property. This appeal ensued. The Stevenses appeal from a grant of summary judgment. Our standard of review in appeals from the grant or denial of a motion for summary judgment is well established: A party is entitled to summary judgment if no material facts are in dispute.... Ind. Trial Rule 56(C) ("[t]he judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"). When reviewing the propriety of a ruling on a motion for summary judgment, this Court applies the same standard as the trial court. Review is limited to those materials designated to the trial court. The Court accepts as true those facts alleged by the nonmoving party, construes the evidence in favor of the nonmoving party, and resolves all doubts against the moving party. Estate of Mintz v. Conn. Gen. Life Ins. Co., 904 N.E.2d 994, 998 (Ind. 2009) (some citations omitted). The trial courts decision on summary judgment ",,enters appellate review clothed with a presumption of validity." Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203, 211 (Ind. Ct. App. 2007) (quoting Malone v. Basey, 770 N.E.2d 846, 850 (Ind. Ct. App. 2002), trans. denied). Moreover, [a] grant of summary judgment may be affirmed upon any theory supported by the designated evidence. While the trial court here entered specific findings of fact and conclusions of law in its order granting summary judgment for the appellees, such findings and conclusions are not required and, while they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial courts reasons for granting or denying summary judgment. Van Kirk v. Miller, 869 N.E.2d 534, 539-40 (Ind. Ct. App. 2007) (citations omitted), trans.
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denied. In support of their request for summary judgment, the Complainants designated, among other things, the restrictive covenants of Briarwood Subdivision, First Section. Three of those covenants are central to this appeal

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