William E. Morrison and Sonya Morrison v. Putnam County Commissioners, and Donald Richards (mem. dec.) ( 2018 )

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 20 2018, 8:54 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
John J. Schwarz, II PUTNAM COUNTY
Schwarz Law Office, PC COMMISSIONERS
Hudson, Indiana Trudy L. Selvia
Greencastle, Indiana
ATTORNEYS FOR APPELLEE
INTERVENOR
Hayleigh J. Neumann
Robert J. Nice
The Nice Law Firm, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Morrison and November 20, 2018
Sonya Morrison, Court of Appeals Case No.
Appellants-Respondents, 18A-PL-462
Appeal from the Putnam Superior
v. Court
Putnam County Commissioners, The Honorable Raymond M.
Kirtley, Senior Judge
Appellees-Petitioners,
and Trial Court Cause No.
67D01-1402-PL-3
Donald Richards,
Appellee-Intervenor
Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018 Page 1 of 3
Baker, Judge.
[1] William and Sonya Morrison have filed a petition for rehearing on this Court’s
original decision in this matter. We grant it for the limited purpose of
addressing their second argument, which relates to whether the trial court
erroneously determined that they did not establish a prior non-conforming use
of the property. We initially found that the Morrisons waived this issue
because they neglected to raise it below. On rehearing, they point out that at
two points in the transcript, their attorney used the word “grandfathered,”
which they maintain is sufficient to preserve their right to make this argument.
Tr. Vol. II p. 116, 208-10. We question whether two isolated instances of the
use of this word, which occurred in the context of responding to objections
made by opposing counsel, suffice to preserve this argument. But we will give
them the benefit of the doubt and assume that they have not waived it.
[2] They argue that William’s testimony that “[t]he majority of the items out there
predate the ’92 zoning laws” is enough to sustain their burden of showing a
prior non-conforming use. Id. at 103. The trial court had the benefit of in-
person observation of this bench trial. It was for the trial court, rather than this
Court, to assess the credibility of the witnesses before it. We will not second-
guess the trial court’s implicit determination that William’s testimony on this
issue was not credible. Aside from this brief sentence, there is no other
evidence in the record supporting the Morrisons’ assertion that the complained-
of items on their property predated the relevant ordinances. Therefore, we
decline to reverse for this reason.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018 Page 2 of 3
[3] In all other respects, we deny the petition for rehearing, and our original
decision affirming the trial court’s order remains.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A-PL-462 | November 20, 2018 Page 3 of 3