Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp , 2012 Ind. App. LEXIS 607 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
BRIAN M. KUBICKI JAY T. HIRSCHAUER
Jones Obenchain, LLP Hirschauer & Hirschauer
South Bend, Indiana Logansport, Indiana
FILED
Dec 06 2012, 8:49 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
CONNIE YATES, RICK YATES, )
JASON TIBBS, and PAULINE TIBBS, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 50A04-1204-CT-192
)
LEVI WAYNE KEMP, )
)
Appellee-Defendant. )
APPEAL FROM THE MARSHALL CIRCUIT COURT
The Honorable Curtis D. Palmer, Judge
Cause No. 50C01-0911-CT-28
December 6, 2012
OPINION - FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Connie Yates, Richard Yates, Jason Tibbs, and Pauline Tibbs appeal the trial
court’s grant of partial summary judgment to Levi Wayne Kemp. We reverse and
remand.
ISSUE
The Yateses and Tibbses raise one issue, which we restate as: whether the trial
court erred by granting Kemp’s motion for summary judgment as to their claims for
nuisance.
FACTS AND PROCEDURAL HISTORY
The parties are neighbors on Thorn Road in rural Marshall County. The Yateses
and Tibbses own contiguous properties on the west side of Thorn Road, and Kemp owns
land across the road from them.
In 1962, Kemp built an earthen berm at the back of his property for use as a
shooting range. At that time, there were no Marshall County ordinances, Marshall
County zoning restrictions, or statewide laws in effect governing shooting ranges. The
direction of fire at the range is oriented to the east, away from Kemp’s home, Thorn
Road, and the Yateses’ and Tibbses’ properties. Kemp expanded the range in 1968,
1985, and 2006. At the time of the 2006 expansion, Marshall County had enacted a
comprehensive zoning ordinance. In 2008, Kemp obtained the Marshall County Board of
Zoning Appeals’ approval to continue to operate the shooting range, subject to certain
conditions not at issue here. Kemp allows family and friends to use the range. In
addition, police officers from nearby departments use the shooting range for training.
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The Yateses purchased their property in 1995, and the Tibbses purchased their
property in 2006. They object to the manner in which Kemp operates his shooting range,
claiming that it hinders their enjoyment of their properties. Consequently, they filed suit
against Kemp, claiming nuisance, negligence, infliction of emotional distress, and strict
liability. Kemp filed a motion for summary judgment, and the Yateses and Tibbses filed
a response. After a hearing, the trial court granted Kemp’s motion in part and denied it in
part. Specifically, the trial court granted summary judgment to Kemp on the Yateses’
and Tibbses’ claims for nuisance and infliction of emotional distress, granted summary
judgment to Kemp as to any damage to the Yateses’ and Tibbses’ properties that were
allegedly caused by stray bullets, and dismissed Jason Tibbs as a party-plaintiff with
respect to his claim for damage to real property. The trial court denied Kemp’s motion as
to the claims of negligence and strict liability. Subsequently, at the Yateses’ and Tibbses’
request, the trial court determined that its grant of summary judgment to Kemp on the
nuisance claim was a final, appealable judgment. This appeal followed.
DISCUSSION AND DECISION
The Yateses and the Tibbses argue that the trial court erred by granting partial
summary judgment to Kemp as to their claims for nuisance. Summary judgment is
appropriate only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Ind. Trial Rule 56(C). As with a trial court, a
reviewing court construes all factual inferences in favor of the nonmoving party and
resolves all doubts as to the existence of a material issue against the moving party.
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). Where,
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as here, a trial court issues findings of fact on a motion for summary judgment, such
findings aid our review but are not binding upon us. Allen v. First Nat’l Bank of
Monterey, 845 N.E.2d 1082, 1084 (Ind. Ct. App. 2006). The interpretation of a statute is
a pure question of law and is reviewed under a de novo standard. Demming v.
Underwood, 943 N.E.2d 878, 888 (Ind. Ct. App. 2011), trans. denied.
The trial court determined that Kemp was not liable for his neighbors’ nuisance
claims due to “I.C. § 14-22-31.5-1 et seq.” Appellants’ App. p. 11. Therefore, we must
consider the principles of statutory construction. Our primary goal in applying a statute
is to ascertain and give effect to the intent of the legislature. Demming, 943 N.E.2d at
888. The language of the statute itself is the best evidence of legislative intent, and we
must give all words their plain and ordinary meaning unless otherwise indicated by
statute. Id. If a statute contains clear and unambiguous language, it is not subject to
judicial interpretation. Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct. App.
2005). In construing a statutory provision, we will assume that the legislature did not
enact a useless provision. Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind. Ct. App.
2010). Therefore, when possible, every word is to be given effect and no part of the
statute is to be construed so as to be meaningless if it can be reconciled with the rest of
the statute. Id. We view a statute within the context of an entire act, not in isolation. In
re Visitation of A.R., 723 N.E.2d 476, 479 (Ind. Ct. App. 2000).
The key statute here, Indiana Code section 14-22-31.5-6 (1996) (“section 6”),
provides a safe harbor in limited circumstances for owners, operators, and users of
shooting ranges against claims of noise pollution. It provides:
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A person who owns, operates, or uses a shooting range is not liable in any
civil or criminal matter relating to noise or noise pollution that results from
the normal operation or use of the shooting range if the shooting range
complies with a law or an ordinance that applied to the shooting range and
its operation at the time of the construction or initial operation of the
shooting range, if such a law or ordinance was in existence at the time of
the construction or initial operation of the shooting range.
Id. The parties have not cited to any prior cases applying this statute, and we have not
found any.
The Yateses and the Tibbses argue that Kemp is not entitled to the protection
granted by section 6 because there were no applicable laws or ordinances in effect at the
time he built and began operating his shooting range. Kemp responds that their argument
is “nonsensical.”1 Appellee’s Br. p. 7. The plain language of the statute supports the
Yateses’ and the Tibbses’ argument. Section 6 provides that in order for a shooting range
to be immune from liability for noise pollution, a law or ordinance governing shooting
ranges must have been in effect when the range in question was built or initially operated.
Furthermore, the law or ordinance must apply to the range, and the range must be in
compliance with the requirements of the law or ordinance. We are bound to carry out the
legislature’s intent as expressed in the plain language of the statute. In this case, there is
no dispute that there were no applicable local ordinances or state laws in effect when
Kemp built his range in 1962. If we were to hold that Kemp is entitled to the protection
afforded by section 6 even though he does not meet that statute’s conditions, we would
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Kemp also asserts that the Yateses and Tibbses have waived this argument by failing to present it to the
trial court. Based upon our review of the record, we disagree and address the argument on the merits.
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effectively nullify those conditions. We may not construe portions of a statute to be
meaningless. See Gray, 938 N.E.2d at 259.
Section 6 is part of the Indiana Range Protection Act (“the Act”), which is
codified at Indiana Code sections 14-22-31.5-1 through -7. Kemp argues that if his
shooting range is not immune from liability under section 6, then the entire Act is
“meaningless.” Appellee’s Br. p. 7. To the contrary, our application of section 6’s plain
language is logical in the context of the Act as a whole. According to a section of the
Act, “[A] local unit of government may regulate the location, use, operation, safety, and
construction of a shooting range.” Ind. Code § 14-22-31.5-5 (1996) (“section 5”). If a
shooting range is built and operated in compliance with an applicable local ordinance
after the ordinance is issued, then section 6 grants owners, operators, and users of the
shooting range the benefit of a safe harbor against lawsuits alleging excessive noise.
Another provision of the Act, Indiana Code section 14-22-31.5-7 (1996) (“section
7”), states that the owner or operator of a shooting range that existed before July 1, 1996,
may repair a building at the range as necessary to ensure public safety and the continued
use of the building, even if the building does not comply with an ordinance adopted by a
local unit of government. In addition, the owner or operator may also expand the
membership of the shooting range regardless of limits imposed by a local ordinance. Id.Thus, section 7 offers protection to preexisting shooting ranges against subsequently-
enacted ordinances in specific circumstances. Reading sections 5, 6, and 7 together, it is
clear that the General Assembly knew how to indicate that a provision applies to a
shooting range that was built before an ordinance was enacted. Thus, the Assembly
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could have extended the safe harbor provision in section 6 to all ranges, regardless of
whether they were built before or after governing ordinances took effect. However, the
Assembly chose not to take that step. As a result, based on the plain language of section
6 and its context within the Act as a whole, we conclude that Kemp is not shielded by
section 6 from liability related to his neighbors’ nuisances claim arising from noise
pollution.
Kemp argues that even if section 6 is inapplicable, he is still entitled to summary
judgment on the nuisance claims because the Yateses and Tibbses failed to establish a
dispute of material fact as to their claims. By statute, a nuisance is defined as:
[w]hatever is:
(1) injurious to health;
(2) indecent;
(3) offensive to the senses; or
(4) an obstruction to the free use of property;
so as essentially to interfere with the comfortable enjoyment of life or
property . . . .
Ind. Code § 32-30-6-6 (2002). Regarding the nature of nuisance, this Court has stated:
Nuisances may be either public or private. A public nuisance is one
which affects an entire neighborhood or community, while a private
nuisance affects only [a] single person or a determinate number of people.
The essence of a private nuisance is the use of property to the detriment of
the use and enjoyment of another’s property.
Both public and private nuisances are further subdivided into
nuisances per se, or nuisances at law, and nuisances per accidens, or
nuisances in fact. A nuisance per se, as the term implies, is that which is a
nuisance in itself, and which, therefore, cannot be so conducted or
maintained as to be lawfully carried on or permitted to exist. Thus, for
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example, a house of prostitution and an obstruction that encroaches on the
right-of-way of a public highway are nuisances per se. On the other hand,
an otherwise lawful use may become a nuisance per accidens by virtue of
the circumstances surrounding the use.
Logically, therefore, the determination that something is a nuisance
per se is a question of law for the court, and the determination of whether
that which is not in itself a nuisance is a nuisance in fact is a question for
the jury or the judge as trier of fact. The latter determination is to be made
by the trier of fact in light of all the surrounding facts and circumstances.
Wernke v. Halas, 600 N.E.2d 117, 120 (Ind. Ct. App. 1992) (citations and quotations
omitted). To recover in a nuisance action the complaining party need show only
inconvenience, annoyance, or discomfort. Lesh v. Chandler, 944 N.E.2d 942, 951 (Ind.
Ct. App. 2011). Noise may be a nuisance if it is unreasonable in its degree, and
reasonableness is a question of fact. Id.The Yateses and the Tibbses have complained that Kemp is operating his shooting
range to the detriment of their use and enjoyment of their property. Therefore, they are
alleging a private nuisance. Furthermore, given that the range received conditional
approval from the Marshall County Board of Zoning Appeals in 2008, we conclude that
the range is an otherwise lawful use that may become a nuisance per accidens depending
upon the circumstances surrounding the use. Thus, we must determine if the Yateses and
the Tibbses have established a dispute of material fact as to whether Kemp has caused
them to experience inconvenience, annoyance, or discomfort.
The Yateses and Tibbses tendered the following evidence. During some months,
Kemp’s shooting range is in use on a daily basis, occasionally in the evening. When the
police train at the range, they shoot for up to three hours. The volume of noise coming
from Kemp’s shooting range frightens the Yateses’ horses, and Connie Yates refrains
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from riding or training her horses while Kemp’s range is in use because she fears that a
loud gunshot would spook a horse, thereby endangering the rider. Furthermore, the
Yateses would like to make their horses available for use as part of a riding program for
at-risk youth, but they have not done so because Connie is concerned that Kemp’s
shooting range poses a risk to persons riding her horses. In addition, Connie does not
allow her granddaughter to play outside when Kemp’s range is in use.
The Tibbses also refrain from riding their horses while Kemp’s range is in use
because the horses become frightened. On September 19, 2008, Jason Tibbs was riding
his horse on his property when the horse was startled by shots fired at Kemp’s range,
causing the horse to rear up, which resulted in Jason falling to the ground and sustaining
injury. In addition, the volume of the noise from shooting at the range is so loud that the
Tibbses sometimes stay indoors and close their windows when the range is in use.
Furthermore, the Yateses and Tibbses have observed that Kemp uses his shooting
range at times calculated to interfere with their horse riding activities. All of this
evidence is sufficient to establish a dispute of material fact as to whether Kemp has
caused his neighbors to experience inconvenience, annoyance, or discomfort. See
Muehlman v. Keilman, 257 Ind. 100, 272 N.E.2d 591, 595-96 (Ind. 1971) (finding
sufficient evidence of nuisance where homeowners testified that their neighbor
maliciously ran the engines of his diesel trucks at all times of the day, and the noise and
fumes interfered with neighbors’ enjoyment of their home). Consequently, the trial court
erred by granting summary judgment to Kemp on the Yateses’ and Tibbses’ claims for
nuisance.
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CONCLUSION
For the reasons stated above, we reverse the judgment of the trial court and
remand for further proceedings.
Reversed and remanded.
VAIDIK, J., and CRONE, J., concur.
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