Saurabh Bagchi and Somali Chaterji v. Amberleigh Village Homeowners Association, Inc. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 13 2020, 10:23 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Michael Ghosh Ryan C. Munden
Carmel, Indiana Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Saurabh Bagchi and Somali March 13, 2020
Chaterji, Court of Appeals Case No.
Appellants-Defendants, 19A-PL-2070
Appeal from the Tippecanoe
v. Circuit Court
The Honorable Sean M. Persin,
Amberleigh Village Judge
Homeowners Association, Inc., Trial Court Cause No.
Appellee-Plaintiff 79C01-1801-PL-18
Altice, Judge.
Case Summary
[1] Saurabh Bagchi and Somali Chaterji (collectively, Property Owners) appeal the
trial court’s judgment in favor of the Amberleigh Village Homeowners
Association, Inc. (the HOA), ordering Property Owners to modify the fence
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they constructed around their front and back yards to comply with restrictive
covenants of the subdivision in which they live. On appeal, Property Owners
present two issues for our review, which we restate as:
1. Did the trial court err when it determined that the HOA
rejected the Property Owners’ proposed plan for installation of a
fence around their front and back yards?
2. Did the trial court err in concluding that the HOA, which
waited over three years to provide the Property Owners with
notice of the non-compliance of their fence with the restrictive
covenants, did not acquiesce in the existence of the non-
complying fence?
[2] We affirm.
Facts & Procedural History
[3] Property Owners own one parcel in the Amberleigh Village subdivision in West
Lafayette, Indiana. All parcels of land within Amberleigh Village are governed
by the Amended Declaration of Covenants, Conditions and Restrictions of
Amberleigh Village (the Covenants). The Covenants provide, in relevant part,
as follows:
Section 6.2 Architectural Control. No building, outbuilding,
mailbox, fence, satellite dish, wall or other structure, except
original construction of Dwelling Units by or on behalf of the
Declarant, shall be commenced, erected or maintained upon the
Property, nor shall any exterior addition to or change or
alteration therein, other than by the Declarant, be made until the
plans and specifications showing the nature, kind, shape,
height, materials, color and location of the same shall have
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been submitted to and approved in writing as to harmony of
external design and location in relation to surrounding structures
and topography by the Declarant until the end of the
Development Period, the Board of Directors may appoint three
(3) or more representatives to an Architectural Committee. Any
change in the appearance or color of any part of the exterior of a
residence shall be deemed a change thereto and shall require the
approval therefore as above provided. In the event that written
approval is not received as required hereunder within thirty
(30) days after complete plans and specifications have been
submitted, approval will not be required and this Section will
be deemed to be fully complied with.
Section 6.3 Fences. All fences will be similar in design to that
attached as Exhibit B, except privacy fences, walls, or screening
constructed directly adjacent to the dwellings [sic] rear patio, in
which case they shall be no greater than 6 feet in height. The
Architectural Committee shall review such request pursuant to
the standards and procedures set forth in Section 6.2. The Owner
shall maintain all fences in top quality condition, including
replacement of damaged or rotten fence posts or panels. The
[HOA] may enforce this provision by requiring either appropriate
maintenance by the Owner or removal of the fence by the
Owner. All courtyard homes must use a white vinyl decorative
fence (approved by the Architectural Committee) constructed
directly adjacent to the dwelling’s rear patio.
Exhbits at 17-18 (emphases added). Exhibit B to the Covenants provided the
following depiction:
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[4] In 2014, Property Owners contacted Steve Abston, then the president of the
HOA, and informally inquired about installation of a fence around their
property. Abston explained the specifications for installation of fences and
advised Property Owners of the procedure for obtaining approval by the HOA.
Abston also provided them with direct links to the Covenants and a request
form for architectural approval.
[5] On or about June 2, 2014, Property Owners submitted their complete plans and
specifications to the HOA outlining their intent to install an eight-foot fence
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around the front and back of their property. Property Owners desired a higher
fence for safety and security purposes.
[6] Abston was president and sole member of the HOA from 2014 through the
summer of 2017, and during his tenure he operated “as a one man show” as
there were no other board members or an architectural review committee.
Transcript Vol. 2 at 32. He thus had sole decision-making authority for the HOA
to approve architectural plans submitted for review.
[7] On June 23, 2014, Abston sent an email to Property Owners acknowledging
receipt of their submission and informing them that the Covenants did not
permit an eight-foot fence. He also requested additional time to investigate the
matter further. On July 2, 2014, the Property Owners requested an update.
Abston responded on July 7, 2014, explaining that he had reached out to two
individuals who confirmed that an eight-foot fence was not permitted and that
he was waiting to hear back from a third individual. Property Owners agreed to
wait a little longer for an answer. On July 24, 2014, Property Owners followed
up with Abston. In this communication, Property Owners stated that “[a] 5ft
next to the road is ridiculous” and that “[m]ost fences in other neighborhoods
are taller.” Exhibits at 55. Abston responded later that day, informing Property
Owners that their proposed fence did not comply with the Covenants. He
stated:
Sorry for the delayed response again. I have asked around as
many knowing people as possible, and there is nothing in our
architecture regulations that would allow the 8-ft fencing. The
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only “standard” that we have has been untouched since the HOA
was created in 2006. Right now, the HOA consists of me. So, I
am the architecture committee, as well as all other committees. . .
. I would say the best route, if you would still like to try and go
for something above 6 feet,[ 1] would be to try and get attendance
to a meeting.
***
I wish I had better news for you, right now, but this is where
we’re at. Please let me know if you would like to do anything
moving forward.
Exhibits at 55. According to Abston, his email to Property Owners was his
“nice way” of saying that their fence proposal was denied, unless or until the
plans were approved at an HOA meeting. Transcript Vol. 2 at 17. Property
Owners and Abston exchanged a few more emails that evening regarding a
possible HOA meeting in August with such being the final exchange regarding
installation of a fence on Property Owners’ lot.
[8] In August 2014, Property Owners hired a contractor to construct a wooden
fence according to their original submission to the HOA except with a fence
height of six feet rather than eight feet. The fence also was not “scalloped” on
the top as required by the Covenants. Appellants’ Appendix at 58. Property
Owners stipulate that they did not receive approval in writing prior to erecting
1
The only allowance in the Covenants for a six-foot fence was for a privacy fence, wall, or screen “directly
adjacent to the dwellings [sic] rear patio.” Exhibits at 17. Further, for “courtyard homes” in the subdivision,
which includes Property Owners’ home, fences must be constructed of a white, vinyl decorative fence.
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the fence. The contractor worked for approximately two weeks to construct the
six-foot fence around the front and back yards of the Property Owners’ lot. The
fence is pictured below.
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There was no action taken by Abston on behalf of the HOA during construction
of the fence or throughout his tenure as president of the HOA, nor were there
any documented complaints or complaints made to Abston by other residents
in the neighborhood. Abston testified that he did not know that Property
Owners installed the fence. Abston’s tenure as president of the HOA ended
during the summer of 2017, when a new president was named.
[9] On January 26, 2018, the HOA filed a complaint against Property Owners,
asserting that Property Owners violated the Covenants by installing a fence (1)
without the HOA’s written approval and (2) which was not in compliance with
the Covenants. The relief sought by the HOA was an order from the court
requiring Property Owners to remove their fence. Property Owners filed their
answer and affirmative defenses on March 26, 2018. The trial court conducted
a bench trial on January 29, 2019. Before the bench trial commenced, the
parties filed a Joint Stipulation of Facts. On June 7, 2019, the trial court
entered judgment in favor of the HOA and against the Property Owners based
upon its determination that the HOA had rejected the Property Owners’ fence
proposal. The court directed Property Owners to submit a plan to modify their
fence such that it would be acceptable to the HOA. The court further ordered
that if an agreement as to an acceptable fence could not be reached, the
Property Owners were required to remove the fence no later than June 7, 2020.
Property Owners filed a motion to correct error, which the trial court denied.
Property Owners now appeal. Additional facts will be provided as necessary.
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Discussion & Decision
[10] The trial court issued findings of fact and conclusions of law pursuant to Ind.
Trial Rule 52. Under T.R. 52(A), the clearly erroneous standard applies to
appellate review of facts determined in a bench trial with due regard given to
the opportunity of the trial court to assess witness credibility. Trinity Homes,
LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). Findings of fact are clearly
erroneous when the record lacks any reasonable inference from the evidence to
support them, and the trial court’s judgment is clearly erroneous if it is
unsupported by the findings and conclusions which rely upon those findings.
CSL Cmty. Ass'n, Inc. v. Meador, 973 N.E.2d 597, 600 (Ind. Ct. App. 2012), trans.
denied. In establishing whether the findings or judgment are clearly erroneous,
we consider only the evidence favorable to the judgment and all reasonable
inferences to be drawn therefrom. Id. We cannot reweigh the evidence or
judge the credibility of any witness and must affirm the trial court’s decision if
the record contains any supporting evidence or inferences. Id. While we defer
substantially to findings of fact, we do not do so for conclusions of law. Id. We
evaluate conclusions of law de novo and owe no deference to a trial court’s
determination of such questions. Id.
1. Rejection of Fence Proposal
[11] Property Owners argue that the evidence does not support the trial court’s
finding that the HOA rejected their fence proposal. Specifically, they argue that
because the HOA did not, in accordance with Section 6.2 of the Covenants,
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issue a written approval within thirty days after they submitted their plan, their
plan was deemed approved.
[12] A restrictive covenant is an express contract between the grantor and the
grantee that restrains the grantee’s use of his land. Villas West II of Willowridge
Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008). As this
court has before noted, “[o]ne purpose of restrictive covenants is to maintain or
enhance the value of land ‘by controlling the nature and use of lands subject to
a covenant’s provisions.’” Grandview Lot Owners Ass’n, Inc. v. Harmon, 754
N.E.2d 554, 557 (Ind. Ct. App. 2001). Although the law does not favor
restrictive covenants, the contractual nature of these restrictions has led courts
to enforce them in equity as long as the restrictions are unambiguous and do
not violate public policy. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct.
App. 1992).
[13] Per the parties’ stipulation of facts, the court noted that Property Owners
formally submitted complete plans and specifications to Abston for approval.
Although they were provided with the specifications for fences as set out in the
Covenants, Property Owners submitted a proposal for an eight-foot fence, with
a straight, not scalloped top edge, around both their front and back yards. The
proposed fence did not comply with the Covenants in any respect.
[14] On June 23, 2014, about three weeks after Property Owners submitted their
plans, Abston responded that he could not find “any allowance in the
regulations” for an eight-foot fence. Exhibits at 57. Abston asked for more time
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to investigate the matter and determine whether it would be possible to
accommodate their request for an eight-foot fence. Property Owners agreed to
give Abston more time. After Abston spoke with at least three other people, he
informed Property Owners that their fence proposal did not meet the
Covenants.
[15] This evidence demonstrates that within the allotted thirty-day period for a
response to their proposal, Abston notified Property Owners that an eight-foot
fence was not permitted under the Covenants. Thus, rather than issuing a
written approval, Abston issued a written denial of Property Owners’ fence
proposal. Property Owners granted Abston additional time to find a way
around the restrictive covenant that prohibited their proposed fence.
Ultimately, after talking with others in the neighborhood, Abston told Property
Owners that there was no way around the covenant and confirmed what he
originally communicated to them that an eight-foot fence was not allowed. 2
Based on the record, we conclude that the trial court did not err in finding that
Property Owners proposed fence plan “was not accepted by the HOA.”
Appellants’ Appendix at 13.
2
To the extent Property Owners argue that the HOA did not reject their proposed placement of the fence or
its design because they were only informed that the fence could not be eight feet in height, we disagree.
There is nothing in the Covenants that required Abston to identify every aspect of the fence that was not in
compliance therewith. Moreover, the Covenants clearly set out the specifications for fences as to placement
and design and the Property Owners’ proposed fence obviously did not comply with those specifications.
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[16] We also note that the fence ultimately constructed on Property Owners’ lot was
not the fence described in the plans that they submitted for approval. While
Property Owners claimed that they had discussions with Abston about going
ahead with the original plans except with a height of six feet, Abston did not
remember any such conversations. To credit Property Owners’ claim, we
would have to judge the credibility of the witnesses, which we will not do. See
Meador, 973 N.E.2d at 600. In any event, it remains that the plans and
specifications for the fence that was erected on Property Owners’ lot were never
formally submitted for the HOA’s approval.
2. Acquiescence
[17] Property Owners argue that the trial court erred in not finding laches, waiver, or
acquiescence by the HOA given that the HOA waited three years to confront
them about their fence and nearly four years to file suit. Property Owners assert
that the fact that Abston never noticed the fence following its installation
“seemed rather suspect.” Appellants’ Brief at 12. Indeed, during the bench trial,
the trial court questioned Abston about his claims that he did not know about
the fence and that, although he lived in the neighborhood, he had not seen it in
the three years since it was installed. Nevertheless, the trial court,
acknowledging that it was “a close call,” ultimately concluded that the HOA
did not acquiesce in Property Owners’ construction of the non-compliant fence.
Appellants’ Appendix at 13. To address Property Owners’ argument would
require that we reweigh the evidence, a task that we will not undertake upon
appeal. See Meador, 973 N.E.2d at 600.
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[18] Moreover, we note that Section 10.2 of the Covenants provides, in pertinent
part:
No delay or failure by any person to enforce any of the
restrictions or to invoke any available remedy with respect to a
violation or violations thereof shall under any circumstances be
deemed or held to be a waiver by that person of the right to do so
thereafter, or an estoppel of that person to assert any right
available to him upon the occurrence, recurrence or continuation
of any violation or violations of the restrictions.
Exhibits at 31. Nonwaiver clauses such as this are generally enforced in
Indiana. See, e.g., Johnson v. Dawson, 856 N.E.2d 769, 774 (Ind. Ct. App. 2006).
Hence, pursuant to Section 10.2, the HOA may enforce the Covenants against
Property Owners despite that it has been more than four years since they
erected the fence that does not comply with the Covenants. Property Owners
are barred from raising the equitable defenses of laches, waiver, and
acquiescence. See id. (holding that nonwaiver provision permitted enforcement
of restrictive covenant despite prior violations by other landowners).
Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
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