Joseph Chapo v. Jefferson County Plan Commission ( 2023 )

FILED
Dec 07 2023, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Charles E. McFarland R. Patrick Magrath
New Castle, Kentucky Alcorn Sage Schwartz &
Magrath, LLP
Michael A. Gillenwater
Madison, Indiana
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Chapo, Sherry Chapo, December 7, 2023
and Deputy Big Shot, LLC, Court of Appeals Case No.
Appellants-Defendants, 23A-CT-467
Appeal from the Jefferson Circuit
v. Court
The Honorable Sally A.
Jefferson County McLaughlin, Judge
Plan Commission, Trial Court Cause No.
Appellee-Plaintiff 39C01-1605-CT-380
Opinion by Judge Weissmann
Judges Riley and Bradford concur.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 1 of 21
Weissmann, Judge.
[1] In 2012, Joseph and Sherry Chapo sought from the Jefferson County Board of
Zoning Appeals (BZA) a conditional use permit to sell guns and operate a
future shooting range on the Chapos’ agriculturally zoned property. The BZA
approved the sale of guns but denied the Chapos’ request to operate a range.
Rather than appealing this decision, they proceeded to operate the shooting
range through their company, Deputy Big Shot, LLC, without the necessary
permit.
[2] A decade-long court battle ensued between local zoning officials and the
Chapos and Deputy Big Shot, LLC (collectively, the Chapos). Ultimately, the
trial court entered a permanent injunction requiring the Chapos to remove the
unauthorized commercial shooting range. The court also fined the Chapos
more than $200,000, ordered them to pay the BZA’s attorney fees, and
authorized county officials to enforce its order if the Chapos did not comply
within 90 days.
[3] On appeal, the Chapos contend the trial court’s judgment is improper because
the BZA lacked authority in 2012 to deny the conditional use permit. The
Chapos also challenge the sanctions imposed by the trial court. We affirm,
concluding that the Chapos are barred from challenging the BZA’s 2012
decision that they did not appeal. We also conclude the sanctions were proper.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 2 of 21
Facts
[4] The Chapos have owned 100 acres in Deputy, Indiana, since 1991. The
property is subject to the Jefferson County Zoning Ordinance (Zoning
Ordinance).
[5] In September 2012, the Chapos applied for a conditional use permit to operate
“in the future an Indoor/Outdoor tactical and test firing range to be marketed
to professional marksmen, law enforcement and light military forces in the
region.” Appellee’s App. Vol. III, p. 243. They also sought permission to
manufacture and sell firearms on their property. While those applications were
pending, the Chapos incorporated their solely owned business as Deputy Big
Shot, LLC.
[6] Within a few months, the BZA approved the Chapos’ request to manufacture
and sell firearms but denied the conditional use permit needed to operate the
shooting range. Despite this denial, the Chapos later operated a shooting range
on the property.
[7] In April 2016, for instance, the Chapos began advertising for future tactical test
firing range events on their property. They announced the Deputy Big Shot
“Grand Opening” in April 2016 and both advertised and conducted beginner
pistol classes on their property starting in May 2016. Appellee’s App. Vol. IV,
pp. 7-8.
[8] The Chapos’ advertisements and a citizen complaint prompted the Jefferson
County Zoning Enforcement Officer (Enforcement Officer) to twice order the
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 3 of 21
couple in April 2016 to cease operating a tactical test firing range on their
property. When the Chapos failed to comply, the Jefferson County Plan
Commission (Commission) filed in May 2016 a Complaint for Injunction and
Damages alleging the Chapos were violating the Zoning Ordinance. The
Commission amended its complaint to include Deputy Big Shot, LLC, as a
defendant.
[9] The trial court in January 2017 granted a preliminary injunction barring the
Chapos from operating a shooting range on their property. The Chapos filed an
interlocutory appeal later that month. Meanwhile, the Chapos continued to
operate the shooting range, conducting a “Target Discrimination” event in
January 2017, an “Advanced Movement and Shooting Event” in February
2017, a “3 Gun Run” competition in June and July 2017, and an
“Independence Day Machine Gun Shoot” and a “Bill of Rights Woods Walk”
in July 2017. Id. at 8, 35, 37-40, 43-52, 101, 106-7, 110, 112.
[10] While that appeal was pending, the trial court in October 2017 found the
Chapos in contempt for continuing to operate the shooting range in violation of
the preliminary injunction. In May 2018, this Court affirmed the preliminary
injunction. Chapo v. Jefferson Cty. Plan Com’n, No. 39A05-1612-CT-2840, *13-14
(Ind. Ct. App. 2018) (mem.), reh. denied, trans. denied.
[11] The Chapos later moved under Indiana Trial Rule 60(B) for relief from the
preliminary injunction and contempt findings. The motion alleged those rulings
were void because the Commission lacked standing to bring the suit. The
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 4 of 21
motion also alleged the Commission’s members had not filed oaths as
statutorily required and that their offices therefore were considered vacant. The
trial court denied the 60(B) motion, and the Chapos appealed again. This Court
affirmed. Chapo v. Jefferson Cty. Plan Com’n, 164 N.E.3d 131 (Ind. Ct. App.
2021), reh. denied, trans. denied, cert. denied, 142 S.Ct. 429 (2021).
[12] Meanwhile, the Chapos had moved for summary judgment in the trial court,
which, instead, granted summary judgment to the Commission. Finding the
Chapos had violated a lawful zoning ordinance by initiating and operating the
shooting range on their property, the court ordered:
The Chapos are hereby enjoined from further violation of the
Jefferson County Zoning Ordinance and are permanently
enjoined from operating a shooting range/tactical and test firing
range at the property and shall not allow any other individual or
entity to operate a shooting range/tactical and test firing range at
the property . . . .
The Chapos shall remedy and abate all violations of the Jefferson
County Zoning Ordinance occurring on the property within
ninety (90) days of this Order by demolishing and/or destroying
any and all buildings, facilities or improvements of land
associated with the shooting range/tactical and test firing range
at the property and/or the allowance of any other individual or
entity to operate a shooting range/tactical and test firing range at
the property.
If the Chapos fail to remedy and abate all violations of the
Jefferson County Zoning Ordinance occurring on the property
within ninety (90) days of this Order, the [Commission] or any
other entity or third party designated by Jefferson County[] is
authorized to enter upon the property to remedy and abate the
violations . . . .
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 5 of 21
The [Chapos] are fined the sum of $209,625.00, which is 15% of
the $1,397,500.00 potential fine that could be imposed . . . .
In addition, the Plaintiff[s] are awarded costs which include
$27,490.78 in attorney fees . . . plus court costs . . . .
Appellants’ App. Vol. II, pp. 44-45. The Chapos appeal that judgment.1
Discussion and Decision
[13] The Chapos raise a number of often overlapping issues, which we restate as:
I. Whether the Chapos are barred from challenging the
Commission’s denial of the conditional use permit in
2012.
II. Whether the trial court erred in: (1) ordering that county
officials could enter the Chapos’ property to remedy the
ordinance violations; (2) fining the Chapos $209,625; and
(3) requiring the Chapos to pay the Commission’s attorney
fees of $27,490.78.
[14] When reviewing a trial court’s entry of summary judgment, we apply the same
standard as the trial court. Johnson v. Harris, 176 N.E.3d 252, 255 (Ind. Ct. App.
2021). The moving party bears the burden of showing that there are no genuine
issues of material fact and it is entitled to judgment as a matter of law. Fox v.
Barker, 170 N.E.3d 662, 665 (Ind. Ct. App. 2021). Summary judgment is
1
We note that Appellants’ Brief contains numerous legal and factual assertions that lack supporting citations
to authority or to the record on appeal. Although a party may waive appellate claims based on such
omissions, see Holland v. Trs. of Ind. Univ., 171 684, 688 n.3 (Ind. Ct. App. 2021), reh. denied, we have been
able to discern most of the Chapos’ appellate arguments and therefore address them. See In re D.J., 68 N.E.3d
574, 580 (Ind. 2017) (noting the preference for deciding cases on their merits).
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 6 of 21
improper if the moving party fails to meet that burden or, if it does, the
nonmoving party establishes a genuine issue of material fact. Id. We construe
all factual inferences for the nonmoving party and all doubts as to the existence
of a material fact against the moving party. Id. at 656-66.
I. The Board of Zoning Appeals’ 2012 Decision is not Void
[15] The Chapos’ various attacks on the permanent injunction rest on one common
proposition: that the BZA’s 2012 decision denying their application for a
conditional use permit was invalid. The Chapos contend their failure to appeal
that decision does not prevent them from challenging it here.
[16] An appeal taken under Indiana Code § 36-7-4-1600 to -1699 “establishes the
exclusive means for judicial review of zoning decisions . . . made by a board of
zoning appeals.” Ind. Code § 36-7-4-1601. Indiana Code § 36-7-4-1604 provides
that “[a] person who fails to timely object to a zoning decision . . . within the
period prescribed . . . waives the person’s right to judicial review under this
chapter.” Thus, a party’s failure to appeal a zoning decision normally prevents
that party from later challenging it.
[17] But the Chapos claim these statutes do not preclude their collateral attack
because the BZA’s 2012 decision is void. “A collateral attack is ‘a judicial
proceeding pursued to avoid, defeat, evade or deny the validity and effect of a
valid judgment or decree.’” Earl v. State Farm Mut. Auto. Ins., 91 N.E.3d 1066,
1071-72 (Ind. Ct. App. 2018) (quoting In re Chapman, 466 N.E.2d 777, 780 (Ind.
Ct. App. 1984)).
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 7 of 21
[18] In arguing that the BZA’s 2012 decision is void and subject to collateral attack,
the Chapos correctly observe that “the ‘powers of the BZA are strictly limited to
those granted by its authorizing statute.’” Mies v. Steuben Cty. Bd. of Zoning
Appeals, 970 N.E.2d 251, 258 (Ind. Ct. App. 2012) (citing Schlehuser v. City of
Seymour, 674 N.E.2d 1009, 1014 (Ind. Ct. App. 1996)). Any action by the BZA
that exceeds those powers is ultra vires and void. Id. As the Chapos emphasize,
“[a] void action is subject to collateral attack at any time.” Id.[19] The Chapos’ claim that the BZA’s decision was ultra vires is two-pronged.
First, they assert the Indiana Shooting Range Protection Act (ISRPA)
prohibited the BZA’s denial of the conditional use permit. Second, they argue
that the BZA lacked legal authority to deny the conditional use permit because:
(1) the Zoning Ordinance did not limit shooting ranges; (2) given the lack of
any zoning limitations, the BZA therefore violated the Second Amendment to
the United States Constitution by requiring the Chapos to obtain a conditional
use permit before operating the shooting range; and (3) the BZA and
Commission members failed to take their oath and were thus not members
entitled to vote on the conditional use permit.
A. Indiana Shooting Range Protection Act is Inapplicable
[20] The trial court found the ISRPA does not apply to the shooting range on the
Chapos’ property and thus did not void the BZA’s denial of the condition use
permit in 2012. On appeal, the Chapos argue that their shooting range fell
within the “safe harbor” provisions in the ISRPA applicable to shooting ranges
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 8 of 21
in operation before July 1, 1996. They also assert the ISRPA’s provision
limiting liability for noise-related actions applies here.
[21] When interpreting an ordinance, this Court “will employ the same principles as
those employed for the construction of statutes.” Wastewater One, LLC v. Floyd
Cty. Bd. of Zoning Appeals, 947 N.E.2d 1040, 1047 (Ind. Ct. App. 2011).
Statutory construction is a question of law to be determined de novo by this
Court. Id. We conclude that the Chapos have not established that the ISRPA
barred the BZA’s denial of their conditional use permit or rendered that
decision void.
1. Safe Harbor Provisions of the ISRPA do not Protect the
Chapos’ Shooting Range
[22] The ISRPA provides that “[e]xcept as specifically prohibited by this chapter and
subject to [Ind. Code § 35-47-11.1], 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. The ISRPA limits a government’s restrictions on shooting
ranges in existence before July 1, 1996. Indiana Code § 14-22-31.5-7 provides:
Notwithstanding any ordinance adopted by a local unit of
government, a shooting range that is in existence before July 1,
1996, may do the following within the geographic boundaries of
the shooting range as it existed on June 30, 1996:
(1) Repair, remodel, or reinforce a building or structure that is
needed to ensure public safety or to secure the continued use
of the building or structure.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 9 of 21
(2) Reconstruct, repair, restore, or resume the use of a
nonconforming building that has been damaged by fire,
collapse, explosion, act of nature, or war after July 1, 1996.
However, the reconstruction, repair, or restoration must be
completed not more than one (1) year after the date of the
damage to the building or the settlement of the property
damage claim . . .
(3) Expand or increase the membership of the shooting range or
opportunities for public participation at the shooting range.
[23] The trial court determined the ISRPA “is not a defense to this action and does
not provide an opportunity to collaterally attack the [2012] decision of the
[BZA].” Appellant’s App. Vol. II, p. 30. It found the Chapos’ commercial
shooting range was developed between 2012 and 2016 and therefore fell outside
the ISRPA’s safe harbor provisions that apply to shooting ranges existing before
July 1, 1996.
[24] We find unavailing the Chapos’ contention on appeal that the ISRPA’s safe
harbor provisions protect their commercial shooting range as an expansion of
their personal shooting range. First, the Chapos do not show that their personal
shooting range was a “shooting range” within the meaning of the ISRPA. The
ISRPA defines a “shooting range” as “an area designed and operated for the use
of archery, rifles, shotguns, pistols, muskets, or similar firearms that are fired at
silhouettes, skeet, trap, paper, stillboard, or other similar targets.” Ind. Code §
14-22-31.5-3 (emphasis added).
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 10 of 21
[25] The Chapos simply assume that their personal shooting range meets this
definition. As a result, they offer no basis for finding that they “operated” a
shooting range within the meaning of the ISRPA before July 1, 1996, when the
range was limited to their personal use and not open to the public. Because the
Chapos raised the ISRPA as an affirmative defense both in their answer to the
Commission’s complaint for injunctive relief and during the summary judgment
proceedings, they bore the burden of showing the applicability of the ISRPA.
See King v. Dejanovic, 170 N.E.3d 268, 270 (Ind. Ct. App. 2021); Fox v. Barker,
170 N.E.3d 662, 665 (Ind. Ct. App. 2021). They have failed in that burden.
[26] But the Chapos’ reliance on the ISRPA fares no better even if we assume their
original personal shooting range qualified as a “shooting range” under the
ISRPA. The ISRPA’s safe harbor provisions apply only to activities “within the
geographic boundaries of the shooting range as it existed on June 30, 1996.”
Ind. Code § 14-22-31.5-7. The record contains no evidence of the geographic
boundaries of their personal shooting range as of June 30, 1996. The record
simply reflects that the Chapos created a personal shooting range at several
unspecified locations on their 100-plus acre property before 1996.
[27] Nor do the Chapos establish that their commercial shooting range first
proposed in 2012 operated within the same geographic boundaries as their
original personal shooting range on June 30, 1996. In fact, the Chapos made
clear that the commercial shooting range expanded the personal range.
Appellants’ App. Vol. II, p. 58; Appellants’ Br., p. 45 (noting that the Chapos
hosted a grand opening of the commercial shooting range after “expanding the
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 11 of 21
sho[oting] range”). The Chapos’ answer to the Commission’s complaint for
injunctive relief specifically alleged that the BZA “lacked authority to regulate
the expansion of their shooting range.” Id. at 59 (emphasis added). Deputy Big
Shot’s advertisements showed 23 firing positions for one event. Appellee’s App.
Vol. IV, p. 109.
[28] The ISRPA’s safe harbor provisions do not apply to any expansion of the
shooting range’s activities outside the June 30, 1996, geographic boundaries.
Ind. Code § 14-22-31.5-7. Even within those boundaries, the only “expansion”
authorized by the ISRPA is in “membership” to or “opportunities for public
participation” at the shooting range. Ind. Code § 14-22-31.5-7(3). The ISRPA’s
safe harbor provisions also do not authorize or protect any construction of new
“buildings” or “structures” on any post-1996 shooting range. Ind. Code § 14-22-
31.5-7(1)-(2). As the record contains no evidence that the commercial shooting
range was within the limits set by the ISRPA’s safe harbor provisions, the trial
court properly concluded those provisions did not apply.
2. The ISRPA Noise Provisions do not Apply.
[29] The Chapos next claim that the ISRPA’s protections in noise-related actions
barred the BZA’s 2012 denial of their conditional use permit application and
thus rendered that decision void. At issue is:
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 operation or use of the shooting
range if the construction and operation of the shooting range
were legal at the time of its initial construction or initial
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 12 of 21
operation, and the shooting range continues to operate in a
manner that would have been legal at the time of the inception or
initial operation.2
[30] The Chapos argue that the BZA denied their conditional use permit application
based on noise concerns. Even assuming the Chapos’ contention is correct and
that the ISRPA applies, they do not show that the BZA’s denial was a civil
matter relating to noise “that results from the operation or use of the shooting
range.”
[31] First, the Chapos’ commercial shooting range was not in operation or use at the
time of their conditional use permit application. All the concerns about noise
expressed at the BZA hearing related to the future commercial shooting range,
not the Chapos’ existing personal range. The BZA made clear that its denial of
the conditional use permit would not prohibit the Chapos from personally using
their existing shooting range.
[32] But even if the BZA’s 2012 decision qualified as the type of civil matter
governed by Indiana Code § 14-22-31.5-6, the Chapos have not shown that the
BZA’s conditional use permit denial rendered them “liable” within the meaning
of Indiana Code § 14-22-31.5-6. The BZA’s denial merely deprived the Chapos
of the opportunity to legally build and operate a commercial shooting range on
2
The version of Indiana Code § 14-22-31.5-6 (1996) in effect before July 1, 2013, referred to “normal operation
or use of the shooting range” but otherwise was identical.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 13 of 21
their property. The denial did not impose any personal liability on the Chapos
as it merely barred them from expanding their personal shooting range into a
commercial shooting range. Cf. Yates v. Kemp, 979 N.E.2d 678, 681-82 (Ind. Ct.
App. 2012) (analyzing Indiana Code § 14-22-31.5-6 in the context of a nuisance
claim brought against shooting range operator). For these reasons, we find
unpersuasive the Chapos’ claim that the ISRPA’s noise-related protections
apply.
[33] Without any showing that the ISRPA applies, we need not address the Chapos’
remaining arguments under that statute. The trial court properly rejected the
Chapos’ claim that the BZA’s 2012 decision was void based on the ISRPA.
B. BZA had Authority to Deny the Conditional Use Permit
[34] We also reject the Chapos’ claim that the BZA lacked legal authority to deny
the conditional use permit. We have already determined that the Zoning
Ordinance limited shooting ranges on agricultural land by requiring a
conditional use permit. Therefore, for the reasons already expressed, we reject
the Chapos’ initial claim that the lack of a specific zoning ordinance governing
shooting ranges deprived the BZA of the legal authority to deny them that
permit.
[35] We also find no merit in the Chapos’ remaining claims that the BZA lacked
legal authority based on the Second Amendment and on the failure of the BZA
members to take statutorily required oaths.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 14 of 21
1. The Chapos are Barred from Raising Their Second
Amendment Claim
[36] The Second Amendment specifies that “[a] well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. amend. II. The Second Amendment
applies to the states through the Fourteenth Amendment. McDonald v. City of
Chicago, Ill., 561 U.S. 742, 791 (2010).
[37] The Chapos explicitly state that they are not claiming the Zoning Ordinance
violates the Second Amendment. Appellants’ Br., p. 23. Instead, they claim
“the act of the [BZA] in treating shooting ranges as a conditional use and
thereby preventing the Chapos from exercising their Second Amendment right
is unconstitutional.” Id. But the Chapos are barred from raising this claim
because they invited the error that they allege.
[38] The Chapos applied for a conditional use permit under the “Other
Amusements” category of the Zoning Ordinance. The BZA acted on that
application at the Chapos’ request and denied them a conditional use permit.
Years later—only after they were told to shut down the unpermitted shooting
range—the Chapos reversed position and claimed for the first time that the
BZA never had jurisdiction over the shooting range and that no conditional use
permit was needed. “A party may not take advantage of an error [the party]
commits, invites, or allows to happen as a natural consequence of [the party’s]
own neglect or misconduct.” Hickey v. Hickey, 111 N.E.3d 242, 246 (Ind. Ct.
App. 2018). A party who invites the very decision that the party later alleges is
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 15 of 21
void does not raise a claim that is subject to appellate review. See Crowl v.
Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997) (ruling that a party who
stipulated to an order could not later claim the judgment was void due to lack
of statutory authority); Stolberg v. Stolberg, 538 N.E.2d 1, 5 (Ind. Ct. App. 1989)
(“Invited error is not subject to review by this court.”). Therefore, we need not
address the Chapos’ claim that the BZA’s treatment of a shooting range as a
conditional use violated the Second Amendment and thus rendered the BZA’s
2012 decision void.
2. The Chapos are Collaterally Estopped from Claiming the
BZA Decision is Void due to Untaken Oaths
[39] The Chapos also argue that the BZA lacks standing to sue because its board
members did not timely take an oath of office. The Chapos acknowledge that
they raised this issue in their Trial Rule 60(B) motion, which the trial court
denied and the Chapos then unsuccessfully appealed. Chapo, 164 N.E.3d at 135.
Yet the Chapos assert that this Court “ignored” parts of the oath-based claim in
that prior appellate decision. Appellants’ Br., p. 50. For that reason, the Chapos
maintain this Court’s earlier decision does not preclude them from renewing
their attack on the BZA’s standing on identical grounds. Id.
[40] This Court in Chapo fully addressed the oath-based claim, including directly
citing the statute that the Chapos now contend was ignored. Id. at 135. The
Chapos are barred from relitigating this issue. Holland, 171 N.E.3d at 689
(“[C]ollateral estoppel[] bars the subsequent litigation of a fact or issue that was
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 16 of 21
necessarily adjudicated in a former lawsuit if the same fact or issue is presented
in the subsequent lawsuit.”).
[41] As we have rejected all of the Chapos’ attacks on the BZA’s legal authority to
deny the condition use permit in 2012, we conclude that the Chapos have failed
to establish that the BZA’s decision was void and subject to collateral attack.
This ruling resolves the Chapos’ remaining summary judgment claims, all of
which rest on an unavailable collateral attack on the BZA’s decision.
II. The Trial Court had Discretion to Enter the Challenged
Remedy, Fine, and Attorney Fees
[42] In their final claim, the Chapos challenge the sanctions imposed by the trial
court. They first challenge the trial court’s decision to allow county officials to
enter the Chapos’ property to remedy and abate the violations if the Chapos did
not comply with the judgment. They next challenge the fine imposed and the
attorney fees awarded by the trial court.
A. The Chapos Offer No Valid Challenge to the Remedy
[43] The Chapos allege that the trial court overstepped its authority by authorizing
county officials to enter their property “to remedy and abate the violations of
the Zoning Ordinance occurring on the property” if the Chapos failed to
remedy the violations within 90 days. Appellants’ App. Vol. II, p. 44. In
support of this argument, the Chapos simply assert that there was no violation
of the ordinance and therefore any sanctions were inappropriate. But we have
already determined that the trial court properly entered the permanent
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 17 of 21
injunction based on the Chapos’ non-compliance with the Zoning Ordinance.
Accordingly, they have presented no error.
B. The Chapos Have Waived Their Eighth Amendment
Claim that the Fine was Excessive
[44] The Chapos challenge the trial court’s imposition of a cumulative fine of
$209,625 as excessive under the Eighth Amendment to the United States
Constitution. The Chapos rely on Timbs v. Indiana, 586 U.S. __, 139 S. Ct. 682,
689, 203 L.Ed.2d 11 (2019), in which the United States Supreme Court ruled
that the Eighth Amendment applied to the states through the Fourteenth
Amendment to the United States Constitution. On remand, the Indiana
Supreme Court affirmed the trial court’s determination that the forfeiture of
Timbs’s $35,000 vehicle, which was involved in two drug buys totaling less than
$400, was an excessive fine under the Eighth Amendment. State v. Timbs, 169
N.E.3d 361, 376-77 (Ind. 2021).
[45] The trial court’s order shows that the maximum statutory fine was nearly $1.4
million for the 559 days that the Chapos flouted the administrative and court
orders to cease operating the shooting range. See Ind. Code § 36-1-3-8(a)(10)(B)
(limiting governmental fines for ordinance violations to $2,500 for the first
occurrence and $7,500 for a second or subsequent occurrence). The court’s fine
of $209,625 amounted to 15% of the maximum statutory fine.
[46] The Chapos assume, without any supporting citations to the record, that the
trial court did not consider the Timbs decisions when imposing that fine. But a
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 18 of 21
“trial court is presumed to know the law and apply it correctly.” Holtzleiter v.
Holtzleiter, 944 N.E.2d 502, 506 (Ind. Ct. App. 2011). In any case, the Chapos
do not even explain how the trial court’s order violates the Timbs decisions. The
Chapos also do not reveal why the $209,625 fine is excessive under the Eighth
Amendment or, specifically, the Timbs decisions.
[47] We will not transform into a party’s advocate and fashion arguments on their
behalf. Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023). Nor will we address
arguments that are too poorly developed to be understood. Id. The Chapos have
therefore waived this claim. See id.; Ind. Appellate Rule 46(A)(8)(a) (“The
argument [in the Appellants’ Brief] must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning” and by
“citations to the authorities, statutes, and the Appendix or parts of the Record
on Appeal relied on”).
C. The Trial Court had Discretion to Award the $27,490.78
in Attorney Fees
[48] Finally, the Chapos contend the trial court erroneously ordered them to pay the
Commission’s attorney fees of $27,490.78. We review the trial court’s award of
attorney fees for an abuse of discretion. Minser v. DeKalb Cty. Plan Comm’n, 170
N.E.3d 1093, 1102 (Ind. Ct. App. 2021). “An abuse of discretion occurs when
the court’s decision either clearly contravenes the logic and effect of the facts
and circumstances or misinterprets the law.” River Ridge Dev. Auth. V. Outfront
Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020).
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 19 of 21
[49] The Commission sought attorney fees generally in its complaint. At the
sanctions hearing, the Commission argued that attorney fees were appropriate
because the Chapos pursued frivolous claims throughout the litigation and
thereby increased the length and expense of the litigation. Although the trial
court otherwise entered detailed findings, its ruling on attorney fees was brief:
[The Commission is] awarded costs which include $27,490.78 in
attorney fees as verified by Plaintiff’s affidavit of attorney fees
submitted as Plaintiff’s “Exhibit 1” plus court costs.
Appellants’ App. Vol. II, p. 45.
[50] Indiana courts generally follow the “American Rule,” which calls for each party
to a lawsuit to bear its own legal fees. River Ridge Dev. Auth., 146 N.E.3d at 912.
But exceptions to this rule exist. A trial court may award attorney fees
authorized by statute. Id. For instance, Indiana Code § 34-52-1-1 authorizes an
attorney fees award to the prevailing party in any civil action if the court finds
that the other party: “(1) brought the action or defense on a claim or defense
that is frivolous, unreasonable, or groundless; (2) continued to litigate the action
or defense after the party’s claim or defense clearly became frivolous,
unreasonable, or groundless; or (3) litigated the action in bad faith.”
[51] The Chapos note the trial court did not enter the findings required by Indiana
Code § 34-51-1-1. But the trial court need not have done so because it appears
to have awarded attorney fees on a different basis.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 20 of 21
[52] The Zoning Ordinance specifies that Jefferson County may take legal action “to
prevent or remedy any violations” of the Ordinance’s terms. Appellee’s App.
Vol. II, p. 100. The Zoning Ordinance further provides that “[a]ll costs
connected therewith shall accrue to the person or persons responsible” for the
violation. Id. In addition, Indiana Code § 36-7-4-1014(f) provides that when the
Commission succeeds in an enforcement action in court, “the respondent shall
bear the costs of the action.”
[53] The trial court appears to have relied on the “costs” provisions of the Zoning
Ordinance and Indiana Code § 36-7-4-1014(f) when it “awarded [to the
Commission] costs which include $27,490.78 in attorney fees.” Appellants’
App. Vol. II, p. 45. The trial court did not abuse its discretion.
[54] We affirm the trial court’s judgment.
Riley, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 23A-CT-467 | December 7, 2023 Page 21 of 21