OPINION
Case Summary
Dаvid - and Nichelle Gertz (the "Gertzes") appeal the trial court's denial of their petition to modify a judgment requiring them to remove a "spite fence" near the property line between their propеrty and the property of Douglas and Susan Estes (the "Esteses"). We affirm.
Issues
The Gertzes raise one issue, which we restate as whether the trial court erred by requiring them to completely remove a "spite fencе." The Esteses argue that they are entitled to appellate attorney fees under Indiana Appellate Rule 66(E).
Facts
This is the second appeal in a dispute between the Gertzes and the Esteses, neighbоrs in rural Hebron. See Gertz v. Estes,
The Gertzes received a permit to construct a fence seven feet tall, but instead they erected a 720-foot long, eight-foot tall wooden fence, running parallel to and eight inches away from the property line. All along the three supporting horizontal slats, nail points protruded from the side of the fence facing the Esteses' property. The nails extended between a quarter- and a half-inch from the fence. As a result, "thousands of protruding nails" faced the Esteses' property. Gertz
On September 18, 2005, the Esteses filed a complaint, alleging that the fence violatеd the Indiana "spite fence" statute, Indiana Code Section 82-26-10-1 to -2, and that the Gertzes' use of the cameras and public address system were a nuisance. Id. at 619. After a bench trial, the trial court found that the "fence was maliciously erected and now maintained for the purpose of annoying the Estes family" based upon the "course of conduct exhibited by Gertze [sic] toward Estes." App. p. 18. The court concluded that the "fence is,
On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. On September 22, 2008, the Gertzes filed a petition fоr modification of judgment. They requested that the trial court allow them to remove the top one foot of the fence rather than the entire fence. At a hearing on the matter, the Gertzes testified that they had already removed the top two feet of the fence and that the fence was no longer a "spite fence." The Esteses testified that the Gertzes had continued to harass them.
The trial court found that "cutting one (1) foot off of the top of the fence does not comply with this Court's Order as the height of the fence was only one component of the reasoning contained in the prior Order in rеaching the determination that the fence was a 'spite fence.'" App. p. 15. The trial court concluded that the "fence is, and remains, a nuisance." Id. The trial court, thus, ordered the Gertzes to removе the fence.
Analysis
I. Gertzes' Arguments
The Gertzes argue that the trial court erred by ordering them to remove the fence despite the fact that the top portion of the fence has been removed. We disturb a trial cоurt's findings and judgment only when they are clearly erroneous. Nichols v. Minnick,
The Gertzes contend that the trial court erred by finding that they removed one foot off of the top of the fence rather than two feеt. The parties each testified at the hearing that the Gertzes had removed two feet from the top of the fence, resulting in a fence that is six feet tall. The trial court erroneously found that the Gertzes had cut one foot off of the top of the fence. Even though this finding is clearly erroneous, we conclude that the error is harmless.
Because the fence is now six feet tall, the Gertzes argue that it no longer qualifies as a "spite fence" and that they should not be required to remove it. Indiana Code Section 32-26-10-1, which governs
The Gertzes' argument fails. Their рetition for modification of the judgment is, in effect, a motion for relief from judgment under Indiana Trial Rule 60(B). A motion for relief from judgment under Indiana Trial Rule 60(B) may not be used as a substitute for a direct appeal. Goldsmith v. Jones,
The Gertzes filed a direct appeal of the trial сourt's order requiring them to remove the fence. Although the trial court's remedy of removal of the fence was an issue available to them, they did not raise any argument regarding the trial court's remedy. Further, the triаl court's order that they remove the fence was not based solely upon the height of the fence. The Gertzes have failed to show that they are entitled to the extraordinary remedy of modification of the trial court's judgment. See, e.g., Dillard v. Dillard,
JIL. Esteses' Arguments
The Esteses argue that they are entitled to appellate attorney fees under Indiana Appellate Rule 66(E), which provides: "The Court may assess damagеs if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees. The Court shall remand the case for execution." An аward of appellate attorney fees "is discretionary and may be ordered when an appeal is replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Trоst-Steffen v. Steffen,
According to the Esteses, the Gertzes' appeal is nothing morе than a collateral attack on the trial court's judgment, the Gertzes' brief is replete with misrepresentations, and "[this baseless appeal is a continuation of a well-established pattern of harаssment." Appellee's Br. p. 10. Although we acknowledge that the Gertzes' brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were "utterly dеvoid of all plausibility" or were "written in a manner calculated to require the maximum expenditure of time both by the opposing party and the
Despite our denial of the Estesesg' request for attorney fees, we caution the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, inсluding but not limited to an award of attorney fees. We encourage the Gertzes to fully comply with the trial court's order and protective orders.
Conclusion
The trial court did not err by refusing to modify the original judgment or by again оrdering the Gertzes to remove the fence, regardless of its decreased height. Further, we deny the Esteses' request for an award of appellate attorney fees. We affirm.
Affirmed.
Notes
. The trial court also entеred protective orders again preventing the families from harassing, contacting, or annoying each other and preventing Douglas Estes from parking his semi tractor in the circle portion of his driveway while the vehicle is running.