*1 changed parental rights have been any evidence of conditions. S.E. Mother's count terminated for two of her four other chil- Doe, at 194. The trial court 669 N.E.2d dren and she has no right visitation with parent's pattern of also evaluate must Moreover, a third. R. at 81-2. as with whether there is a conduct to determine case, Mother either or S.E.'s refused probability neglect of future substantial complying with court-or- unsuccessful making its deter deprivation. Id. When prior dered OFC services to the other two mination, reasonably trial court can terminations. by the services offered the OFC consider readily While it that the trial parent's response apparent is parent to the A.A.C., court considered Mother's fitness for the 682 N.E.2d those services. In re care of S.E. at the time of the termination (Ind.Ct.App.1997). hearing, it is likewise clear that the trial the trial court erro- Mother asserts that gave weight court more to the abundant present- she neously disregarded evidence regarding pattern evidence Mother's of changed has her life ed to demonstrate she neglecting during conduct in her children accommodate S.B.'s needs. On to better years prior hearing. the several contrary, specifically the trial court Further, findings and conclusions care- rejected considered and the evidence she fully set forth each of the other elements presented regarding positive effect of along of Indiana Code section 81-85-2-4 life. changes finding recent her its pertinent with the evidence considered three, the trial court states: number reaching the trial court in its determina- The mother has offered evidence that Consequently, tion. we find no abuse of changed she has and that her life is the trial court's discretion and decline different now. She has offered evidence reweigh Mother's invitation to the evi- home, husband, dence. she now has However, and a stable environment. Affirmed. all changes these occurred after the ter- filed, BAKER, JJ., proceedings mination were BAILEY and concur. only in their nature. recent changed evidence of mother's conditions light
is considered this Court in of parenting history,
the mother's both of children,
this child and her other probability repetition of a of MACKIEWICZ, Appellant- David Plaintiff, history. presence Without of a calm, free, stress structured environ- v. expectations, ment with clear the evi- METZGER, Lakes, William Lost dence fails to indicate that the mother Wilcoin, Inc., Group, Inc., War can in a raise this child safe environment Commission, rick Area Plan that is in best interest. his Appellees-Defendants. R. at 83. No. 82A01-0003-CV-70. addition, the trial court found that Appeals Court Indiana. S.E. was removed from Mother for at least 6, 2001. months, pursuant six to a dispositional de- June cree effective January 1998. Mother
failed comply requirements dispositional regarding decree
course, filed parties several appeals motions. Mackiewiez - partial denial of his second motion for the. *3 summary judgment, grant- as well as the ing summary judgment of motions filed on Developers behalf of and the Plan Com- mission, respectively. Upon appeal, Mack- presents following iewiez restated is- sues for review: 1. Did the trial court in granting err summary judgment in favor of De- velopers?
2. Did in granting the trial court err in favor of the Plan Commission?
3. Did the trial court err in denying summary judgment Faulkner, Evansville, IN, Robert R. At- motion? torney Appellant. for affirm. We Miller, Burkart, David V. Robert L. undisputed The in facts are that Shoulders, Stayman Ziemer Weitzel & Jerry Aigner agreed James Harris and to LLP, Evansville, IN, Martin, C. Richard Wileoin, company form a called Inc. for the Martin, Boonville, IN, Attorneys Martin & purpose launching a real estate venture. Appellees. Aigner negotiated Harris and with Pea- body Development, Land Inc. and eventu- OPINION ally agreed purchase approximately FRIEDLANDER, Judge. undeveloped, 2000 acres of unplatted land David Mackiewiez purchased a lakefront County, Warrick A portion Indiana. shortly lot in what platted thereafter was in question the land strip-mined, had been subsequent as a subdivision. A plat for an which resulted in the creation of a series of adjoining subdivision called for stripper pit the cre- lakes. Some of those lakes roadway by ation of a constructing a levee were By interconnected. the time of the point across the lake at a purchase, near Mackiew- Aigner had ceased his involve- property, thereby iecz's restricting Mack- inment the venture with Harris. Thereaf- ter, ability easily iewiez's access a significant incorporated Harris Wileoin and com- portion of the lake. In a pleted lawsuit filed purchase of the real estate. Eventually, large parcel against Lakes, Inc., Wileoin's of land Metzger, William Lost (unless Wileoin, Inc., oth- was divided into parcels. smaller Within Lake Inc. indicated, erwise collectively hereinafter parcels those smaller are located certain "Developers"), referred to as parcels and the War- of real ap- estate relevant to this (the rick Plan Area peal. Commission Those parcels of real are estate Commission), Plan (Wileoin Mackiewiez thereafter Exempt Paradise Lakes Division sought monetary damages injune- Division), and an Exempt the Paradise Lakes tion future might actions that fur- Subdivision, Land, the Lake Group ther restrict his access to the lake. In due Group Exempt Division. shape, with two of the sides angular in the serving was east-west, respec- running north-south and He in- Navy Virginia. United States triangle tively, hypotenuse while the to Indiana when his return home tended to ended, generally ran from northeast to southwest. inter- Navy so he was with the tour property line that we refer to herein real estate on which in purchasing ested generally formed hypotenuse as the was aware that a house. He became build lake, which portion stripper pit in the to auction lots going was Wileoin ran a considerable distance in each di- re- Division. After some Exempt beyond of lot 15A. rection the boundaries search, to attend parents he authorized his where, auction, on October plat The Wileoin Division *4 his a successful bid on behalf they placed 14, on December 1992. On Feb- recorded day, that same Mackiew- for tract 15A. On 83,1998, building ruary Wilcoin recorded a on his behalf docu- parents signed iecz's occupancy relating and restrictions Occupancy "Building entitled and ment through 1 26 and lots 27 77 through tracts [hereinaf- Paradise Lakes [-] Restrictions The Wil- Exempt of the Wileoin Division. as "the Restrictions"]." ter referred reveals, Exempt plat coin Division howev- Paragraph at 146. Supplemental Record er, number that there are no lots to the instant that document is central of Division, 77; Exempt the Wileoin through controversy provides: and only of tracts 1 platted, comprised as boundary of All common to the lakes 30, April tract 15A. though 20 and On may by be used all lot Paradise Lakes 1993, of the Par- plat recorded the Wileoin gasoline or tract owners. No and/or May Lakes Subdivision. On adise (H.P.) horsepower or engines, 10 diesel building recorded occu- Wileoin above, jetNo skis permitted. will be to Paradise paney restrictions relative permitted. will be Group, pur- Inc. Lakes. Lake adjoining tract owners All lot 1500 acres from Wil- approximately chased and/or responsible be for their the lakes shall land as will refer herein to that coin. We of the lake and part of maintenance Group portion Lake land. No keep lake free from debris must Paradise Exempt Division or the Lot foreign other materials. located and/or is or was ever Lakes Subdivision adjoining Moreover, must abide tract owners lake Group land. within the Lake set forth the Para- by restrictions as warranty deed which Wil- special perpetual for dise Lakes Association conveyed Group the Lake land did coin appurte- of the lake and maintenance im- to the restrictions subject that land nances thereto. Ex- of the Wileoin residents posed upon Division. empt The above Record at 148. Supplemental they that explicitly provided 27, 1996, Group, Lake September On lots lots applied only specified Group the Lake plat a for Inc. recorded Exempt in the Wileoin 1-15¢Aand 26-77 Ex- land, Group the Lake thereby forming Division). signed purchase Mackiewiez the Lake Parcel 3 of empt Division. for the lot on October agreement across was located Group Exempt Division hypo- lake that formed diagram stripper pit included a crude We have tract boundary of controversy. caution tenuse real estate in We Exempt Group Lake Parcel 4 of the and is 15A. diagram that is not scale directly of Par- south Division was located only purposes of clarification. intended Ex- Group the Lake terms, after tract 15A was tri- cel 3. Sometime very general recorded, by depriving rights him of property Plat was vested empt Division (herein- roadway process Inc. constructed without due of law. Under Count IV, levee") sought monetary damages Mackiewicz the "access after referred to as at stripper pit approxi- lake across the from the Plan the alle- Commission Parcels 3 and 4 the location where mately gation approving Group plat that the Lake intersected, the sides of the by pushing amounted to an condemnation of inverse filling it in with dirt at stripper pit V, property. his Under Count access levee was con- point. sought declaratory judgment to the ef- entirely Group Exempt on Lake tained designation fect the Lake and did not encroach Division land Group exempt Subdivision as an subdivi- any prop- property other an designation, sion was erroneous within the Wileoin erty located recording of the subdivision was a levee, which was lo- Division. The access nullity, and that the subdivision is not ex- cated 500 feet south of approximately from empt the Warrick Subdivi- 15A, tract blocked southern border Finally, sion Control Ordinance. under por- to a considerable Mackiewiez's access VI, sought damages Count Mackiewies stripper pit system. tion of the lake *5 from Wileoin upon alleged based Wileoin's 31, 1997, Mackiewiez filed a On March steps failure to "take affirmative to enforce Complaint Injunctive for six-count Verified building occupancy the for Relief, Declaratory Judgment and Dam- Lakes", 63, upon Paradise Record at ages, naming as defendants the Plan Com- alleged purchase Wileoin's breach of the (an mission, Metzger officer of William agreement signed Mackiewicz. Inc.), Lakes, Group, Lost Wil- 22, 1997, May Developers On a filed coin, Inc., Group, and Lake Inc. Mackiew- motion to I dismiss Counts and II of 9, complaint April icz filed an amended on complaint. Mackiewiez's amended In an I 1997. Under Count of the amended 27, order, August the court denied complaint, sought Mackiewiez an order dismiss, the motion "but indicate[d] against Metzger and Lake Inc. en- theory reparian rights Plaintiffs [sic] interferi n g joining them from "further [was] not viable." Record at 159. On [Mackiewieg's] rights," with access Record 3, 1997, Developers November filed a mo- 38, at maintaining and from the access seeking tion summary judgment on Counts levee, upon allegation that the based I, II, complaint. and V of Mackiewiez's On recording deprived the Lake Group plat 28, 1997, December Mackiewiez filed a him property rights without valuable general summary judgment. motion for compensation process or due of law. Un- The court following denied both motions II, der sought Count from Mackiewiez hearing. Metzger Group compensatory and Lake 30, 1998, January On the Plan Commis- punitive damages, plus costs and at- sion summary judgment filed motion for fees, torney upon allegation based previous which relied sum- Metzger Group, acting and Lake with mal- mary judgment intent, by Develop- motion filed wrongfully deprived ice and Mack- ers, Phyllis Gag- iewiez as well as the affidavit of riparian rights. of his Under Count III, sought monetary damages ron, Executive Director of the Plan from pursuant the Plan to 42 Commission. The trial court denied the Commission 1988, §§ USC Plan summary 1983 and based Commission's motion for allegation judgment April August the Plan Commission had on 1998. On violated rights Mackiewiez's constitutional Developers filed their second motion
$17 partial summary judg- mo- iewiez's motion for The second summary judgment. for first, ment. substantially to the similar tion was designat- Developers in that differing only reviewing ruling on a When support of their materials ed additional motion, summary judgment apply we 12, 1998, Mackiewiez
motion. On October of review as did the trial same standard Partial Motion for Sum- filed a Renewed court: 19, 1999, January On mary Judgment. [SJummary judgment appropriate only is Developers' second mo- granted trial court shows there is no where the evidence summary judgment respect tion for of material fact and the genuine issue I, II, Mackiewiez's com- and V of Counts moving party is entitled to a Mackiewiez's motion plaint and denied law. All facts and rea- as a matter of judgment. February On partial from sonable inferences drawn those 16, 1999, findings the trial court entered facts construed in favor of the non- are January support of its and conclusions party. The review of a sum- moving rulings. mary is judgment motion limited 2, 1999, Plan March Commission On trial designated those materials summary judg- motion for filed a renewed carefully court. We must review deci- Mackiew- III and IV of ment on Counts summary judgment on motions to sions icz@'s Plan complaint. The Commission improp- parties ensure that the were not summary judgment upon the sought day in court. erly denied their liability, any, if to Mack- ground that its Fink, Tom-Wat, Inc. v. 741 N.E.2d iewiez was derivative of omitted). (Ind.2001) (citations *6 defendants, already had developer which 1. to Mackiewicz been exonerated January summary judg- 19 by virtue of the contends that the trial Mackiewiez ex- ruling. As the Plan Commission ment summary judg in granting court erred motion, of action plained in its cause "[the Developers. The funda ment in favor of Plan against Warrick Area Com- is whether an question presented mental is, allegedly basically, that its mission upon Mack- easement exists that confers wrongful enabled the wrongful conduct stripping entire right iewiez a to access the [developer] defendants." conduct of the having to take his system without pit lake at The Plan Commission con- Record 765. boat out of the water. that, the trial court had tinued because first contention is Mackiewiez's as a matter of law determined 6 language" paragraph plain that "[the were not liable to developer defendants Mack- that ensures creates an easement Mackiewiecz, then the Plan Commission stripping the entire right iewiez's to access nothing actionable "could have done a valid In order to create pit system. lake enabling" conduct allegedly easement, identify must a document of Mackiewiez's claim formed the basis certainty the easement created reasonable developers. Id. The against the defendant tenements and the dominant servient granted the Plan Commission's trial court Grochow, Tanton v. thereto. See relative summary judgment on motion for renewed (Ind.Ct.App.1999). 1010 707 N.E.2d appeals the August 1999. Mackiewiez Mackiewiez document which mo- of the granting 1 only tracts applied expressly relies by Developers tions submitted (the Exempt Wileoin Subdivi- through 26 Commission, Mack- and the denial of Plan sion) nothing in the plain language of the instru- through and lots Paradise terms, By Lakes. its own the document ments Group relative to the Lake land that does not purport anyone to burden outside would impose upon Group lots those Exempt of the Wileoin Division and Para- relating restrictions dise Lakes. The restrictions do not de- Division. composition
seribe the boundaries or
development referred to therein as "Para-
second-and
pri
-
-
Therefore,
dise Lakes."
we are unable to mary-argument
upon this issue is essen
identify
physical seope
of the right set
tially this:
if paragraph
Even
6 did not
forth of all Paradise Lake lot owners to
that,
plain
include
language
with respect to
use "all lakes common to the boundary of
land,
Lake Group
created an enforceable
Paradise Lakes." Supplemental Record at
right
easily
access the
stripper
entire
Moreover,
148.
to the extent
para-
pit
system,
lake
right
such a
exists because
graph 6 can be understood to create a
all of the
question
subdivisions in
right
unimpeded
any
access to
or all of part of a common scheme or plan.
In
stripper pit
system,
lake
it is devoid of
support
contention,
of this
explanations
descriptions
that aid in
Mills,
(Ind.
cites Corner v.
then owned developer, including a parcels. Specifically, we held that because mandatory association, homeowners which there were separate three plats, effect, "in was to maintain a common ground of two there separate [were] three developments acres through mandatory assessments that or subdivisions." Id. at Finally, we could be through collected liens on the cited with approval the rule that "where various lots. The common ground was grantor's entire tract of land is devel- placed in Section III. The document envi oped in separate sections and not as a sioned a not-for-profit corporation consist unit, single there general is no plan or ing all the lot owners to run the common scheme which permit would owners in all ground. the subdivisions to enforce cove- restrictive plat was recorded for See- nants each other." Id. tion II. plat This referred to the Recorded left, then, We are to decide which of the Declaration as a further restriction on the cases, two Kuchler, Corner or controls in property the form: "That all of the lots the instant case. We conclude that contained in the above plat any portion facts in Kuchier are more analogous to thereof shall subject be to the further con- those present case, the instant ditions as contained in an instrument enti- therefore the rule enunciated in that case tled declaration of covenants and restric- controls the Corner, outcome here. tions as recorded in miscellaneous record entire question subdivision in was recorded 50, page 41 in the office of the recorder of as single tract. question The to be Johnson County, Indiana" Id. at 299. resolved was whether restrictions encum- plat for Section III was recorded in bering some of the lots applicable May 1975. The plat third did not refer to all. It was eminently reasonable to har- the Recorded Declaration as a restriction monize the restrictions of all of the lots in on the property. the subdivision because those lots were
In April 1978, four lot owners held an parts indeed all of one discrete whole. organizational meeting in order to is, estab- That the same owner sold each lot and lish a homeowners association. days Two the part lots were of a single subdivision later, articles of incorporation were filed that was recorded as such. Those critical and corporation the was certified. In Sep- facts are present not in the instant case.
821 to legally right enforceable he had a that lots burdening the Here, restrictions specifically not mentioned not others prevent Division were Exempt in the Wileoin any way in block- upon any from imposed in the restrictions or otherwise explicitly - access, Moreover, property, seeks to the Mackiewiez from his ing his land. other against prop- pit system. lake To stripper those restrictions to enforce entire land located with- thereby of parcels owners of Mackiewies was erty extent that sub- different subdivision-a entirely in result of his primarily an a "wronged," was developed and that was division platted ensure, purchased he tract to when failure Inc., These not Wileoin. Lake 15A, such an enforce- that he had obtained Kuchler, in cireumstances, we those are more like these facts right. able Under separate devel- held that this court where in trial court did not err conclude that the a finding of support do not opments powers to equitable to invoke its refusing would scheme such as plan or general done what he could have for Mackiewiez do to in the subdivisions all of permit owners place. in the first for himself each covenants enforce restrictive court did not err summary, the trial v. Therefore, to Kuchler pursuant other. in summary judgment favor granting in Ass'n, Inc., 412 II Homeowners Mark Developers. the trial we N.E.2d conclude was holding in that there err court did not between general scheme no trial court that the Mackiewiez contends the Lake Division and in summary judgment in granting erred justify imposing Group land that would As indicat- the Plan Commission. favor of re- land restrictions Group the Lake sought the Plan Commission previously, ed proper- Exempt Division lating to Wileoin grounds summary judgment ty. dependent liability in this lawsuit its final con third and developer defen- upon the erred the trial court is that tention adjudication dants, that the and jurisdiction equitable failing to exercise its necessarily Developers meant in favor of unconscionable "an refusing prevent to and was entitled Plan Commission that the * Brief at Appellant's wrong injustice." summary judgment. invokes Mackiewiez Specifically, will not suf "[elquity maxim that equitable that, ruling upon unlike its We note Mag remedy." See wrong without fer motion, summary judgment Developers' Services, Ambulatory Renal v.
nant
findings and
not enter
court did
the trial
(Ind.Ct.App.1991).
1034
N.E.2d
summary judgment
granting
conclusions
ap
maxim does
that the
conclude
We
Neverthe
of Plan Commission.
favor
here.
ply
is the same
less,
of review
our standard
en
the trial court
whether
regardless of
previously,
have indicated
As we
v.
Grzan
and conclusions.
findings
ters
seeks
by which Mackiewiez
Indiana,
to build
Northwest
Group's right
Hosp.
assail
Charter
With or
(Ind.Ct.App.1998).
N.E.2d
vague with
levy were
maintain the access
shoes of
in the
findings, we stand
without
application,
of their
scope
respect
if
appeal
on
will affirm
court and
the trial
and ser-
identity of the dominant
any theory or
on
ruling is sustainable
Moreover,
by their own
tenements.
vient
designated material.
in the
found
which basis
terms,
they
guarantee
failed to
Id.
ie.,
enforce,
seeks herein
*10
To the extent
that Plan Commission's
the subdivision control ordinance and the
liability
dependent upon
Developers'
zoning
words,
ordinance.
In other
the ex-
liability, Developers' success on their mo-
ception to the notice and hearing require-
required
tion
the trial court grant
86-7-4-701(d)
§
ment set out in IC
ap-
Plan Commission's motion. Mackiewicez plied
and,
statute,
this case
the Plan
contends, however, that there was an inde-
Commission was not required
provide
pendent
basis of
that rendered
notice
hearing
and
prior to approving the
summary judgment
in favor of the Plan
plat.
Commission
erroneous.
_
Specifically,
Mackiewicz contends that the Plan Com-
In a separate argument, Mack-
mission violated his constitutional
pro-
due
iewiez
prior
contends that a
decision of this
rights
cess
when it failed to observe a
court refutes the Plan Commission's con
statutory
provide
mandate to
notice and an tention that
may
not enforce private
opportunity to be heard to owners of ad-
restrictions,
covenants and
thereby ren
joining property
presented
when
with a
dering summary judgment
for the Plan
plat. Mackiewiez contends that the Plan
Commission inappropriate.
Croft,
Ad
Commission's
provide
failure to
him with
Inc. v. Area Plan Comm'n
Evansville
such notice violated his
constitutional due
and Vanderburgh County,
Mackiewiez notes that zoning bodies are nants and created by statute restrictions. This say, and is not to must exercise their authority in compliance however, strict with the rel- that such an entity obligated is evant statutory provisions. He contends private enforce restrictions. This court did (West § Ind.Code Ann. 86-7-4-705 go that far in Ad Croft, and we 1997) required the Plan Commission to set decline to do so now. a public hearing at which to consider pri- mary plat approval when presented awith plat. note, however, We § that IC 36-7- Finally, Mackiewieczcontends that 4-701(d) (West 1997) provides an exception trial court erred in denying his motion for to the notice hearing requirement partial summary judgment. Mackiewicez's cases where proposed subdivision motion for partial summary judgment in- "does not involve the opening of a new cludes the same issues that present- public way ... complies in all other ed in the summary judgment respects motions of with the subdivision control ordi- Developers nance and zoning Commission, Plan ordinance." In such but cases, plat "may granted be primary opposite advocates the side of argu- those approval ments,. plat committee without Having determined that the trial public notice and hearing, subject ap- court did not err in ruling in favor of peal commission." Id. Developers and the Plan Commission on At all times relevant to this appeal, issues, those we necessarily conclude that Phyllis Gagnon was the Executive Director partial summary judgment of the Planning conjunc- Commission. motion was properly denied. tion with Planning Commission's sum- Judgment affirmed. mary judgment motion, Gagnon submitted an attesting affidavit to the fact that the RILEY, J., concurs. Lake Group Exempt Division plat did not require SULLIVAN, J., the opening of a new roadway, concurring with that it complied in all other respects with separate opinion. *11 however, so, I doing
Plan Commission. that sum out point to important believe in favor of was not entered mary SULLIVAN, concurring Judge, developer Wileoin, Inc., original opinion majority in the fully concur I to Mackiew- 15A which sold Lot entity judgment en affirms which sale, Mackiewiez to this As related icz. Lost Metzger, William in favor of common tered lakes "[alll access was afforded Lakes...."1 Paradise boundary Inc. as well Lakes, at 148. Record Supplemental Area of the Warrick in favor as Lakes." as "Paradise be devel- contemplated to was referred lakes the real estate 1. All pit stripper connected area of the oped in the *12 extent, therefore, I must neces- To this claim for
sarily conclude that Mackiewicz’s Wilcoin, Inc.
monetary damages complaint
under remains Count VI as to that
viable and the matters issue
litigation yet are as unresolved. therefore, sense, I am this unable
wholly agree majority’s conclusion was “[t]o the extent Mackiewicz
thereby a re- ‘wronged,’ primarily ensure, pur- when he his failure
sult 15A, tract that he had obtained
chased right.” an at 821. Op.
such enforceable argue
Although reasonably might one within everything
Mackiewicz did do interests, it power protect might
his his Wilcoin, be Inc. incurred
also true that protect for its failure to his access
to all lake areas. caveat, I
Subject concur. to this
MASTER COPY & REPRODUCTION
CENTER, INC., Copy Master De d/b/a
sign Center, Appellant, v. & Production INC.,
COPYRITE, Capital, Inc., Ikon Solutions,
and Ikon Office
Appellees.
No. 49A02-0008-CV-507.
Court of of Indiana. Appeals 8, 2001.
June