Keith Allison v. Jon Roock

IN THE

Court of Appeals of Indiana Keith Allison and Joan Allison, FILED Jun 21 2024, 8:50 am Appellants-Plaintiffs CLERK Indiana Supreme Court Court of Appeals and Tax Court v.

Jon Roock, Appellee-Defendant

June 21, 2024 Court of Appeals Case No. 23A-PL-3057 Appeal from the Bartholomew Superior Court The Honorable James D. Worton, Judge Trial Court Cause No. 03D01-2302-PL-886

Opinion by Judge Mathias Judges Vaidik and Kenworthy concur.

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Mathias, Judge. [1] Keith and Joan Allison appeal the trial court’s entry of summary judgment for

Jon Roock and the court’s denial of their motion for summary judgment. The

Allisons present four issues for our review, which we restate as the following

three issues:

1. Whether amendments to the restrictive covenants here can be effective immediately or only in ten-year intervals.

2. Whether the restrictive covenants applied to Roock’s lot.

3. Whether a genuine issue of material fact precludes the entry of summary judgment for either party.

[2] We affirm the trial court’s denial of the Allisons’ motion for summary

judgment, reverse the trial court’s grant of Roock’s motion for summary

judgment, and remand for further proceedings consistent with this opinion.

Facts and Procedural History [3] In April 1969, four individuals established the Second Tamerix Lake Addition

as a residential development in Bartholomew County. In doing so, they

recorded Restrictions and Covenants applicable to all the lots within the

Addition. Those Restrictions and Covenants included the following: “Each lot

owner shall be responsible for maintaining his property in a well kept condition

and for cutting weeds and brush, if any, at least twice yearly during the period

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of May to October, whether or not a dwelling shall exist on said lot.”

Appellants’ App. Vol. 3, p. 144. [4] The Restrictions and Covenants further provided as follows:

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty years from the date this plat is recorded, after which time said covenants shall be automatically extended to successive periods of ten years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change the said covenants in whole or in part.

Id. at 146. [5] In January 2019, a majority of the lot owners in the Addition agreed that

certain Privileges and Restrictions “be added . . . to the end of the ‘Restrictions

and Covenants’” applicable to all lot owners. Id. at 227. Those Privileges and

Restrictions identified certain lots as “Lake Lots” and required the owners of

the Lake Lots to be members of the Tamerix Lake Lot Owners Association.

Membership in the Association, in turn, was accompanied by additional

assessments and privileges. [6] The Allisons are the owners of lot 16/16B in the Addition, which is a Lake Lot.

Roock owns lot 11, which is the lot across the street from the Allisons’ lot and

is not a Lake Lot. According to the Allisons, “[s]ince moving into his home” in

2021, Roock has “fail[ed] to cut weeds and brush at least twice yearly between

May and October;” he has “fail[ed] to maintain his lot in a ‘well kept’

condition;” and he has “[p]ermitt[ed] weeds, brush, and refuse to become Court of Appeals of Indiana | Opinion 23A-PL-3057 | June 21, 2024 Page 3 of 11

overgrown” and to accumulate, which has blocked traffic lines-of-sight and

enabled “vermin” to gather. Id. at 129. [7] In February 2023, the Allisons filed their complaint for injunctive relief against

Roock in which the Allisons sought to enforce the restrictive covenant

pertaining to the maintenance of weeds and brush. In response, Roock filed a

counterclaim and alleged the Allisons were engaging in vexatious litigation and

abuse of process. [8] In March, shortly after the Allisons had filed their complaint, a majority of the

lot owners in the Addition agreed to amend the original Restrictions and

Covenants “by removing” the restrictive covenant pertaining to the

maintenance of weeds and brush. Id. at 191. The remainder of the Restrictions

and Covenants were to “remain in effect as written.” Id. [9] Thereafter, Roock moved for summary judgment, and the Allisons filed a cross-

motion for summary judgment. After a consolidated hearing, the trial court

granted Roock’s motion for summary judgment and denied the Allisons’

motion. In its order, the court found and concluded that, because Roock’s lot

was not a Lake Lot, the Restrictions and Covenants did not apply to him.

Appellants’ App. Vol. 2, p. 10. The court also found and concluded that the

Allisons’ claims were rendered moot by the March 2023 amendment to the

Restrictions and Covenants. Id. at 10-11. Finally, the court found and

concluded that the Allisons’ continued prosecution of their complaint after the

March 2023 amendment was vexatious, frivolous, unreasonable, groundless,

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and an abuse of process. Id. at 11-12. The court then ordered the Allisons to pay

$9,775 to Roock for his defense of “this frivolous action.” Id. at 13. [10] This appeal ensued following the trial court’s additional denial of the Allisons’

motion to correct error.

Standard of Review [11] The Allisons appeal the trial court’s grant of summary judgment to Roock and

the denial of their motion for summary judgment. Our standard of review is

well settled:

When this Court reviews a grant or denial of a motion for summary judgment, we “stand in the shoes of the trial court.” Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” We will draw all reasonable inferences in favor of the non- moving party. We review summary judgment de novo.

Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1067-68 (Ind. 2022)

(citations omitted). Questions of deed interpretation present legal questions that

are particularly apt for summary judgment. See Erie Indem. Co. v. Estate of Harris,

99 N.E.3d 625, 629 (Ind. 2018). Further, that the parties have filed cross-

motions for summary judgment neither alters our standard of review nor

changes our analysis—we consider each motion separately to determine

whether the moving party is entitled to judgment as a matter of law. Id.

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1. Under the plain language of the Restrictions and Covenants, any amendments to them take effect only at defined ten-year marks. [12] We first address the parties’ arguments regarding whether the Allisons’ claims

against Roock were rendered moot by the March 2023 amendment to the

Restrictions and Covenants. In construing the Restrictions and Covenants, we

will read them as a whole to determine the grantors’ intent by the unambiguous

language they used, and presuming they intended each part to have meaning.

Underwood v. Bunger, 70 N.E.3d 338, 341-42 (Ind. 2017). [13] Here, the Restrictions and Covenants state as follows with respect to amending

them:

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty years from the date this plat is recorded, after which time said covenants shall be automatically extended to successive periods of ten years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change the said covenants in whole or in part.

Appellants’ App. Vol. 3, p. 146 (emphases added). [14] That language is clear. Following the April 1969 recording of the Restrictions

and Covenants, they became “binding” on all lot owners “for a period of thirty

years,” or until April 1999. Id. “[A]fter” that initial thirty-year period, the

Restrictions and Covenants “automatically extended to successive periods of

ten years,” to 2009, 2019, 2029, and so on. Id. However, an exception to the

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automatic ten-year extension can be had where a majority of the “then” owners

agree to an amendment that “has been” recorded. Id. [15] Thus, at each ensuing ten-year mark, the Restrictions and Covenants

“automatically extend[]” for another ten years. Id. And the opportunity for

amendments is framed around those extensions—that is, the automatic

extension will apply for the next ten-year term “unless” an instrument signed by

a majority of the “then” owners (i.e., the owners during the present ten-year

term) “has been” recorded (i.e., recorded during the present ten-year term). Id.

We therefore conclude that, if an amendment to the Restrictions and Covenants

is passed by a majority of the lot owners and duly recorded, that amendment

becomes effective only upon the conclusion of the present ten-year term and at

the turnover into the next ten-year term. [16] Further, to read the Restrictions and Covenants otherwise would render the ten-

year terms meaningless. If amendments were to be immediately effective, there

would be no need to specify that the Restrictions and Covenants automatically

extend for successive ten-year terms. In that scenario, the language would

simply read that the Restrictions and Covenants, including any amendments,

shall be binding. Of course, the Restrictions and Covenants do not say that, and

we will not read the ten-year terms out of the Restrictions and Covenants.

Court of Appeals of Indiana | Opinion 23A-PL-3057 | June 21, 2024 Page 7 of 11 [17] We also note that, while considering the above language is a matter of first

impression in Indiana,1 it (or similar language) has been reviewed in other

jurisdictions, and nearly every other jurisdiction is in accord with our reading of

it. See, e.g., Scholten v. Blackhawk Partners, 909 P.2d 393, 396-97 (Ariz. Ct. App.

1995); Mauldin v. Panella, 17 P.3d 837, 839 (Colo. App. 2000); Illini Fed. Sav. &

Loan Ass’n v. Elsah Hills Corp., 445 N.E.2d 1193, 1195-96 (Ill. App. Ct. 1983);

Brown v. Martin, 794 N.W.2d 857, 860-61 (Mich. Ct. App. 2010); Estates at

Desert Ridge Trails Homeowners’ Ass’n v. Vazquez, 300 P.3d 736, 746 (N.M. Ct.

App. 2013); In re Wallace’s 4th Southmoor Addition, 874 P.2d 818, 820-21 (Okla.

Civ. App. 1994). But see Hill v. Rice, 505 So.2d 382, 384 (Ala. 1987) (concluding

that similar language was ambiguous and therefore strictly construing it in favor

of the free use of land). [18] Still, Roock contends that our reading of the Restrictions and Covenants is

contrary to Indiana Code section 32-25.5-3-9 (2022), which states that a

homeowners’ association’s governing documents “must contain a provision

allowing the owners to amend the governing documents at any time” subject to

certain conditions. But Roock disregards the fact that the Restrictions and

Covenants are neither a homeowners’ association nor the governing documents

1 In his brief, Roock relies on Hamilton v. Schaefer Lake Lot Owners Association, 59 N.E.3d 1051, 1052-55 (Ind. Ct. App. 2016), to support his reading of the Restrictions and Covenants. But while the panel in Hamilton did quote similar covenant language in the facts of its opinion, at no point did that panel analyze that language or apply it to the issues on appeal. Therefore, Hamilton is inapposite here.

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of a homeowners’ association. We therefore are not persuaded by Roock’s

reliance on Indiana Code section 32-25.5-3-9. [19] Accordingly, the March 2023 amendment, if passed and duly recorded, 2 cannot

be effective until April 2029. The trial court therefore erred when it concluded

that the Allisons’ complaint was rendered moot by that amendment. We also

conclude that the trial court erred when it found that the Allisons had engaged

in vexatious, frivolous, or any other kind of abusive process by continuing to

prosecute their complaint after that amendment. The entry of the trial court

assessing attorney fees is therefore reversed.

2. Roock’s lot is encumbered by the Restrictions and Covenants. [20] The March 2023 amendment notwithstanding, the trial court also concluded

that Roock’s lot is not subject to the Restrictions and Covenants because it is

not a Lake Lot. In this the trial court was mistaken. The Restrictions and

Covenants apply to all lots in the Addition, including Roock’s lot. In 2019,

several lot owners in the Addition agreed to establish the Association, and

membership within the Association is defined by which lots are Lake Lots. But

membership in the Association is irrelevant to the Allisons’ complaint; either

way, the Restrictions and Covenants continued to apply to all lot owners.

2 The Allisons contend that the March 2023 amendment was not properly recorded. We need not consider that question.

Court of Appeals of Indiana | Opinion 23A-PL-3057 | June 21, 2024 Page 9 of 11 [21] The trial court therefore erred when it concluded that Roock’s lot is not subject

to the Restrictions and Covenants, in particular, the restrictive covenant

pertaining to the maintenance of weeds and brush. And insofar as the court

concluded that the Allisons had engaged in vexatious, frivolous, or any other

kind of abusive process on the theory that Roock was not subject to the

Restrictions and Covenants, that judgment is also erroneous. As Roock’s lot

was subject to the Restrictions and Covenants and the March 2023 amendment

did not immediately nullify the restrictive covenant pertaining to the

maintenance of weeds and brush, the trial court’s entry of summary judgment

for Roock is reversed.

3. A genuine issue of material fact precludes the entry of summary judgment with respect to whether Roock’s maintenance of his lot was in violation of the Restrictions and Covenants. [22] We thus turn to whether summary judgment for either party on the question of

Roock’s alleged violation of the Restrictions and Covenants is appropriate. And

we conclude that summary judgment is inappropriate. The parties have

designated competing affidavits. In one, Keith Allison stated that Roock does

not properly maintain his lot. In the other, Roock stated that he does regularly

maintain his lot. Accordingly, a genuine issue of material fact precludes the

entry of summary judgment for either party on the question of Roock’s

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compliance with the restrictive covenant pertaining to the maintenance of

weeds and brush.3

Conclusion [23] For the above-stated reasons, we affirm the trial court’s denial of the Allisons’

motion for summary judgment, we reverse the trial court’s grant of Roock’s

motion for summary judgment, and we remand for further proceedings

consistent with this opinion. [24] Affirmed in part, reversed in part, and remanded for further proceedings.

Vaidik, J., and Kenworthy, J., concur.

ATTORNEY FOR APPELLANTS Brian R. DeHem DeHem Law, LLC Noblesville, Indiana

ATTORNEYS FOR APPELLEE Tara K.C.S.M. Herlitz Jeffrey L. Beck Beck Rocker, LLC Columbus, Indiana

3 The merits of Roock’s argument on appeal that the Allisons have not demonstrated an irreparable injury for injunctive relief are substantively identical to this issue, and we do not separately address them.

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