Desire For Second Boat Lift Not Enough To Override Prior Orders
Marilyn Odendahl for www.theindianalawyer.com
The Indiana Court of Appeals swatted away an appeal of a dispute between pier owners, finding previous trial court orders resulting from more than 26 years of litigation over access to a lake clearly stated when a pier’s location can be changed.
Robert and Deborah Miller, who have property on Webster Lake in the Epworth Forest subdivision in Kosciusko County, requested the neighboring pier belonging to Gerry Lee and Patricia Ann Powell, who own property in the subdivision but not on the lake, be removed. The Millers needed the room to add a second boat lift to their dock.
The Epworth Forest Administration Committee, Inc., approved the request and the Powells responded by filing a lawsuit against the EFAC and the Millers. They argued the committee’s decision was arbitrary, capricious or unreasonable.
Kosciusko Circuit Court found for the Powells. It ruled the EFAC’s decision did not conform with the prior judgment and orders regarding the lake and that there had been no significant change in circumstances to require the removal or relocation of the Powells’ pier.
EFAC appealed, arguing the trial court misinterpreted its prior orders. The committee claimed not only did the court’s order require each pier to be placed in the center of each assignment but that the EFAC lacked the authority to order the Millers to move their pier because piers belonging to lakefront property owners were permanent.
In an opinion that included footnotes highlighting deficiencies in the briefs and exhibits submitted as part of the appeal, the Court of Appeals affirmed the trial court in Epworth Forest Administration Committee, Inc. v. Gerry Lee Powell and Patricia Ann Powell, 43A03-1610-MI-2332.
The appellate panel described the prior orders from the previous years of litigation as using “unambiguous language.†Those previous rulings did not mandate the piers be located in the center of the assignments and they viewed all the piers to be permanent regardless of whether the owners lived directly on the lake or not.
Like the trial court, the Court of Appeals found the desire for a second boat lift did not constitute a “substantial change of circumstances†that would necessitate the Powells remove their pier.
