MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as May 18 2020, 9:38 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE PUTNAM
Jay Meisenhelder COUNTY COMMISSIONERS
Jay Meisenhelder Employment & Civil Trudy L. Selvia
Rights Legal Services, P.C. Greencastle, Indiana
Indianapolis, Indiana
ATTORNEY FOR APPELLEE DONALD
RICHARDS
Robert J. Nice
The Nice Law Firm
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Morrison and Sonya May 18, 2020
Morrison, Court of Appeals Case No.
Appellants/Respondents, 19A-CP-1372
Appeal from the Putnam
v. Superior Court
The Hon. Raymond M. Kirtley,
Putnam County Commissioners, Senior Judge
Appellee/Petitioner, Trial Court Cause No.
67D01-1402-PL-3
and
Donald Richards,
Appellee/Intervenor.
Court of Appeals of Indiana | Memorandum Decision 19A-CP-1372 | May 18, 2020 Page 1 of 7
Bradford, Chief Judge.
Case Summary
[1] In 2014, the Putnam County Commissioners (“the County”) petitioned for a
temporary restraining order (“the TRO”) against William and Sonya Morrison
based on violations of the County’s zoning ordinance (“the Ordinance”). The
trial court granted the County’s request for the TRO, which apparently directed
the Morrisons to remove several items from their farm (“the Property”) that
were not being used for agricultural purposes, including semi-trailers, flatbed
trailers, and debris.1 Over the next two years, the Morrisons made little
progress, and, in November of 2016, neighbor Donald Richards intervened.
[2] In February of 2017, Richards moved for preliminary and permanent
injunctions, and the County moved for a preliminary injunction. In November
of 2017, the trial court issued a permanent injunction (“the Order”) in which it
ordered the Morrisons to remove items from the Property that were there in
violation of the Ordinance. We affirmed the Order on direct appeal. In March
of 2019, the trial court found that the Morrisons had violated the terms of the
Order, found them in contempt of court, and entered a $5000.00 judgment
1
Neither the County’s TRO petition nor the TRO itself appear in the record on appeal.
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against them in favor of Richards (“the Contempt Order”). The Morrisons
contend that enforcement of the Ordinance against them violates their
constitutional rights to due process and equal protection of the law. Because
the Morrisons have waived their constitutional arguments for appellate review,
we affirm.
Facts and Procedural History
[3] The Morrisons own approximately thirty-five acres of land in Cloverdale, and
Donald Richards owns a neighboring parcel of land. On February 7, 2014, the
County petitioned for a TRO, which the trial court issued on February 10,
2014. The petition apparently included a demand that the Morrisons remove
certain things, including semi-trailers, flat-bed trailers, and debris, from the
Property, and the TRO apparently so provided. The TRO also apparently
restrained the Morrisons from moving additional trailers and debris onto the
Property. In July of 2016, the trial court found that the Morrisons were not in
compliance with the TRO and ordered them to comply. On November 21,
2016, Richards intervened in the case. On February 9, 2017, Richards moved
for a preliminary and permanent injunction, and the County moved for a
preliminary injunction.
[4] On September 12, 2017, the trial court held an evidentiary hearing. On
November 30, 2017, the trial court issued the Order, in which it found that (1)
there were items on the property not being used for agricultural purposes,
including abandoned, junked, inoperable or derelict vehicles, machinery, farm
machinery equipment and other debris, and (2) the Morrisons were operating a
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junkyard in violation of the Ordinance. Morrison v. Putnam Cty. Comm’rs, Cause
No. 18A-PL-462, slip op. at *1 (Ind. Ct. App. Sept. 21, 2018). The Order
provided that the Morrisons were to (1) remove semi-trailers, flatbed trailers,
and associated debris within thirty days; (2) remove additional tractors, trailers,
motor vehicles, backhoes, bulldozers, metal scrap, and any other associated
debris brought on to the Property since 2013 within ninety days; and (3) not
bring any further items onto the Property, except as permitted by the
Ordinance. Id. at *2.
[5] The Morrisons appealed from the Order, and we affirmed, concluding that the
judgment was supported by sufficient evidence. Id. at *3. We further
concluded that the Morrisons had waived their arguments that (1) the Property
was protected by a prior, nonconforming use; (2) the Order amounts to an
unconstitutional taking; and (3) their use of the Property was protected by the
Indiana Right to Farm Act.2 Id. at *4–5. On November 20, 2018, we issued a
memorandum decision on rehearing, in which we concluded that while the
Morrisons’ argument that the Property was protected by a prior,
nonconforming use had, in fact, been properly preserved, it was nonetheless
without merit. See Morrison v. Putnam Cty. Comm’rs, Cause No. 18A-PL-462,
slip op. at *1 (Ind. Ct. App. Nov. 20, 2018) (memorandum decision on
rehearing).
2
The Indiana Right to Farm Act, found at Indiana Code section 32-30-6-9, limits the circumstances under
which agricultural operations may be deemed a nuisance.
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[6] Meanwhile, the trial court had held compliance hearings on January 16, March
20, June 28, and September 6, 2018. On March 7, 2019, following an
inspection of the Property, the trial court issued the Contempt Order, in which
it found that the Morrisons had failed to comply with the Order despite having
reasonable time in which to do so and without good cause. Order p. 6. The
Contempt Order provided that (1) the County was authorized to enter the
Property and remove items to bring it into compliance with the Order, (2) the
Morrisons were to reimburse the County for any such remediation, (3) no
person was to interfere with remediation, and (4) a judgment of $5000.00 was
entered against the Morrisons in favor of Richards. Order pp. 6–7. On May 16,
2019, the trial court denied the Morrisons’ motion to correct error.
Discussion and Decision
[7] We begin by noting that the County did not file an appellate brief in this
matter.3 We do not develop arguments on behalf of an appellee who fails to file
a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.
2018). In such cases, we will reverse if the appellant establishes prima facie
error, meaning error at first sight or error on the face of it. Id. That said, even
3
The County has filed a notice regarding its decision to forego filing an appellate brief in this matter,
expressing its desire to rely on the brief it filed in the Morrisons’ previous appeal and its willingness to file a
brief should we request one. We decline the County’s request to rely on its brief in the previous appeal and
its invitation to determine whether it should file a brief in this one. First, the Morrisons’ previous appeal
addressed the validity of the Order and this appeal challenges the sanctions imposed on the Morrisons’ for
failing to comply with the Order, so we fail to see how briefing in the former could have relevance in the
latter. Moreover, we decline the County’s seeming invitation to assist it in formulating its litigation strategy
by deciding whether it should file an appellate brief. An appellee is, of course, under no obligation to file a
brief, but the decision whether to file should be the appellee’s and the appellee’s alone.
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in light of this relaxed standard, we still have the obligation to correctly apply
the law to the facts in the record to determine whether reversal is required. Id.
Because Richards has filed a brief, if the prima facie error doctrine is to benefit
the Morrisons, it will do so only to the extent that their arguments apply solely
to the County.
[8] The Morrisons appeal from the denial of their motion to correct alleged error in
the Contempt Order. “The standard of appellate review of trial court rulings on
motions to correct error is abuse of discretion.” Paragon Family Rest. v. Bartolini,
799 N.E.2d 1048, 1055 (Ind. 2003). Judgments of contempt are also reviewed
for an abuse of discretion. Mitchell v. Stevenson, 677 N.E.2d 551, 558–59 (Ind.
Ct. App. 1997), trans. denied. A trial court has abused its discretion when its
decision is against the logic and effect of the circumstances. Id.
[9] The Morrisons argue that the enforcement of the Ordinance in this case, up to
and including the Contempt Order, violates their constitutional rights to due
process and equal protection of the law. They argue, essentially, that they are
being unfairly singled out for punishment while others in the County with
properties in similar condition are not being punished. We need not address
these constitutional arguments on their merits, however, as they have been
waived for appellate review. As Richards points out, the Morrisons point to
nothing in the record to indicate that they raised any of these constitutional
arguments in the trial court, and our own review of the record reveals no sign
that they did. “Indiana courts have consistently held that a constitutional
question is not properly raised on appeal if the trial court was not apprised of
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specific constitutional provisions upon which a party relies in asserting that
legislation is unconstitutional.” Saloom v. Holder, 158 Ind. App. 177, 183, 304
N.E.2d 217, 221 (1973). Moreover, “[a]s a general rule, a party may not
change its theory on appeal and present arguments that are different from those
raised in the trial court.” In re Paternity of T.M.Y., 725 N.E.2d 997, 1002 (Ind.
Ct. App. 2000), trans. denied. Because the Morrisons have raised their
constitutional arguments for the first time in this appeal, we will not consider
them. See, e.g., Whizfield v. State, 699 N.E.2d 666, 669 (Ind. Ct. App. 1998)
(“However, because this argument was raised for the first time on appeal, it will
not be considered.”), trans. denied.
[10] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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