Precision Gun Range LLC, and Baron Creek LLC v. Jerry Wise, Kathy Wise, David Drake, and Brozia Drake, Owen County, Indiana Board of Zoning Appeals (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2020, 9:54 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Michael L. Carmin JERRY WISE, KATHY WISE,
Daniel M. Cyr DAVID DRAKE, AND BROZIA
CarminParker, PC DRAKE
Bloomington, Indiana Jonathan W. Hughes
Andrew M. McNeil
Martha A. Dean Bose McKinney & Evans LLP
Law Offices of Martha A. Dean, LLC Indianapolis, Indiana
Avon, Connecticut
ATTORNEY FOR APPELLEE
OWEN COUNTY, INDIANA
BOARD OF ZONING APPEALS
John J. Moore
Tuohy Bailey & Moore LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
Precision Gun Range LLC, and November 30, 2020
Baron Creek LLC, Court of Appeals Case No.
Appellants, 20A-PL-231
Appeal from the Owen Circuit
v. Court
The Honorable Michael D. Keele,
Jerry Wise, Kathy Wise, David Special Judge
Drake, and Brozia Drake, Trial Court Cause No.
60C02-1907-PL-304

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 1 of 18
 Owen County, Indiana Board of
Zoning Appeals,
Appellees.

Brown, Judge.

[1] Precision Gun Range LLC (“PGR”) and Baron Creek LLC (“Baron Creek”)

appeal the trial court’s January 3, 2020 order which granted a request for stay

and preliminary injunction. We affirm.

Facts and Procedural History

[2] Jerry Wise and Kathy Wise reside in Owen County, Indiana, approximately

1,119 yards due south of a rifle range operated by PGR. David Drake and

Brozia Drake reside immediately west of the Wises.

[3] In March 2015, PGR filed a Conditional Use Application through Michael

Marshall with the Owen County Board of Zoning Appeals (the “BZA”) to

“create ‘Gun Club’ – Recreational on Lots 3-6 Franklin Industrial Park II.”

Exhibits Volume I at 9. The application included a site plan with a rifle range

and a pistol range. The conditional use application was filed for the property

addresses of Lots 3, 4, 5, and 6 of the Franklin Industrial Park. At the time of

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 2 of 18
 the application, Baron Creek owned Lot 6, but it has never owned Lots 3, 4, or

5.

[4] On April 9, 2015, the BZA conducted a public hearing to consider PGR’s

conditional use application which provided for the operation of a rifle range in

a west to east shooting orientation. The minutes from the meeting indicated the

board members agreed that the request had met all conditions, regulations, and

development standards required in the zoning ordinance, approved the

conditional use request, and ordered that the gun range owners meet all safety

standards and building requirements “per the State, Local and Federal for [sic]

Firearms for both the proposed indoor and outdoor ranges and future

development.” Id. at 15.

[5] Between April 9, 2015, and September 26, 2015, PGR oriented the rifle range in

a north to south direction. It received no written authorization to do so, and

the rifle range opened on September 27, 2015, in a north to south shooting

orientation.

[6] The Wises found bullet holes in their home, shop, and trailer. The Drakes

found a bullet hole in their home’s gutter. The Wises found the first bullet hole

on November 13, 2016, and reported this discovery to the Owen County

Sheriff’s Department. Sergeant Michael Browning responded, inspected the

property, and identified two bullet holes in the exterior siding of the steel shop,

evidence of a bullet hitting concrete blocks, and a bullet hole in the side of a

racecar trailer. Jerry Wise reported the incident to PGR, and PGR by its

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 3 of 18
 representative and range-manager, Kimberly Bartlett, indicated that it was

aware of a problem with the left hand side of the range, and would fix it and

repair the damage.

[7] On or around February 6, 2017, the Wises discovered a bullet in their home.

On February 28, 2017, the Drakes discovered a bullet in their gutter and

reported the incident to the Indiana State Police, and Sergeant Christopher

Fears conducted an investigation. On March 15, 2017, Sergeant Fears met with

Bartlett at PGR. Bartlett told Sergeant Fears “that the rifle alley could possibly

be moved, and they would look into the solution. Ms. Bartlett advised . . . that

as of this date, the rifle alley would be closed indefinitely until it is fixed or

changed. She advised they would lock it down and not utilize it, at this time.”

Appellants’ Brief at 17.

[8] The rifle range was closed during the period of March 2017 until May 25, 2019,

but PGR continued to operate the pistol range during that time. When the rifle

range was closed, neither the Drakes nor the Wises had any concerns about

bullets entering or striking their properties.

[9] Although the rifle range was closed in March 2017, PGR notified the public via

a November 21, 2017 press release that it would be reopening it on December 1,

2017. On December 5, 2017, the BZA made a motion to close the rifle range

until expert findings could deem it safe, and that month it closed the rifle range.

PGR continued to operate its pistol range.

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[10] On January 11, 2018, the BZA met to discuss the conditional use. The BZA

heard various complaints, and County attorney Richard Lorenz noted that any

directional change in the range “should have been re-presented to the BZA for

approval.” Id. at 18. The BZA voted “to give PGR 15 days to develop a

presentation to demonstrate the safety of the range.” Id. All agreed that the

rifle range would not reopen “until the BZA meets again on the matter.” Id.

On February 2, 2018, the BZA met, and it “was agreed upon to maintain the

range’s closure until new safety measures are implemented and revisited.” Id.

at 19.

[11] On July 19, 2018, the BZA held a meeting where no action was taken on the

range other than to authorize its attorney to work on a letter concerning a future

closure. On September 20, 2018, the BZA held a meeting, reminded all in

attendance that “a conditional use can be revoked at any time,” discussed

hiring an outside specialist to review the safety at the range, and moved to

request funding from the County Council “to hire an independent specialist.”

Id.

[12] On October 23, 2018, the BZA met again to discuss the independent inspection.

It indicated that the County Council denied funds for the specialist and noted,

“[s]ince there was an approved motion to close [by the BZA], [the rifle range]

will remain closed until approval is given.” Id.

[13] On May 24, 2019, the BZA held a meeting to consider the rifle range and

ultimately tabled the issue “until further able to process.” Id. at 20. PGR

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 5 of 18
 unilaterally determined to reopen the rifle range on May 25, 2019. On May 26,

2019, Sergeant Browning responded to a call from Kathy Wise who reported

that the Wises had located a bullet lodged in the north side of their residence.

Sergeant Browning observed the bullet hole and recovered the bullet from the

window frame just above the bedroom window. He also identified what he

believed to be ballistic damage to the Wises’ new arbor in their back yard.

[14] On June 10, 2019, all three members of the BZA and the Owen County

planning director visited PGR and met with Bartlett. On June 18, 2019, the

BZA held a meeting, the minutes for which stated in part: “A motion to allow

PGR to operate and remain open was made by R. Wood 2nd by S. Wood.

Carried 3-0.” Exhibits Volume I at 28.

[15] On July 17, 2019, the Wises and Drakes filed a Complaint for Declaratory

Relief, Injunction, and Verified Petition for Judicial Review in the Owen

Circuit Court against the BZA, PGR, Baron Creek, and Marshall under cause

number 60C02-1907-PL-304. Under Count I, “Declaratory and Injunctive

Relief – Violation of Existing Variance,” they requested that the court enter: a

declaratory judgment that Defendants, PGR, Baron Creek, and/or Marshall are

in violation of the Conditional Use Variance and Zoning Ordinance; a

preliminary injunction prohibiting PGR, Baron Creek, and/or Marshall from

operating a rifle and/or pistol range on Lot 6 pending the outcome of this case;

and a permanent injunction prohibiting PGR, Baron Creek, and/or Marshall

from operating the non-complying rifle and pistol ranges. Appellants’

Appendix Volume II at 52. The complaint also contained Count II, “Petition

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 6 of 18
 for Judicial Review,” and Count III, “Petition for Order Staying Zoning

Decision Pending Review.” Id. at 55, 66.

[16] On August 7, 2019, the Wises and Drakes filed an Agreed Motion for

Extension of Time to File Record of Proceedings. On September 11, 2019, PGR

and Baron Creek filed a Motion for Partial Dismissal; a Motion for Judgment

on the Pleadings and Dismissal (Counts II and III); and a Motion for Partial

Dismissal in which they argued in part that the Wises and Drakes did not have

standing to assert a claim premised on enforcement of the zoning ordinance.

On September 16, 2019, the BZA filed a response to the complaint. 1

[17] On September 25, 2019, the Wises and Drakes filed a Memorandum of Law in

Opposition to Motion for Partial Dismissal and a Memorandum of Law in

Opposition to Motion for Judgment on the Pleadings and Dismissal (Counts II

and III) and Cross Motion for Judgment on the Pleadings (Counts I, II, and

III). On October 2, 2019, the court held a hearing, and five days later it entered

an order denying the motion for partial dismissal and scheduled a hearing for

November 14, 2019.

[18] PGR and Baron Creek timely filed a motion to certify the order for

interlocutory appeal. On October 16, 2019, PGR and Baron Creek filed a

Motion to Dismiss Petition for Judicial Review, and two days later they filed a

Motion to Reconsider Motion to Dismiss and in the Alternative Motion to

1
The BZA has not filed a brief in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 7 of 18
 Consolidate in which they moved to consolidate the cause with cause number

60C02-1703-CT-116 (“Cause No. 116”). 2

[19] On November 12, 2019, the court denied PGR and Baron Creek’s Motion to

Certify Order for Interlocutory Appeal, Motion to Dismiss Petition for Judicial

Review, and Motion to Dismiss and in the Alternative Motion to Consolidate.

[20] On November 14, 2019, the court held the scheduled hearing. Counsel for the

Wises and Drakes asserted:

Your Honor we’re here today on a stay hearing and on a
Preliminary Injunction, Petitioners are entitled to both.
Although the granting of either will accomplish the same
purpose, which is to enjoin Defendants, Precision Gun Range
from operating its rifle range on property situated in Owen
County, either one of those will accomplish that purpose.

Transcript Volume I at 6.

[21] On January 3, 2020, the court entered an order that stayed the June 18, 2019

BZA decision. The court found that the petition for review and the petition for

a stay order showed a reasonable probability that the appealed zoning decision

2
On March 23, 2017, the Wises and Drakes filed a Complaint for Damages and Injunctive Relief against
PGR in the Owen Circuit Court under Cause No. 116. The complaint alleged Count I, negligence, Count II,
nuisance, and Count III, trespass. The complaint requested consequential damages, punitive damages, and a
permanent injunction to prevent PGR from operating and/or resuming the operation of the shooting range in
a manner that endangers the property of the Wises and Drakes “because without a permanent injunction
[PGR’s] operation of the Shooting Range threatens Plaintiffs with immediate and irreparable injuries that are
not compensable with monetary damages.” Appellants’ Appendix Volume VII at 83. On October 14, 2020,
a mediator filed a report in Cause No. 116 indicating that a settlement was reached in that case.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 8 of 18
was invalid and/or illegal, the BZA failed to issue written findings of fact, and

the BZA never considered the re-orientation of the rifle range. With respect to

the request for preliminary injunction, the court stated that under the per se rule,

the Wises and Drakes needed to show only that (i) they have at least a

reasonable likelihood of success at trial by establishing a prima facie case that

PGR is violating the law; and (ii) the public interest would not be disserved by

issuing the injunction. The court found that they established a reasonable

likelihood that PGR’s rifle range was in violation of the zoning ordinance and,

even if the BZA could authorize the rifle range, PGR was in violation of the

BZA’s only written authorization for the operation of the range. It ordered

PGR to refrain from operating its rifle range in a north to south shooting

orientation during the pendency of the stay and ordered the Wises and Drakes

to file a bond in the amount of $500 conditioned upon the due prosecution of

the proceeding. The court also denied PGR and Baron Creek’s motion for

judgment on the pleadings and dismissal of Counts II and III and the Wises and

Drakes’ cross-motion for judgment on the pleadings for Counts I, II, and III.

On January 29, 2020, PGR and Baron Creek filed a notice of appeal of the

January 3, 2020 order. 3

3
The notice of appeal states the appeal is from an interlocutory order and taken as of right pursuant to Ind.
Appellate Rule 14(A)(5).

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 9 of 18
 Discussion

[22] PGR and Baron Creek assert that: (A) the Wises and Drakes lack standing; (B)

the Wises and Drakes were not entitled to a stay; and (C) the preliminary

injunction was improper.

A. Standing

[23] To the extent PGR and Baron Creek argue that the Wises and Drakes lack

standing, this issue was raised by PGR in its September 11, 2019 Motion for

Partial Dismissal. The trial court denied this motion in its October 7, 2019

order, which was not certified for interlocutory appeal. Even assuming PGR

and Baron Creek can now assert that the Wises and Drakes lack standing, we

cannot say that reversal is warranted. Standing has been defined as “having

‘sufficient stake in an otherwise justiciable controversy to obtain judicial

resolution of that controversy.’” Ind. Civil Rights Comm’n v. Indianapolis

Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999) (quoting BLACK’S LAW

DICTIONARY 1405 (6th ed. 1990)), reh’g denied. Standing requires that a party

have “a personal stake in the outcome of the lawsuit and must show that he or

she has sustained or was in immediate danger of sustaining, some direct injury

as a result of the conduct at issue.” Foundations of East Chicago, Inc. v. City of East

Chicago, 927 N.E.2d 900, 903 (Ind. 2010) (quoting Higgins v. Hale, 476 N.E.2d

95, 101 (Ind. 1985)), clarified on reh’g by 933 N.E.2d 874.

[24] PGR and Baron Creek refer to the Owen County Zoning and Subdivision

Control Ordinance (the “Ordinance”) and assert that “[t]he Planning Director

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is fully vested with authority to determine whether or not a violation should be

pursued.” Appellants’ Brief at 32. Under the heading “Authorized Remedies

for Violations,” the Ordinance provides:

A. Upon a reasonable belief that a person is violating a provision
of this ordinance or a condition, requirement or commitment
imposed or made thereunder, the Planning Director may seek,
with the assistance of the Commission Attorney, the following
civil remedies:

1. a civil penalty for ordinance violation;

2. a temporary restraining order, preliminary injunction or
permanent injunction to restrain a person from violating
the ordinance or a condition, requirement or commitment
imposed or made thereunder; and

3. a mandatory injunction directing a person to perform a
condition, requirement or condition imposed or made
under the ordinance or to remove a structure erected in
violation of the ordinance. The foregoing remedies may be
sought by any property owner specially damaged by any such
violation of the ordinance.

Appellants’ Appendix Volume II at 156 (emphasis added). Based on the

Ordinance and the record, the Wises and Drakes do not lack standing.4

B. Stay

4
Ind. Code § 36-7-4-1603 is titled “Judicial review; standing” and addresses standing to obtain judicial
review of a zoning decision. PGR and Baron Creek do not cite Ind. Code § 36-7-4-1603 or present cogent
argument regarding the impact of the statute.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 11 of 18
[25] Appellants argue that the Wises and Drakes are not entitled to a stay, the

Petition for Judicial Review must be dismissed, and “[u]pon dismissal of the

Petition for Judicial Review, in accordance with I.C. 36-7-4-1609, there is no

basis to maintain an order of stay.” Appellants’ Brief at 45.

[26] Ind. Code § 36-7-4-1609 provides:

(a) A person seeking judicial review may seek, by filing a verified
petition, an order of the court staying the zoning decision
pending review by the court. The court may enter an order
staying the zoning decision pending a final determination if:

(1) the court finds that the petition for review and the
petition for a stay order show a reasonable probability that
the zoning decision appealed from is invalid or illegal; and

(2) a bond is filed that is conditioned upon the due
prosecution of the proceeding for review and that the
petitioner will pay all court costs and abide by the zoning
decision if it is not set aside. The bond must be in the
amount and with the surety approved by the court.
However, the amount of the bond must be at least five
hundred dollars ($500).

(b) If a petition for review concerns a revocation or suspension of
a previously approved variance, exception, or use, any stay
ordered under subsection (a) is effective during the period of the
review and any appeal from the review and until the review is
finally determined, unless otherwise ordered by the court
granting the stay. If the stay is granted as provided in this section
and the zoning decision is approved on final determination, the
revocation or suspension of the variance, exception, or use
immediately becomes effective.

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[27] Without citation to authority, PGR and Baron Creek argue that “[t]he June 18,

2019 BZA decision was not a zoning decision subject to judicial review.”

Appellants’ Brief at 41. They assert that the “June 18, 2019 vote to allow the

range to reopen is a nullity” and “was a vote for action not within the power or

the purview of the Board of Zoning Appeals.” Id. at 41-42. They also contend

that the Wises and Drakes waived any appeal of the April 9, 2015 decision of

the BZA. However, we note they acknowledge in their statement of facts that

the conditional use application and site plan with respect to the April 9, 2015

decision intended the operation of a rifle range in a west to east shooting

orientation, and that they subsequently operated the rifle range in a north to

south direction. We cannot say that PGR and Baron Creek have demonstrated

that the BZA’s June 18, 2019 decision did not constitute a zoning decision for

purposes of Ind. Code § 36-7-4-1609 or that the Wises and Drakes did not

timely file their complaint.

[28] To the extent PGR and Baron Creek argue that the complaint for declaratory

relief is mischaracterized as a request for judicial review and that no petition for

judicial review was filed, the Wises and Drakes correctly point out that

argument “ignores the fact that Homeowners filed a two-count complaint” and

that Count II was for judicial review. Appellees’ Brief at 42.

[29] PGR and Baron Creek also argue that “[t]endering eight hundred thirty-seven

(837) miscellaneous papers consisting of every loose paper from the BZA files

ever pertaining to Conditional Use Permit 2015-01 dating from April, 2015

through and after June 8, 2019 does not comport with I.C. 36-7-4-1613.”

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 Appellants’ Brief at 43. We note they do not assert that any portion of the

record is missing. We also note that the Joint Stipulations of Fact filed on

November 13, 2019, state: “The parties agree that all documents (837 pages)

contained in the files of the BZA certified by Jenny Osborne on August 28,

2019 and provided to the parties by the BZA’s counsel are authenticated as

public records and reserve all other objections to the admissibility of the records

for the hearing.” Exhibits Volume I at 6. This argument is without merit.

[30] In addressing the request for a stay under Ind. Code § 36-7-4-1609, the trial

court concluded that the petition showed a reasonable probability that the

appealed zoning decision was invalid and/or illegal, the BZA lacked authority

to grant a conditional use to operate a rifle range, and the Ordinance limited the

use of real property in Owen County. The court found that the BZA failed to

issue the required written findings of fact pursuant to Ind. Code § 36-7-4-915

and that, “[a]bsent specific, tailored, written findings of fact, the BZA’s June 18,

2019 decision is invalid and illegal and must be stayed pending a final

resolution of this matter.” Appellants’ Appendix Volume II at 43. The court

also found that the BZA never considered the re-orientation of the rifle range,

“[t]he BZA’s June 18, 2019 Zoning Decision allegedly authorizing PGR to

operate its rifle range is in violation of the BZA’s own Findings of Fact

approved in April of 2015 which oriented the range in a west to east direction,”

and “[w]ithout formal written action from the BZA and/or the Zoning

Administrator, PGR’s use of the range in a north to south orientation must be,

and hereby is, stayed.” Id. at 44. Appellants do not cite Ind. Code § 36-7-4-915

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 14 of 18
 or specifically challenge the trial court’s findings with respect to the stay under

Ind. Code § 36-7-4-1609. Again, Appellants have not demonstrated grounds for

reversal.5

C. Preliminary Injunction

[31] In challenging the preliminary injunction, PGR and Baron Creek assert that the

trial court made no findings of actual harm, and that declaratory relief is not

available where the Wises and Drakes have an adequate remedy through their

complaint for nuisance in Cause No. 116. They argue that “[t]he Court referred

to a per se rule that [PGR’s] actions were illegal and, therefore, exempted [the

Wises and Drakes] from satisfying the balance of harm and the balance of

public interest tests. However, [the Wises and Drakes] are not likely to succeed

on the merits of Count I.” Appellants’ Brief at 25.

5
For the first time in their reply brief, PGR and Baron Creek assert that the trial court’s conclusion that there
are no zoning districts that authorize a rifle range in Owen County is clearly erroneous, and they also
mention for the first time on appeal the Second Amendment of the United States Constitution. The Wises
and Drakes filed a motion to strike portions of PGR and Baron Creek’s reply brief including the argument
regarding the Second Amendment. In their reply to the motion to strike, PGR and Baron Creek
acknowledge that their opening brief did not address constitutional problems with an interpretation of the
Ordinance. Generally, the law is well settled that grounds for error may be framed only in an appellant’s
initial brief and are waived if addressed for the first time in the reply brief. See Monroe Guar. Ins. Co. v.
Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). In their Response to Motion to Strike, PGR and Baron
Creek assert that “[a]ppellate courts are not prohibited from considering the constitutionality of a statute even
though the issue otherwise has been waived” and that “a reviewing court may exercise its discretion to
review a constitutional claim on its own accord.” Appellants’ Response to Motion to Strike at 4 (citing Plank
v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53-54 (Ind. 2013)). We note that PGR and Baron Creek do not
challenge the constitutionality of a statute; rather, they assert there is no mention of shooting ranges being
prohibited in the Ordinance.

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[32] The grant or denial of a preliminary injunction rests within the sound discretion

of the trial court, and our review is limited to whether there was a clear abuse of

that discretion. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d

484, 487 (Ind. 2003). To obtain a preliminary injunction, the moving party has

the burden of showing by a preponderance of the evidence that: (1) the

movant’s remedies at law are inadequate, which will cause him irreparable

harm pending resolution of the substantive action; (2) the movant has at least a

reasonable likelihood of success at trial by establishing a prima facie case; (3)

the threatened injury to the movant outweighs the potential harm to the

nonmoving party that would result from the grant of an injunction; and (4) the

public interest would not be disserved by the injunction. Id. If the movant fails

to prove any of these requirements, the trial court’s grant of an injunction is an

abuse of discretion. Id.

[33] Under the “‘per se’ injunction standard,” “if the action to be enjoined clearly

violates a statute, the public interest is so great that the injunction should issue

regardless of whether a party establishes ‘irreparable harm’ or ‘greater injury.’”

State v. Econ. Freedom Fund, 959 N.E.2d 794, 804 (Ind. 2011) (citing Ind. Family

& Soc. Servs. Admin. v. Walgreen Co., 769 N.E.2d 158, 161-162 (Ind. 2002)), reh’g

denied, cert. denied, 568 U.S. 825 (2012). In other words, “a relaxed standard

may sometimes be applied for clear, uncontested unlawful conduct.” Ind.

Family & Soc. Servs. Admin., 769 N.E.2d at 162 (citing Schrenker v. Clifford, 270

Ind. 525, 529, 387 N.E.2d 59, 61 (1979)). “[B]ecause parties are relieved of

several showings usually necessary to obtain injunctive relief, this relaxed

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 16 of 18
 standard ‘is only proper when it is clear that [a] statute has been violated.’” Id.

(quoting Union Township Sch. Corp. v. State ex rel. Joyce, 706 N.E.2d 183, 192

(Ind. Ct. App. 1998), reh’g denied, trans. denied).

[34] To the extent PGR and Baron Creek assert that the trial court referred to the per

se injunction standard and improperly “exempted Petitioners from satisfying

the balance of harm and the balance of public interest tests,” Appellants’ Brief

at 25, we note that the trial court’s order addressed both harm and public

interests. With respect to harm, the trial court found that the Wises found

bullet holes in their home, shop, and trailer; the Drakes found a bullet hole in

their home’s gutter; PGR’s representative indicated PGR was aware it had a

problem with the range and indicated in March 2017 that the rifle alley would

be closed indefinitely; the Drakes and the Wises had no bullet strikes on their

property during the time the rifle range was closed; Kathy Wise reported a

bullet lodged in the north side of her residence on May 26, 2019, after PGR

unilaterally reopened the rifle range; the Wises and Drakes’ expert could not

rule out the range as the source of the bullets; and the Wises and Drakes’ lives

have been impacted by the discovery of bullets on and in their property. As for

the public interest, the trial court found that “[t]he public interest is actually

served by enjoining the operation of a rifle range on PGR’s property” and “[t]he

public is best served by having the law, including the local Zoning Ordinances

Court of Appeals of Indiana | Memorandum Decision 20A-PL-231 |November 30, 2020 Page 17 of 18
 applied in an orderly, fair, and judicious manner.” Appellants’ Appendix

Volume II at 46. We find no clear abuse of discretion by the trial court. 6

[35] For the foregoing reasons, we affirm the trial court’s January 3, 2020 order.

[36] Affirmed.

Robb, J., and Crone, J., concur.

6
As for PGR and Baron Creek’s assertion that the Wises and Drakes’ remedies at law are adequate, we note
that they did not appeal the trial court’s November 12, 2019 order denying their motion to dismiss or
consolidate the case with Cause No. 116. Further, a mediator filed a report on October 14, 2020, in Cause
No. 116 indicating that a settlement was reached. PGR and Baron Creek do not cite to any details of the
settlement. They have not established that an award of monetary damages or remedy which may have been
provided in the settlement would adequately protect the Wises and Drakes.

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