ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
TERRY R. CURRY WILLIAM T. ROSENBAUM
Butler Schembs Curry & Jones MAIDENA L. FULFORD
Indianapolis, Indiana Hyatt & Rosenbaum, P.A.
JEFFREY O. MEUNIER
Kiefer & McGoff
IN THE COURT OF APPEALS OF INDIANA
STANLEY E. HOLLIDAY and ) VERA M. HOLLIDAY, ) ) Appellants-Defendants, ) ) vs. ) No. 49A05-0010-CV-428 ) CROOKED CREEK VILLAGES ) HOMEOWNERS ASSOC., INC. ) ) Appellees-Plaintiffs. )
APPEAL FROM THE MARION SUPERIOR COURT, ROOM 6
The Honorable Thomas J. Carroll, Judge
Cause No. 49D06-9807-CP-1018
December 7, 2001
OPINION - FOR PUBLICATION
II. Whether the trial court erred in awarding attorney fees to Crooked Creek.
The Hollidays responded to Crooked Creeks notice with a letter stating that paragraph
eleven of the plat covenant was in clear violation of Federal Communications Commission
(FCC) rules and was thus unenforceable as written. Following one further notice
from its attorney urging the Hollidays to comply with the plat covenant, Crooked
Creek filed the instant cause of action on July 20, 1998. Crooked
Creeks complaint requested: (1) a trial court determination that the Hollidays antennae
and satellite dish system are in violation of the plat covenant; (2) an
injunction requiring the removal of the antennae and satellite dishes; and (3) costs
and attorney fees.
In April of 1999, the Hollidays moved the trial court for a continuance of the trial date in order to petition the FCC for a declaratory ruling regarding the enforceability of the plat covenant under 47 C.F.R. § 1.400. See footnote The continuance was granted, and on October 8, 1999, the FCC issued its findings and order on the Hollidays petition. The trial court subsequently conducted an evidentiary hearing to consider the effect of the FCCs findings and order. R. at 66.
On August 15, 2000, the trial court issued its findings of fact and judgment against the Hollidays and in favor of Crooked Creek. The trial courts order permitted the Hollidays to maintain one mast attached to the side or back of their house which may support one satellite dish and one antenna. R. at 91. The trial court also awarded costs and attorney fees in the amount of $6000.00 to Crooked Creek. On September 13, 2000, Appellate Counsel entered his appearance on behalf of the Hollidays and filed a motion to correct error. The trial court issued an order denying the motion the following day.
The Hollidays appeal.
ARCHITECTURAL DESIGN AND ENVIRONMENTAL CONTROL. No building, fence, walls, or other structure shall be erected, placed, and altered on any building lot in this Subdivision until the building plans, specifications and plot plan showing the location of such structures have been approved as to the conformity and harmony of external design with existing structure herein and as to the building with respect to topography and finished ground elevations by an Architectural and Environmental Control Committee (Committee).
R. at 194. The Hollidays do not contend that the antennae and
masts at issue are anything other than structures within the meaning of paragraph
A restrictive covenant is a contract between a grantor and a grantee, which restricts the grantees use of land. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct. App. 1992). The general purpose of a restrictive covenant is to maintain or enhance the value of adjacent property by controlling the nature and use of surrounding properties. Id. Restrictive covenants are disfavored in the law. Id. However, because of their contractual nature, restrictive covenants are enforced as long as the restrictions are unambiguous and do not violate public policy. Id.
The Hollidays requested a declaratory ruling from the FCC regarding the enforceability of paragraph eleven of the plat covenant in light of 47 C.F.R. § 1.400. The relevant portions of section 1.400, also known as the FCCs Over-the-Air Reception Devices Rule (Rule), provide:
(a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of:
(i) An antenna that is:
(A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and
(B) One meter or less in diameter or is located in Alaska;
(ii) An antenna that is:
(A) Used to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and
(B) That is one meter or less in diameter or diagonal measurement;
(iii) An antenna that is used to receive television broadcast signals; or
(iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent it so impairs, subject to paragraph (b) of this section.
47 C.F.R. § 1.400(a)(2)(i)-(iv). The regulation further specifies that a restrictive entity impairs installation, maintenance, or use of an antenna if it . . . [p]recludes reception or transmission of an acceptable quality signal. Id. at (a)(3)(iii). The regulation nevertheless permits otherwise prohibited restrictions if they are necessary to accomplish a clearly defined, legitimate safety objective or if they are necessary to preserve a prehistoric or historic district, site, building, structure. Id. at (b)(1)-(2). The burden of proving that a restriction complies with the Rule falls upon the party seeking to impose or maintain the restriction. Id. at (g).
In analyzing the enforceability of paragraph eleven within the context of the Rule, the FCC determined that it is prohibited and unenforceable to the extent that it impairs the installation, maintenance, or use of over-the-air reception antennas protected by the Rule. R. at 66 (emphasis added). More specifically, the FCC found that:
[Crooked Creek] has clearly stated a policy of limiting homeowners to the installation of one satellite dish antenna and one television antenna. We note that [Crooked Creeks] absolute limit appears to be based solely on aesthetic concerns and not on a valid safety basis. In the absence of a valid safety justification, an arbitrary limit can impair use of video antennas in violation of the Rule if a viewer needs more than the number of antennas allowed by [Crooked Creek] in order to receive an acceptable quality signal. Consequently, an Association or other restricting entity cannot impose an arbitrary limit on the number of antennas a viewer may install provided they are necessary to receive the video programming available for reception in the viewers viewing area. A restricting entity may prohibit the installation of equipment that is merely duplicative and not necessary for the reception of video programming. However, the record in this proceeding does not contain sufficient information to enable us to determine whether it is necessary for [the Hollidays] to maintain five television antennas and three satellite dish antennas in order to receive the video programming available in their viewing area.
R. at 65-66 (emphasis added). Thus, the residual issue to be determined
by the trial court was whether all of the Hollidays satellite dishes, masts
and antennae were necessary to ensure an acceptable quality signal on televisions in
the Hollidays home and not merely duplicative. It is clear from the
Hollidays FCC ruling and from other FCC rulings regarding restrictive covenants that the
amount of reception equipment necessary to provide an acceptable quality signal for all
of the television programming desired by a viewer is an issue to be
decided on a case-by-case basis.
The Hollidays contend that Crooked Creek presented no evidence to the trial court tending to demonstrate that any of the satellite dishes, masts and antennae were duplicative and therefore subject to the paragraph eleven restriction. They argue that the undisputed evidence shows that Stanley Holliday carefully designed the satellite dish and antenna system to minimize the amount of equipment necessary to obtain an acceptable quality signal to all of the television sets throughout his home. Br. of Appellant at 10.
However, under direct examination by Crooked Creek at the hearing, Stanley Holliday admitted without hesitation that he received all of the television programming he wished to receive on the television in his master bedroom, which is one of at least ten on the first and second floors of his home:
Q. Now, is there more than one (1) television set in your master bedroom?
A. Not at this time.
Q. Okay, so theres a single set?
A. Just a single set. I have two (2) VCRs though.
Q. Okay. And, umis this television set connected to Direct TV?
Q. And Comcast?
A. And also off the air.
Q. Okay, and the combination of those three in your master bedroom, does
that provide you with all the television programming that you wish to
A. At this time, yes.
R. at 24-25.
The relevant portions of the trial courts findings are as follows:
3. As a part of the construction of this home, Mr. and Mrs. Holliday had a satellite dish system installed by the builder which was designed so that one satellite dish could feed the first and second floor of the house.
4. Mr. and Mrs. Holliday added a second satellite dish to serve the television in the basement and a third satellite dish to serve the television on the back porch.
5. Mr. and Mrs. Holliday have three masts attached to their home and one satellite dish is attached to each mast.
6. Each mast also holds one or more antenna, which are used for reception of local stations.
7. The mast which supports the satellite dish for the television set on the back porch also requires the support of two poles which are installed in the Hollidays back yard.
8. Mr. and Mrs. Holliday have also chosen to subscribe to Comcast Cablevision, which is connected to ten (10) television sets throughout their home.
9. Federal law guarantees a homeowner the right to an acceptable quality signal to receive all television programming which they wish to receive.
10. Mr. and Mrs. Holliday can receive an acceptable quality signal of all television programming which they wish to receive on one or more television sets using a single satellite dish and a single television antenna. The additional satellite dishes, antenna, masts, poles and wires are merely duplicative and may be regulated or excluded by the Crooked Creek Villages Homeowners Association.
R. at 89-90.
We believe that the trial courts findings numbers nine and ten are dispositive. The evidence shows that the Hollidays can receive the programming they desire by retaining the original satellite dish system that services most of the televisions on the first and second floors of the home. Moreover, Stanley Holliday himself admitted that at least the single television in the master bedroom alone currently receives all of the programming he desires. Under these circumstances, and without clearer guidance from the FCC, there is ample evidence that the antennae beyond those authorized by the trial court are merely duplicative and therefore subject to the prohibition of the restrictive covenant. We find that the evidence clearly supports the trial courts findings, which, in turn, support the judgment. To hold otherwise would cause paragraph eleven to be meaningless as it pertains to antennae and satellite dishes, a holding that Indiana common law requires us to strive to avoid. See, e.g., Bicknell Minerals, Inc. v. Tilly, 570 N.E.2d 1307, 1316 (Ind. Ct. App. 1991), trans. denied.
R. at 196 (emphasis added). Recovery of attorney fees incurred as a
result of Crooked Creeks response to the Hollidays petition to the FCC for
declaratory judgment is clearly authorized in this provision. In addition, Crooked Creek
specifically requested attorney fees in its complaint. The trial court did not
abuse its discretion in its award of attorney fees to Crooked Creek.
Further, we find the amount of the award to have a sound basis in the record even though the exhibit on which it is based was not included. Crooked Creeks Counsel represented to the trial court that he spent seven and a half hours on the case in 1998 when his hourly rate was $110, for a total of $825. In 1999, his hourly rate increased to $125 and remained such for the pendency of the case. Through noon of the hearing date, Counsel represented that he billed thirty-eight point three hours, for a total of $4787.50. At the time of his testimony regarding fees, Counsel represented that he had worked an additional two hours and forty minutes, which works out to approximately $337.50. Therefore, Crooked Creeks total accrued attorney fees at the end of their case-in-chief was $5950.00. We find that the record is more than sufficient to supports the trial courts award of $6000.00 in attorney fees to Crooked Creek.