CRONE, Judge.
Simon and Victoria J. Beemsterboer reside on property ("the Beemsterboer Property") owned by Trust No. 6011, Lake County Trust Company, Trustee. Victoria is the beneficiary of the Trust. The Beemsterboer Property shares a border with Heil's Haven Condominiums. When the condominiums were developed, several agreements were executed between the Heil's Haven Condominiums Homeowners Association ("the Association") and the previous owners of the Beemsterboer Property, granting various easements to each to use portions of the others' property. The Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the Association. The Association filed suit against the Trust and the Beemsterboers (collectively referred to as "the Beemsterboers") seeking to enjoin the Beemsterboers from improving their property in a manner that infringed on the easements, and the trial court granted the requested relief.
The Beemsterboers appeal, arguing that the trial court erred in granting injunctive relief because (1) one of the agreements has terminated; (2) the improvements can be made in a manner that does not infringe upon the Association's existing easements to use the Beemsterboer Property; and (3) the Association's encroachment is greater than that permitted by agreement. We conclude that one agreement has terminated and that the improvements can be made in a manner that does not infringe upon the Association's continuing easements. We further conclude that the trial court's order deals effectively with the Association's encroachment. Therefore, we affirm in part and reverse in part.
The Beemsterboer Property is located in Kosciusko County, west of and adjacent to property occupied by Heil's Haven Condominiums. These properties extend roughly from Hatchery Road on the south to Lake Wawasee on the north. The properties were once a single parcel owned by James and Jane Fry. The Frys lived in a residence on the west side of the property and operated a motel on the east side. In the 1980s, the Frys converted the motel into Heil's Haven Condominiums and divided the single parcel into two parcels, each with frontage on Lake Wawasee: a western parcel with the personal residence and an eastern parcel for the condominiums. Ultimately, the Frys' western parcel came into the possession of the Beemsterboers.
When Heil's Haven was developed, the Frys and the Association executed several written agreements creating easements for the shared use of property and an agreement granting the Association an easement over a portion of the Frys' property.
The Water and Walkway Easement granted the Frys, and their successors and assigns, "a license for use of the pump and utility house, mechanical equipment therein and lines connecting said pump and utility house to [the Frys' property]" and granted the Association, and its successors and assigns, the use of a paved sidewalk running along the east side of the Frys' property (now the Beemsterboer Property) for "ingress and egress" to Lake Wawasee. Ex. B. at 3. The walkway easement granted in the Water and Walkway Easement is identified in a 2010 Survey as "Cross License Agreement-Ingress and Egress." Plaintiff's Ex. S. The Water and Walkway Easement provided in relevant part,
Ex. B. at 3 (emphases added).
In the event the Water and Walkway Easement terminated, the Frys and the Association had a backup plan: the Replacement Walkway Easement. Specifically, the Replacement Walkway Easement granted an easement to the Association to use a three-foot-wide area on the Frys' property (now the Beemsterboer Property) when "the current License for ingress and egress to the lakefront of the Heil's Haven [Condominiums] no longer exists and at such time the [replacement walkway area] may be used for installation of a concrete sidewalk to be used by owners of Units in the Heil's Haven Condominiums or their guests." Ex. D. at 2.
Finally, the Encroachment Agreement permitted the Association to maintain a deck that encroached onto the Frys' property (now the Beemsterboer Property) "for so long as the wooden deck which constitutes such encroachment is not expanded, altered or modified in any manner and continues to be used as part of the [property] known as Heil's Haven Condominiums." Ex. C. at 2.
Subsequent to the development of Heil's Haven, the Frys sold their residence, and it was eventually purchased/inherited by Garry Bickel, the owner immediately prior to the Beemsterboers. During Bickel's ownership, a fire destroyed the residence and the water lines to the pump and utility house mentioned in the Water and Walkway Easement. Bickel built a new residence with its own water supply on his property. Bickel also installed a new sidewalk that he intended the condominium owners to use in the same manner as they had used the old sidewalk. Bickel believed that the new sidewalk was located wholly within the area licensed to the Association in the Water and Walkway Easement. Bickel later learned, however, that the new sidewalk extended farther onto his property than provided for in the Water and Walkway Easement. Currently, the sidewalk installed by Bickel is the only paved path that runs from Heil's Haven's parking lot to the lakefront. The condominium owners use the sidewalk to transport paddleboats, sailboats, and other equipment from the parking lot to the lakefront.
In 2008, Bickel sold the property to the Trust, and the Beemsterboers began residing there. In a March 2010 letter, Simon Beemsterboer informed the Association of his intent to install a fence along the parties' common property line. Plaintiff's Ex. Q. The proposed fence would enclose the Beemsterboers' yard, including the sidewalk installed by Bickel and the easement granted to the Association in the Water and Walkway Easement. Id. The fence would also enclose one of the septic tanks referred to in the Septic Easement.
Also that spring, the Beemsterboers began constructing a stairway from their second story deck. The stairway and its supporting posts lie wholly within the Beemsterboer Property. In other words, the stairway and posts are not in the walkway
On June 2, 2010, the Association filed a complaint for preliminary and permanent injunctions against the Beemsterboers seeking to enjoin them from constructing the fence and continuing construction of the staircase. That same day, the trial court issued a temporary restraining order granting the requested relief. On July 13, 2010, following an evidentiary hearing, the trial court entered a preliminary injunction prohibiting the Beemsterboers from constructing a fence or other structure obstructing the areas described in the Water and Walkway Easement and the Septic Easement. The Beemsterboers filed a counterclaim, alleging that the Water and Walkway Easement and the Septic Easement no longer served any purpose and/or were terminated and that Heil's Haven's deck encroachment should be removed because it is outside the encroachment area described in the Encroachment Agreement.
The trial court conducted a bench trial, ordered the parties to submit proposed findings of fact and conclusions thereon, and took the matter under advisement. The trial court adopted the Association's proposed findings of fact and conclusions thereon and entered a judgment ("the Judgment") that provides in relevant part as follows:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
Appellants' App. at 11-14.
The Beemsterboers filed a motion to correct error and a motion to stay the judgment. The trial court denied the first and granted the latter. The Beemsterboers appeal.
When, as here, issues are tried upon the facts by the court without a jury, Trial Rule 52 provides that a trial court "shall find the facts specially and state its conclusion thereon" either "[u]pon its own motion" or upon "the written request of any party filed with the court prior to the admission of evidence." "Our standard of review on judgments under Trial Rule 52 differs slightly depending upon whether the entry of specific findings and conclusions comes sua sponte or upon [written] motion by a party." Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App. 2011), trans. denied (2012). According to the record before us, neither party filed a written request for findings of fact and conclusions thereon, and therefore the trial court entered findings and conclusions sua sponte.
Id.
Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind.Ct. App.2009) (citations and quotation marks omitted), trans. denied. "[W]hile we defer substantially to findings of fact, we do not do so to conclusions of law." McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App. 2010) (citation omitted), trans. denied (2011). "We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions." Id.
The Beemsterboers argue that the trial court erred in finding that one, but not both, of the easements granted in the Water and Walkway Easement remains in effect. They challenge Finding 15 and Conclusions 2 through 5 and ask us to reverse Paragraphs 1 through 3 of the Judgment. Appellants' App. at 12-14. The trial court found that the easement granted to the Frys, and their successors and assigns, to use the pump and utility house, etc., had terminated but that the easement for ingress and egress granted to the Association had not. The Beemsterboers contend that, pursuant to its express terms, the Water and Walkway Easement terminated in its entirety when the fire burned down Bickel's residence.
To resolve this issue we must construe the terms of a written contract, a pure question of law. Therefore, our standard of review is de novo. Drees Co., Inc. v. Thompson, 868 N.E.2d 32, 38 (Ind.Ct. App.2007), trans. denied. Fundamental rules of construction guide us here. "Unless the terms of a contract are ambiguous, they will be given their plain and ordinary meaning." Tanton v. Grochow, 707 N.E.2d 1010,
More specifically, we have said:
Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 972-73 (Ind.Ct.App.2001) (quoting Erie-Haven, Inc. v. First Church of Christ, 155 Ind.App. 283, 289, 292 N.E.2d 837, 841 (1973)) (emphasis added).
Paragraph 6 of the Water and Walkway Easement states, "Should the water lines connecting said pump and utility house with [the Frys' property] fail to such an extent that a water supply is not available to [the Frys' property], then this Cross License Agreement shall terminate." Ex. B. at 3 (emphasis added). The Association asserts that "this" refers only to the topic of Paragraph 6; namely, the water easement. We disagree. "This" obviously refers to "Cross License Agreement," which is the title of the instrument and thus encompasses both easements granted therein.
This construction is consistent with the rest of the instrument. Paragraph 7 governs termination and applies to the "licenses" granted in the Water and Walkway Easement. Paragraph 7 sets forth three events that will terminate both easements:
Id. One of the events that terminates the "licenses" is "as hereinabove described," which clearly refers to the immediately preceding paragraph, the only other place termination is addressed.
We conclude that the Water and Walkway Easement automatically terminated by its own express terms when the Bickel residence burned down and the water supply failed. Therefore, we conclude that the trial court clearly erred in determining in Finding 15 that the provisions of the Water and Walkway Easement pertaining to the Association's easement for ingress and egress are still in effect.
The Beemsterboers also contend that the trial court clearly erred in determining in Finding 10 that their proposed fence would prevent the Association's access to a septic tank lid. Finding 10 underlies both Conclusion 2, in which the trial court concluded that the fence would violate the Septic Easement, and part of Paragraph 1 of the Judgment, in which the trial court permanently enjoined the Beemsterboers from obstructing the Association's use of or placing a fence which in any fashion blocks the Association's access to the easement area described in the Septic Easement. The Beemsterboers do not argue that the Septic Easement terminated, but rather that the Septic Easement does not require that the septic system be maintained in an unfenced area. The Beemsterboers further argue that the Association would have access to the easement area described in the Septic Easement either through a gate opening, a removable piece of fence, or other accommodation presented at trial. Appellants' Br. at 26 (citing Tr. at 31, 112-13). The Association baldly asserts that the fence would prevent access to the septic tank and do not address whether the accommodations offered by the Beemsterboers would provide adequate access.
In resolving this issue we observe that
Our review of the record before us reveals that at trial, a condominium owner testified that the Association would have access to the septic tank on the Beemsterboer Property if a gate was built into the Beemsterboers' proposed fence. Tr. at 31. In its appellee's brief, the Association does not cite to any evidence in the record that supports the trial court's finding that the fence would block access to the septic tank. The Association does not argue that the accommodations offered by the Beemsterboers would be insufficient. Accordingly, we conclude that Finding 10 and Conclusion 2 are clearly erroneous. Nevertheless, we observe that Paragraph 1 of the Judgment permanently enjoins the Beemsterboers from "obstructing" the use of the area described in the Septic Easement and prohibits them from placing "a fence which in any fashion blocks" the Association's access to or use of the area described in the Septic Easement. A fence that provides ready access to the septic tank would not obstruct or block the Association's access to the area described in the Septic Easement. However, a fence that does not provide ready access to the septic tank would obstruct and block the Association's access. Therefore, we need not reverse this portion of the Judgment.
Finally, we turn to the Beemsterboers' challenge to Paragraph 4 of the Judgment, in which the trial court permanently enjoined them "from in any fashion interfering with the [Association's] deck, ... even though the actual location of the deck encroachment may vary slightly from the description contained in [the Encroachment Agreement]." Appellants' App. at 14. The Beemsterboers present two arguments. First, they assert that it was error for the trial court to grant the Association the right to encroach upon their property beyond that described in the Encroachment Agreement. However, they "only request that the deck be cut back to conform to the easement in the event the order to remove the stairway is affirmed." Appellants' Br. at 28; Appellants' Reply Br. at 15. Because we have reversed the trial court's order to remove the stairway, we need not address this issue.
Second, the Beemsterboers argue that Paragraph 4 permanently enjoins them from "any" interference with the deck "in all circumstances." Appellants' Br. at 27. They note that the Encroachment Agreement permits the Association to maintain the deck "for so long as the wooden deck which constitutes such encroachment is not expanded, altered or modified in any manner and continues to be used as part of the [property] known as Heil's Haven Condominiums." Ex. C. at 2. The Beemsterboers' reading of the trial court's order is overly expansive. We read the trial court's order as restricting the Beemsterboers from interfering with the deck based on the fact that its current and historical encroachment is somewhat greater than that described in the Encroachment Agreement. The trial court's order does not affect the terms of the Encroachment Agreement. Accordingly, we affirm Paragraph 4 of the Judgment.
We affirm the portion of Paragraph 1 of the Judgment pertaining to the Septic Easement, as well as Paragraph 4. We reverse the portion of Paragraph 1 pertaining to the Water and Walkway Easement, as well as Paragraphs 2 and 3.
Affirmed in part and reversed in part.
FRIEDLANDER, J., and BAILEY, J., concur.
