Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A

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### MEMORANDUM DECISION ON REHEARING Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.



### A TTORNEY FOR 

### A PPELLANTS John J. Schwarz, II Schwarz Law Office, PC Hudson, Indiana 

### A TTORNEY FOR 

### A PPELLEES 

### P UTNAM 

### C OUNTY 

### C OMMISSIONERS Trudy L. Selvia Greencastle, Indiana 

### A TTORNEY S FOR 

### A PPELLEE 

### I NTERVENOR Hayleigh J. Neumann Robert J. Nice The Nice Law Firm, LLP Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

William E. Morrison and Sonya Morrison, Appellant s - Respondents,

v. 

### Putnam County Commissioners, Appellees

- Petitioners, 

### and Donald Richards, Appellee

- Intervenor November 20, 2018 Court of Appeals Ca se No. 18A

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- 462 Appeal from the Putnam Superior Court The Honorable Raymond M. Kirtley, Senior Judge Trial Court Cause No. 67D01

- 1402

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- 3Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A

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### Baker , Judge.

[1] 

### William and Sonya Morrison have filed a petition for rehearing on this Court’s original decision in this matter. We grant it for the limited purpose of addressing their second argument, which relates to whether the trial court erroneously determined that they did not establish a prior non

- conforming use of the property. We initially found that the Morrisons waived this issue because they neglected to raise it below. On rehearing, they point out that at two points in the transcript, their attorney used the word “grandfathered,” which they maintain is sufficient to preserve their right to make this argument. Tr. Vol. II p. 116, 208

- 10. We question whether two isolated instances of the use of this word, which occurred in the context of resp onding to objections made by opposing counsel, suffice to preserve this argument. But we will give them the benefit of the doubt and assume that they have not waived it.

[2] 

### They argue that William’s testimony that “[t]he majority of the items out there preda te the ’92 zoning laws” is enough to sustain their burden of showing a prior non

- conforming use. Id. at 103. The trial court had the benefit of in

person observation of this bench trial. It was for the trial court, rather than this Court, to assess the credibility of the witnesses before it. We will not second

guess the trial court’s implicit determination that William’s testimony on this issue was not credible. Aside from this brief sentence, there is no other evidence in the record supporting the Mor risons’ assertion that the complained

of items on their property predated the relevant ordinances. Therefore, we decline to reverse for this reason.Court of Appeals of Indiana | Mem. Dec. on Rehearing 18A

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[3] 

### In all other respects, we deny the petition for rehearing, and our original decision affirming the trial c ourt’s order remains.
May , J., and Robb, J., concur

.