Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 1 of 10

ATTORNEY FOR APPELLANT

Peter S. Kovacs

Peter Kovacs Law PC

Fishers, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey M. Bellamy

Stephen R. Donham

Thrasher Buschmann & Voelkel, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Craig D. Severance and

Catherine Severance,

Appellants-Defendants/Cross-Appellees,

v.

The Pleasant View Homeowners 

Association, Inc.,

Appellee-Plaintiff/Cross-Appellant

February 27, 2018

Court of Appeals Case No.

29A02-1708-PL-1695

Appeal from the Hamilton Superior 

Court

The Honorable Jonathan M. Brown, 

Judge

The Honorable Daniel J. Pfleging, 

Judge

Trial Court Cause No.

29D02-1504-PL-2764

Crone, Judge.
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 2 of 10

Case Summary

[1] The Pleasant View Homeowners Association, Inc. (“the HOA”), filed a 

complaint to enjoin Craig and Catherine Severance from using their residential 

lot in a manner inconsistent with Pleasant View subdivision’s covenants and 

restrictions by parking commercial vehicles, limousines, on their lot or in the 

street in front of and adjacent to their home located in the subdivision. 

Following an evidentiary hearing, the trial court issued a preliminary injunction 

prohibiting the Severances from continuing to park the vehicles in such a 

manner. However, the trial court subsequently declined to enter a permanent 

injunction based upon the Severances’ affirmative defense that the HOA lacked 

the authority to sue the Severances for an injunction because the HOA’s board 

of directors was not properly constituted or operating in accordance with its 

own rules of corporate governance. The court set a future date for a hearing on 

the Severances’ claimed damages. 

[2] Prior to the trial court’s entry of a final judgment, the HOA directed the trial 

court to the passage of new statutory law regarding the governance of Indiana 

homeowners associations. The HOA claimed that the new law nullified the 

Severances’ affirmative defense regarding the HOA’s authority to seek an 

injunction. The trial court held a hearing and thereafter entered its final

judgment determining that it could not reconsider its prior denial of the 

permanent injunction and that the Severances were entitled to no damages. 

The Severances now appeal the trial court’s denial of their request for damages. 

The HOA cross-appeals the trial court’s denial of its request for a permanent 
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 3 of 10

injunction. Concluding that our resolution of the cross-appeal is dispositive, we 

reverse and remand to the trial court for further proceedings.

Facts and Procedural History

[3] The HOA is an Indiana not-for-profit corporation with the primary purpose to 

manage the residential subdivision known as Pleasant View in Hamilton 

County. The Severances are the owners of record of a lot within that 

subdivision. The affairs of the HOA and its members are governed by three 

documents: (1) the Declaration of Covenants, Conditions and Restrictions for 

Pleasant View (“the Covenants and Restrictions”); (2) the Articles of 

Incorporation; and, (3) the By-Laws of the HOA (“the Bylaws”). The 

Covenants and Restrictions provide in relevant part,

Section 10.4. Parking and Prohibited Vehicles.

(a) Parking. Vehicles shall be parked only in the garages or on 

the driveways, if any, serving the Lots or in appropriate spaces or 

designated areas in which parking may be assigned and then 

subject to such reasonable rules and regulations as the Board may 

adopt. Garages shall be used for parking of vehicles and no other 

use or modification thereof shall be permitted which would 

reduce the number of vehicles which may be parked therein 

below the number for which the garage was originally developed. 

The [HOA] may designate certain on-street parking areas for 

visitors or guests subject to reasonable rules.

....

(b) Prohibited Vehicles. Commercial vehicles, vehicles with 

commercial writing on their exteriors, [and] vehicles primarily 

used or designed for commercial purposes ... shall be parked 
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 4 of 10

only in enclosed garages or areas, if any, designated by the 

Board.

Appellants’ App. Vol. 2 at 64-65.

[4] On April 6, 2015, the HOA filed a complaint for injunctive relief against the 

Severances alleging that the Severances operated a commercial limousine 

business at their lot and parked commercial vehicles on their lot or in the 

adjacent street in violation of the Covenants and Restrictions.

1

 Following an 

evidentiary hearing, the trial court issued an order granting a preliminary 

injunction against the Severances. The court found that the Severances had 

violated the Covenants and Restrictions and enjoined them from parking their 

business vehicles in the subdivision unless stored indoors. The trial court

ordered the HOA to maintain bond in the amount of $2500 to cover any 

estimated damages incurred by the Severances “to the extent of an entry of a 

wrongful preliminary injunction.” Id. at 127. The court further stated, “[i]f this 

injunction is later deemed improper, [the HOA] and [the Severances] shall have 

an opportunity to dispute the proper amount of damages at that time.” Id.

[5] On December 4 and 28, 2015, the Severances objected to the preliminary 

injunction based on alleged irregularities in the election and/or appointment of 

the HOA’s board of directors. In sum, the Severances argued that the board of 

directors was without authority to exercise corporate power (including the 

 

1 The record indicates that the Severances own and operate Indy Limo Transport LLC.
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 5 of 10

power to sue for injunctive relief to enforce the Covenants and Restrictions) on 

behalf of the HOA. On January 15, 2016, the Severances made a similar 

argument by way of a counterclaim that was subsequently struck by the trial 

court on the HOA’s motion. On March 16, 2016, the Severances filed a 

“Request for a Hearing to Rule on all Pretrial Evidence” again arguing that the 

board of directors was not properly constituted or operating within its own 

Bylaws. The trial court took no action on the request.

[6] On July 1, 2016, the HOA requested a permanent injunction hearing. An 

evidentiary hearing was held on August 4 and 31, 2016. On November 1, 2016, 

the trial court entered its findings of fact, conclusions thereon, and order 

declining to enter a permanent injunction. Specifically, the trial court 

incorporated its findings of fact and conclusions thereon supporting its order of 

preliminary injunction but then found and concluded in relevant part:

7. [The Severances] contend that the Directors of [the HOA] are 

not legitimate and therefore cannot exercise the powers and 

duties of [the HOA] because they were not installed according to 

[the HOA’s] Bylaws.

8. The evidence received at the hearings support [the 

Severances’] contention....

....

11. In short, [the HOA] is clearly a dysfunctional entity because 

it has, and continues to operate outside of its Bylaws....

12. [The HOA] seems to have strayed significantly from the 
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 6 of 10

language of the Bylaws. While the Directors’ testimony at the 

Hearing describing the time and effort they devoted to ensuring 

the operation of [the HOA] was laudable, this does not make it 

legal according to the Bylaws. Volunteering is not a qualification 

by itself to assume the mantle of director. The Court recognizes 

the effort put forth [by the HOA], and [its] attempt in this 

situation to remedy a nuisance. The limousines being park[ed] 

on the streets of the subdivision merited the granting of the 

preliminary injunction and could have possibly resulted in a 

permanent injunction being issued, if there was a legally 

constituted Board of Directors.

....

13. Because the [HOA’s] Board of Directors is not legitimate due 

to the Directors neither being properly elected nor properly 

appointed, they could not exercise the corporate powers found in 

the [Covenants and Restrictions], Articles of Incorporation, or 

Bylaws, including the power to file the instant lawsuit against the 

Severances seeking to enforce the [Covenants and Restrictions].

Id. at 195-97. Accordingly, the trial court ordered the preliminary injunction 

dissolved and declined to enter a permanent injunction. The trial court 

scheduled a damages hearing for a later date. 

[7] Shortly thereafter, the HOA held a special meeting in an attempt to cure its

corporate governance deficiencies. On December 1, 2016, the HOA filed a 

motion requesting the trial court to reconsider its denial of the permanent 

injunction. The HOA supported its motion with an affidavit informing the trial 

court that a properly constituted board of directors was now in place and that 

the HOA’s membership had voted to ratify and approve all prior actions of the 
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 7 of 10

board of directors, including institution of the current lawsuit. The trial court 

denied the motion on December 22, 2016. 

[8] A damages hearing was held on February 9, 2017, during which the Severances 

argued that they were entitled to recover damages, specifically the attorney’s 

fees they incurred in defending the injunction. Prior to the trial court issuing 

any ruling regarding damages, the HOA filed a “Notice of Emergency Change 

in Law and Request for Hearing” asking the trial court to reconsider its denial 

of the permanent injunction, this time based on the passage of new legislation, 

Indiana Code Section 32-25.5-3-11, regarding corporate governance for 

homeowners associations. The HOA argued that the new legislation nullified 

the Severances’ affirmative defense regarding the HOA’s authority to enforce 

the Covenants and Restrictions. The trial court held a final hearing and on June 

5, 2017, issued an order reiterating its prior denial of the permanent injunction 

and further determining that the Severances were not entitled to recover 

damages. This appeal and cross-appeal ensued.

Discussion and Decision

[9] Because we find it dispositive, we address only the HOA’s cross-appeal

challenging the trial court’s denial of its request for a permanent injunction

against the Severances based upon the trial court’s conclusion that the HOA 

lacked the authority to enforce the Covenants and Restrictions due to
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 8 of 10

irregularities in how the board of directors was constituted.

2

 Our review of the 

convoluted procedural history in this case reveals that, prior to the entry of its 

judgment on June 5, 2017, the trial court declined to entertain certain 

arguments advanced by the HOA or consider certain legal authority or evidence

because the court genuinely believed that it could not “go back and reopen” and 

consider the merits of its November 20163 order denying the permanent 

injunction because that order was a final judgment. Id. at 19. This belief was 

mistaken.

[10] It has long been recognized that a final judgment disposes of all issues as to all 

parties, thereby ending the particular case and leaving nothing for future 

determination. John C. & Maureen G. Osborne Revocable Family Tr. v. Town of 

Long Beach, 78 N.E.3d 680, 692 (Ind. Ct. App. 2017) (citations and quotation 

marks omitted), trans. denied. Indiana Appellate Rule 2(H) formalizes this 

principle and “defines a judgment as a ‘final judgment’ if among other things, it 

disposes of all claims as to all parties or the trial court determines in writing that 

there is no just reason for delay and expressly directs entry of judgment” to 

fewer than all the claims or parties pursuant to Indiana Trial Rule 54(B) or 

56(C). Town of Ellettsville v. Despirito, 87 N.E.3d 9, 11-12 (Ind. 2017). Contrary 

 

2 The Severances have filed a motion to dismiss the HOA’s cross-appeal claiming that the trial court’s 

November 2016 order dissolving the preliminary injunction and denying the HOA’s request for a permanent 

injunction constituted a final appealable judgment, and that the HOA’s failure to timely appeal that order has 

deprived this Court of jurisdiction to consider the HOA’s challenge of that ruling. As we will explain further, 

we disagree with the Severances and deny their motion to dismiss by separate order issued 

contemporaneously with this decision.

3 Although the trial court refers to the date of its order as October 28, 2016, the actual date is November 1, 

2016.
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 9 of 10

to the trial court’s belief, its November 2016 order was not a final judgment 

because it specifically reserved the issue of damages for future determination

and did not otherwise expressly direct entry of judgment as to fewer than all the 

claims between these parties. No order of the trial court prior to the judgment 

issued on June 5, 2017, finally disposed of all claims as to all parties.4 

[11] It is well settled that a trial court has inherent power to reconsider an order or 

ruling if the action remains in fieri, or pending resolution. Pond v. Pond, 700 

N.E.2d 1130, 1135 (Ind. 1998). The trial court’s June 2017 judgment contains

erroneous findings and conclusions referencing the November 2016 ruling as a 

final appealable judgment, thus limiting the issues available for the trial court’s 

consideration. A judgment is clearly erroneous “if it applies the wrong legal 

standard to properly found facts.” Johnson v. Wysocki, 990 N.E.2d 456, 460 

(Ind. 2013). Because much of the trial court’s resolution of this case appears to 

be hinged on its mistaken belief that it was precluded from considering the 

merits of its prior order denying the permanent injunction, the appropriate 

remedy is to reverse the trial court’s judgment and remand this case for an 

evidentiary hearing to consider the merits of issuing a permanent injunction

 

4

Following the trial court’s November 2016 order dissolving the preliminary injunction and declining to 

enter a permanent injunction against the Severances, the HOA filed what it called a “Motion to Correct Error 

or in the Alternative Motion to Reconsider.” Appellants’ App. Vol. 2 at 199. Regardless, because there was 

no final judgment, the HOA’s self-styled motion was in fact a motion to reconsider and, contrary to the trial 

court’s conclusion here, its subsequent ruling on that motion could not itself be considered a final judgment 

pursuant to Indiana Appellate Rule 2(H)(4). Guardianship of Hurst, No. 45A03-1612-GU-2790, 2018 WL 

627290, at *2 (Jan. 31, 2018), opinion on reh’g; see Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind. Ct. App. 2016) 

(“motions to correct error are proper only after the entry of final judgment; any such motion filed prior to the 

entry of final judgment must be viewed as a motion to reconsider).
Court of Appeals of Indiana | Opinion 29A02-1708-PL-1695 | February 27, 2018 Page 10 of 10

against the Severances based on the facts and circumstances as they stand today 

and pursuant to current Indiana law.

5

 Accordingly, we reverse the trial court’s 

June 5, 2017 judgment and remand to the trial court for proceedings consistent 

with this opinion.

[12] Reversed and remanded.

Robb, J., and Bradford, J., concur.

 

5 On remand, we direct the trial court to consider Indiana Code Section 32-25.5-3-11, effective upon passage 

on April 12, 2017, which protects the authority of homeowners associations by preventing collateral attacks 

based upon specific board irregularities and nullifying affirmative defenses to covenant violations under 

certain circumstances.