Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 1 of 16

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Shaun T. Olsen

OlsenCampbell Ltd.

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Ray L. Szarmach

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Castlewood Property Owners 

Association, Inc.,

Appellant-Plaintiff,

v.

Leticia Guerra-Danko,

Appellee-Defendant.

May 13, 2016

Court of Appeals Case No.

45A03-1508-PL-1105

Appeal from the Lake Superior 

Court

The Honorable William E. Davis, 

Judge

Trial Court Cause No.

45D05-1007-PL-62

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 2 of 16

[1] Castlewood Property Owners Association, Inc. (Castlewood) appeals the trial 

court’s ruling in favor of Leticia Guerra-Danko on Castlewood’s complaint for 

declarative and injunctive relief. Guerra-Danko is a homeowner in the 

Castlewood subdivision who added siding to her home before obtaining 

approval from the Architectural Review Committee (ARC) and refused to 

remove it after the ARC refused to approve the siding. Finding a dearth of 

evidence establishing that the siding would negatively affect home values in the 

neighborhood or that it presented aesthetic problems, we affirm.1 

Facts

[2] Castlewood is a subdivision with Protective Covenants that run with the land. 

Section 12 of the Protective Covenants provides as follows:

ARCHITECTURAL CONTROLS. No building . . . shall be 

commenced, erected, or maintained, nor shall any change or 

alteration therein be made except interior alterations, until the 

construction plans and specifications, showing the nature, kind, 

shape, height and materials, color scheme, location on Lot and 

approximate cost . . . shall have been submitted to and approved 

in writing by the Architectural Review Committee. The 

Architectural Review Committee shall, in its sole discretion, have 

the right to refuse to approve any such construction plans or 

specifications . . . for aesthetic or other reasons and in so passing 

upon such construction plans . . . the Architectural Review 

Committee shall have the right to take into consideration the 

suitability of the proposed Building . . . with the surroundings, 

 

1 While the majority of the Court agrees that this appeal should be resolved in favor of Guerra-Danko, we do 

so for different reasons.
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 3 of 16

and the affect [sic] of the Building . . . on the outlook from 

adjacent or neighboring properties.

Appellant’s App. p. 26. Among the purposes of the Protective Covenants are: 

to protect each and every Owner . . . against such use of Lots in 

This Subdivision as may depreciate the value of their property; to 

guard against the erection thereon of buildings built of improper 

or unsuitable materials . . . . It is understood and agreed that the 

purpose of architectural control is to secure an attractive 

harmonious residential development having continuing appeal.

Id. at 20. Castlewood claims that since 1998, it has not allowed the use of vinyl 

or aluminum siding on residences, but nothing explaining this prohibition is 

provided in writing to new homeowners. 

[3] In May 2009, Guerra-Danko purchased a residence in Castlewood. In October 

2009, Guerra-Danko discovered termite damage in the residence and 

determined that the cedar siding on the exterior of her residence needed to be 

replaced. She proceeded with plans to replace the siding, including obtaining a 

permit and purchasing the siding, but did not submit a request to the 

Architectural Review Committee (ARC) before construction began. GuerraDanko selected “rough cedar finish siding,” which is molded from cedar 

clapboards, but evidently is classified as vinyl siding.2 Appellee’s Br. p. 2.

 

2

In the decades after it was first introduced in the 1950s, vinyl siding had many cosmetic problems. Since 

then, however, “[o]ngoing changes in the product’s chemistry and installation techniques have improved its 

acceptance and furthered its acceptance by builders and homeowners. In fact, vinyl has captured 32 percent 

of the U.S. siding market for new homes, with no end in sight to its growing popularity.” Mark Feirer, For 
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[4] The President of Castlewood, Christine McCulloch, noticed a dumpster in 

Guerra-Danko’s driveway and sent her an email questioning what was 

occurring at the residence. McCulloch and Guerra-Danko engaged in several 

conversations, in person and over email, and eventually Guerra-Danko 

submitted a request to the ARC for approval of the siding. The ARC, without 

holding a meeting, offering Guerra-Danko an opportunity to make her case, or 

even holding a vote that was memorialized in a writing, denied the request on 

October 30, 2009. 

[5] On July 26, 2010, Castlewood filed a complaint against Guerra-Danko, seeking 

a declaration that she had violated the Protective Covenants, an injunction 

requiring compliance with the Protective Covenants, and attorney fees and 

costs. Castlewood filed a motion for summary judgment on February 13, 2012, 

which the trial court denied on May 18, 2012, finding multiple issues of fact 

preventing summary judgment. On May 29, 2015, the trial court held a bench 

trial on the complaint, and on July 7, 2015, the trial court entered judgment in 

favor of Guerra Danko, finding as follows:

[a]fter a review of all the facts and circumstances of this matter 

the Court has determined that the Plaintiff has failed to prove by 

 

the Love of Vinyl Siding, THIS OLD HOUSE, http://www.thisoldhouse.com/toh/article/0,,266296,00.html (last 

visited Mar. 14, 2016). Indeed, the “vast improvements” in technology causes vinyl siding to have a 

“positive effect” on home values in most areas. Fran J. Donegan, Vinyl Siding, THIS OLD HOUSE, 

http://www.thisoldhouse.com/toh/article/0,,213532,00.html (last visited Mar. 14, 2016). Typically, new 

vinyl siding products “have a low-gloss finish that more closely resembled painted wood. Most 

manufacturers also offer realistic-looking grain patterns and have improved the look of trim pieces. . . . Those 

with a simulated wood grain are meant to imitate rough-sawn wood that’s been stained.” Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 5 of 16

a greater weight of the evidence that the covenants here are 

unambiguous and/or do not violate public policy.

Appellant’s App. p. 14. Castlewood now appeals the denial of its summary 

judgment motion and the final judgment entered in favor of Guerra-Danko.

Discussion and Decision

I. Summary Judgment

[6] First, Castlewood argues that the trial court should have granted its motion for 

summary judgment. Our standard of review on summary judgment is well 

settled:

We review summary judgment de novo, applying the same 

standard as the trial court: “Drawing all reasonable inferences in 

favor of . . . the non-moving parties, summary judgment is

appropriate ‘if the designated evidentiary matter shows that there 

is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A 

fact is ‘material’ if its resolution would affect the outcome of the 

case, and an issue is ‘genuine’ if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[7] In this case, there were multiple issues of material fact rendering summary 

judgment inappropriate. Among other things, the following issues were 

disputed: whether vinyl siding is, in fact, a prohibited item pursuant to the 
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Protective Covenants; and whether the ARC’s application of the Protective 

Covenants to Guerra-Danko’s situation was unreasonable. Indeed, Castlewood 

itself concedes that “whether or not an [ARC’s] approval was reasonable is a 

question of fact to be determined in light of the surrounding circumstances.” 

Appellant’s Br. p. 22. Consequently, we decline to reverse the trial court’s 

order denying Castlewood’s summary judgment motion.3

II. Final Judgment

[8] Castlewood also contends that the trial court erroneously granted judgment in 

favor of Guerra-Danko following the bench trial. Initially, we note that because 

Castlewood is appealing from a negative judgment, it must establish that the 

trial court’s judgment is contrary to law. Pinnacle Healthcare, LLC v. Sheets, 17 

N.E.3d 947, 953 (Ind. Ct. App. 2014). A judgment is contrary to law only if 

“the evidence in the record, along with all reasonable inferences, is without 

conflict and leads unerringly to a conclusion opposite that reached by the trial 

court.” Id.

[9] It appears that Indiana law is silent regarding the amount of deference to be 

afforded to a decision of an ARC, or similar homeowner’s association-related 

entity, that certain residential modifications should or should not be permitted. 

Castlewood suggests that we apply a reasonableness standard, citing to caselaw 

 

3 The trial court later denied a summary judgment motion filed by Guerra-Danko, which further 

demonstrates the presence of issues of material fact rendering a trial necessary.
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from multiple other jurisdictions in support. See, e.g., Bailey Dev. Corp. v. 

MacKinnon-Parker, Inc., 397 N.E.2d 405, 411-12 (Ohio Ct. App. 1977) (holding 

that subdivision’s decisions about building restrictions “must be measured 

against the standards of good faith and reasonableness”); LeBlanc v. Webster, 483 

S.W.2d 647, 649 (Mo. Ct. App. 1972) (finding that an ARC’s consent to or 

rejection of residential alterations must be reasonably exercised). We agree that 

a reasonableness standard is appropriate, and will now consider whether, in this 

case, the ARC’s decision was reasonable.

[10] Initially, we note that the so-called “prohibition” against vinyl siding is not a 

policy that has been memorialized in a writing. There was evidently a 

neighborhood agreement reached in 1998 to that effect, but homeowners 

purchasing residences in Castlewood since 1998 have no way of knowing about 

this informal prohibition. We do not go so far as to require that community 

guidelines such as this vinyl siding prohibition be written and provided to all 

community members, but we certainly believe that it would be the better 

practice to do so.

[11] As noted above, among the purposes of the Protective Covenants are desires to 

protect the value of homes in the neighborhood and to maintain harmonious 

aesthetics in the Castlewood community. In this case, there was absolutely no 

evidence presented, expert or otherwise, remotely tending to show that GuerraDanko’s selected siding would have a negative effect on property values or that 

it did not otherwise mesh with the neighborhood aesthetic. 
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[12] Castlewood’s only two witnesses were Guerra-Danko and McCulloch. 

McCulloch testified that, in deciding whether to approve a requested 

modification, the ARC considers how the proposed modification would 

“affect[] the values of our homes and our community.” Tr. p. 79. She 

admitted, however, that no one on the ARC is a realtor or in any way involved 

in the real estate business. Tr. p. 88-92 (testifying that the ARC was comprised 

of a flight attendant, an engineer, an administrative assistant, an employee of a 

car dealership, and a teacher). Castlewood offered no testimony from anyone 

involved with the real estate business in an effort to establish that vinyl siding 

would have a negative effect on home values in the neighborhood. And 

McCulloch herself did not testify as to why, specifically, Guerra-Danko’s siding 

presented an aesthetic problem. This dearth of evidence leads unerringly to a 

conclusion that the ARC did not exercise its powers under the Protective 

Covenants in a reasonable manner. We certainly do not find that the trial 

court’s order entering judgment in favor of Guerra-Danko is contrary to law. 

Consequently, Castlewood’s appeal is unavailing.

[13] The judgment of the trial court is affirmed.

May, J., concurs in result with separate opinion.

Brown, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 9 of 16

ATTORNEY FOR APPELLANT

Shaun T. Olsen

OlsenCampbell Ltd.

Merrillville, Indiana

ATTORNEY FOR APPELLEE

Ray L. Szarmach

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Castlewood Property Owners 

Association, Inc.,

Appellant-Plaintiff,

v.

Leticia Guerra-Danko,

Appellee-Defendant.

Court of Appeals Case No.

45A03-1508-PL-1105

May, Judge, concurring in result.
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 10 of 16

[14] I would affirm the judgment in favor of Guerra-Danko, but I believe she was 

entitled to summary judgment. Accordingly, I concur in the result only.

[15] At the heart of this dispute is a covenant restricting how an owner may use her 

property. “A restrictive covenant is an express contract between grantor and 

grantee that restrains the grantee’s use of land.” Harness v. Parkar, 965 N.E.2d 

756, 760 (Ind. Ct. App. 2012). Covenants are “used to maintain or enhance the 

value of land” by controlling such aspects as “what may be built on the land 

(fence or above ground pool), how the land may be used (private or 

commercial), and alienability of the land.” Id. at 761. 

[16] Because a covenant is a contract, we interpret covenants using the same rules of 

construction. Id. If we must interpret covenants, “they are to be strictly 

construed, and all doubts should be resolved in favor of the free use of property 

and against restrictions.” Id. We must determine the intent of those who 

drafted the covenant from “the specific language used and from the situation of 

the parties when the covenant was made.” Id. We must consider the covenant 

in its entirety and construe the provisions in a manner that harmonizes them, 

rather than one that renders some terms ineffective or meaningless. Id. 

[17] “[M]atters of contract interpretation are particularly well-suited for de novo

appellate review, because they generally present questions purely of law.” In re 

Indiana State Fair Litigation, --- N.E.3d ----, 2016 WL 348155 *2 (Ind. 2016) 

(internal citations and quotations omitted). When ambiguity arises from the 

language used in the contract, then the determination of its meaning is a 
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 11 of 16

question of law for the court. AM General LLC v. Armour, 46 N.E.3d 436, 440 

(Ind. 2015). 

[18] The full text of the covenant at issue provides:

12. ARCHITECTURAL CONTROLS. No building, fence, 

wall or other structure shall be commenced, erected, or 

maintained, nor shall any change or alteration therein be made 

except interior alterations, until the construction plans and 

specifications, showing the nature, kind, shape, height and 

materials, color scheme, location on Lot and approximate cost of 

such Building or other Structure, and the grading plan (including 

a stake survey showing the elevation of all four corners of the 

Lot) and the landscape plan of the Lot to be built upon shall have 

been submitted to and approved in writing by the Architectural 

Review Committee. The Architectural Review Committee shall, 

in its sole discretion, have the right to refuse to approve any such 

construction plans or specifications, grading plan, or landscape 

plan, for aesthetic or other reasons and in so passing upon such 

construction plans and specifications, grading plan, or landscape 

plan, the Architectural Review Committee shall have the right to 

take into consideration the suitability of the proposed Building or 

other Structure with the surroundings, and the affect [sic] of the 

Building or other Structure on the outlook from adjacent or 

neighboring properties. In no instance shall a Building or a 

design identical to an adjacent Building be permitted except as 

permitted by the Architectural Review Committee. 

(App. at 26.) 

[19] In its order denying summary judgment to Castlewood, the court noted:

It can not [sic] be said that the Covenants prevent replacing 

damaged siding without approval of the Architectural Review 

Committee [ARC] as a matter of law. The section in question 
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Clause IV 12 deals with construction of buildings, structures, and 

walls. It speaks of grading, and landscaping, and designs, and 

plans. But [it] is Moot [sic] as to replacing siding or anything else 

on the structure that is already there.

(Id. at 13.) When denying summary judgment to Guerra-Danko, the court 

found “there remain genuine issues of material fact that should be resolved by 

the fact finder.” (Id. at 8.) Indeed, even after trial, the court found Castlewood 

“failed to prove by a greater weight of the evidence that the covenants here are 

unambiguous . . . .” (Id. at 14.) 

[20] I agree there were many questions of fact that could have been determined in 

this case.4 But those questions of fact were not material to the dispositive issue 

– whether the covenant required Guerra-Danko to obtain approval of the ARC 

prior to replacing her siding. See In re Indiana State Fair Litigation, 2016 WL 

348155 (“The meaning of a contract is a question for the factfinder, precluding 

summary judgment, only where interpreting an ambiguity requires extrinsic 

evidence.”). 

[21] I believe the trial court correctly determined Paragraph 12 was ambiguous as to 

whether it applied only to new buildings or structures.5 Because all doubts 

 

4

Indeed, my colleague’s opinion addresses one question of fact: whether the ARC exercised its power in a 

reasonable manner. In concluding the ARC did not act reasonably, Judge Baker notes the record contains no 

evidence the neighborhood would experience a negative financial or aesthetic impact because of the siding 

Guerra-Danko selected. See Slip op. at 7, 8. Because the record is silent as to the history of and 

improvements to vinyl siding, I would omit footnote 1. See id. at 3. 

5 Castlewood notes Wedgewood Cmty. Ass’n, Inc. v. Nash, 781 N.E.2d 1172 (Ind. Ct. App. 2003), which 

involved a similarly worded covenant. The issue in that case, however, was whether the doctrine of unclean 
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 13 of 16

about the meaning of a covenant are to be “be resolved in favor of the free use 

of property and against restrictions,” Harness, 965 N.E.2d at 761, I would 

construe the paragraph against Castlewood and hold Guerra-Danko did not 

need ARC approval before replacing her siding.

[22] For all these reasons, I respectfully concur in the result.

 

hands prohibited Wedgewood from enforcing the covenant. Neither Wedgewood nor Nash asserted the 

covenant was ambiguous. Wedgewood therefore does not control. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 14 of 16

I N T H E

COURT OF APPEALS OF INDIANA

Castlewood Property Owners 

Association, Inc.,

Appellant-Plaintiff,

v.

Leticia Guerra-Danko,

Appellee-Defendant.

Court of Appeals Case No.

45A03-1508-PL-1105

Brown, Judge, concurring in part and dissenting in part.

[23] Although I concur with Judge Baker’s conclusion to affirm the trial court’s 

decision denying Castlewood’s summary judgment motion, I respectfully 

dissent from his conclusion that the court’s judgment in favor of Guerra-Danko 

is not contrary to law. The court ruled in its order of July 7, 2015, that 

Castlewood “has failed to prove by a greater weight of the evidence that the 

covenants here are unambiguous and/or do not violate public policy.” 

Appellant’s Appendix at 14. Initially, I note that in reviewing the record I 

could not find any matters of public policy which were litigated at trial, and 
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indeed the court did not suggest any specific tenet of public policy which was 

violated by the Protective Covenants and specifically Section 12 therein. 

Accordingly, I do not believe that public policy provides a basis on which to 

rule in favor of Guerra-Danko.

[24] Regarding the court’s conclusion that Section 12 was ambiguous, I disagree. 

That section states in relevant part that: 

No building, fence, wall or other structure shall be commenced, 

erected, or maintained, nor shall any change or alteration therein be 

made except interior alterations, until the construction plans and 

specifications, showing the nature, kind, shape, height and 

materials . . . shall have been submitted to and approved in 

writing by the Architectural Review Committee. 

Appellant’s Appendix at 26 (emphases added). In my view, Section 12 

unambiguously requires that projects to maintain, change, or alter buildings, 

except for interior alterations, be reviewed and approved by the ARC and that 

materials used are among the factors taken into consideration by the ARC in 

reviewing such projects.

[25] Judge Baker reasons that courts should review decisions of the ARC under a 

reasonableness standard and concludes that there was a “dearth of evidence” 

presented at trial by Castlewood regarding the bases for its decision, which 

“leads unerringly to a conclusion that the ARC did not exercise its power under 

the Protective Covenants in a reasonable manner.” Supra at 8. However, 

McCulloch testified that in 1998, eleven years prior to the facts leading to this 

suit, the ARC conducted a survey of the homeowners asking whether vinyl 
Court of Appeals of Indiana | Memorandum Decision 45A03-1508-PL-1105 | May 13, 2016 Page 16 of 16

siding should be allowed in the neighborhood, and the results of the survey 

showed that a majority of homeowners believed vinyl siding should not be 

allowed. (See Transcript at 18, 22) The ARC thereafter enforced such a 

prohibition, including on two previous occasions. (Transcript at 22) In this

regard, Judge Baker observes that “homeowners purchasing residences in 

Castlewood since 1998 [had] no way of knowing about this informal 

prohibition.” Id. at 7. Had Guerra-Danko brought the matter before the ARC 

prior to beginning the project, as required by Castlewood’s Protective 

Covenants, she would have learned of this. Further, it is undisputed that on 

September 16, 2009, prior to the commencement of the project, Guerra-Danko 

received a letter from Castlewood which specifically stated that “[a]ny 

structural changes or changes to the outside of a home, siding, fences, pools, 

etc., must be submitted and approved by the [ARC].” Exhibit 10 (emphasis 

added). Under such circumstances, I cannot say that the ARC’s decision to 

prohibit Guerra-Danko from using vinyl siding on her home was unreasonable. 

[26] I would find that the court’s July 7, 2015 order is contrary to law and would 

reverse and remand with instructions to enter judgment in favor of Castlewood 

as requested in its complaint.