Court of Appeals of Indiana | Memorandum Decision 19A-PL-2070 | March 13, 2020 Page 1 of 13

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 APPELLANTS

Michael Ghosh

Carmel, Indiana

ATTORNEY FOR APPELLEE

Ryan C. Munden

Lafayette, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Saurabh Bagchi and Somali 

Chaterji,

Appellants-Defendants,

v.

Amberleigh Village 

Homeowners Association, Inc.,

Appellee-Plaintiff

March 13, 2020

Court of Appeals Case No.

19A-PL-2070

Appeal from the Tippecanoe 

Circuit Court

The Honorable Sean M. Persin, 

Judge

Trial Court Cause No.

79C01-1801-PL-18

Altice, Judge.

Case Summary

[1] Saurabh Bagchi and Somali Chaterji (collectively, Property Owners) appeal the 

trial court’s judgment in favor of the Amberleigh Village Homeowners 

Association, Inc. (the HOA), ordering Property Owners to modify the fence 
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they constructed around their front and back yards to comply with restrictive 

covenants of the subdivision in which they live. On appeal, Property Owners 

present two issues for our review, which we restate as: 

1. Did the trial court err when it determined that the HOA

rejected the Property Owners’ proposed plan for installation of a 

fence around their front and back yards?

2. Did the trial court err in concluding that the HOA, which 

waited over three years to provide the Property Owners with 

notice of the non-compliance of their fence with the restrictive 

covenants, did not acquiesce in the existence of the noncomplying fence?

[2] We affirm.

Facts & Procedural History

[3] Property Owners own one parcel in the Amberleigh Village subdivision in West 

Lafayette, Indiana. All parcels of land within Amberleigh Village are governed 

by the Amended Declaration of Covenants, Conditions and Restrictions of 

Amberleigh Village (the Covenants). The Covenants provide, in relevant part, 

as follows:

Section 6.2 Architectural Control. No building, outbuilding, 

mailbox, fence, satellite dish, wall or other structure, except 

original construction of Dwelling Units by or on behalf of the 

Declarant, shall be commenced, erected or maintained upon the 

Property, nor shall any exterior addition to or change or 

alteration therein, other than by the Declarant, be made until the 

plans and specifications showing the nature, kind, shape, 

height, materials, color and location of the same shall have 
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been submitted to and approved in writing as to harmony of 

external design and location in relation to surrounding structures 

and topography by the Declarant until the end of the 

Development Period, the Board of Directors may appoint three 

(3) or more representatives to an Architectural Committee. Any 

change in the appearance or color of any part of the exterior of a 

residence shall be deemed a change thereto and shall require the 

approval therefore as above provided. In the event that written 

approval is not received as required hereunder within thirty 

(30) days after complete plans and specifications have been 

submitted, approval will not be required and this Section will 

be deemed to be fully complied with.

Section 6.3 Fences. All fences will be similar in design to that 

attached as Exhibit B, except privacy fences, walls, or screening 

constructed directly adjacent to the dwellings [sic] rear patio, in 

which case they shall be no greater than 6 feet in height. The 

Architectural Committee shall review such request pursuant to 

the standards and procedures set forth in Section 6.2. The Owner 

shall maintain all fences in top quality condition, including 

replacement of damaged or rotten fence posts or panels. The 

[HOA] may enforce this provision by requiring either appropriate 

maintenance by the Owner or removal of the fence by the 

Owner. All courtyard homes must use a white vinyl decorative 

fence (approved by the Architectural Committee) constructed

directly adjacent to the dwelling’s rear patio.

Exhbits at 17-18 (emphases added). Exhibit B to the Covenants provided the 

following depiction:
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[4] In 2014, Property Owners contacted Steve Abston, then the president of the 

HOA, and informally inquired about installation of a fence around their 

property. Abston explained the specifications for installation of fences and 

advised Property Owners of the procedure for obtaining approval by the HOA. 

Abston also provided them with direct links to the Covenants and a request 

form for architectural approval.

[5] On or about June 2, 2014, Property Owners submitted their complete plans and 

specifications to the HOA outlining their intent to install an eight-foot fence 
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around the front and back of their property. Property Owners desired a higher 

fence for safety and security purposes. 

[6] Abston was president and sole member of the HOA from 2014 through the 

summer of 2017, and during his tenure he operated “as a one man show” as 

there were no other board members or an architectural review committee. 

Transcript Vol. 2 at 32. He thus had sole decision-making authority for the HOA 

to approve architectural plans submitted for review. 

[7] On June 23, 2014, Abston sent an email to Property Owners acknowledging 

receipt of their submission and informing them that the Covenants did not 

permit an eight-foot fence. He also requested additional time to investigate the 

matter further. On July 2, 2014, the Property Owners requested an update. 

Abston responded on July 7, 2014, explaining that he had reached out to two 

individuals who confirmed that an eight-foot fence was not permitted and that 

he was waiting to hear back from a third individual. Property Owners agreed to 

wait a little longer for an answer. On July 24, 2014, Property Owners followed 

up with Abston. In this communication, Property Owners stated that “[a] 5ft 

next to the road is ridiculous” and that “[m]ost fences in other neighborhoods 

are taller.” Exhibits at 55. Abston responded later that day, informing Property 

Owners that their proposed fence did not comply with the Covenants. He 

stated:

Sorry for the delayed response again. I have asked around as 

many knowing people as possible, and there is nothing in our 

architecture regulations that would allow the 8-ft fencing. The 
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only “standard” that we have has been untouched since the HOA 

was created in 2006. Right now, the HOA consists of me. So, I 

am the architecture committee, as well as all other committees. . . 

. I would say the best route, if you would still like to try and go 

for something above 6 feet,[1] would be to try and get attendance 

to a meeting.

* * *

I wish I had better news for you, right now, but this is where 

we’re at. Please let me know if you would like to do anything 

moving forward.

Exhibits at 55. According to Abston, his email to Property Owners was his 

“nice way” of saying that their fence proposal was denied, unless or until the 

plans were approved at an HOA meeting. Transcript Vol. 2 at 17. Property 

Owners and Abston exchanged a few more emails that evening regarding a 

possible HOA meeting in August with such being the final exchange regarding 

installation of a fence on Property Owners’ lot.

[8] In August 2014, Property Owners hired a contractor to construct a wooden 

fence according to their original submission to the HOA except with a fence

height of six feet rather than eight feet. The fence also was not “scalloped” on 

the top as required by the Covenants. Appellants’ Appendix at 58. Property 

Owners stipulate that they did not receive approval in writing prior to erecting 

1 The only allowance in the Covenants for a six-foot fence was for a privacy fence, wall, or screen “directly 

adjacent to the dwellings [sic] rear patio.” Exhibits at 17. Further, for “courtyard homes” in the subdivision,

which includes Property Owners’ home, fences must be constructed of a white, vinyl decorative fence. 
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the fence. The contractor worked for approximately two weeks to construct the 

six-foot fence around the front and back yards of the Property Owners’ lot. The 

fence is pictured below.

 
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There was no action taken by Abston on behalf of the HOA during construction 

of the fence or throughout his tenure as president of the HOA, nor were there 

any documented complaints or complaints made to Abston by other residents

in the neighborhood. Abston testified that he did not know that Property 

Owners installed the fence. Abston’s tenure as president of the HOA ended 

during the summer of 2017, when a new president was named.

[9] On January 26, 2018, the HOA filed a complaint against Property Owners, 

asserting that Property Owners violated the Covenants by installing a fence (1) 

without the HOA’s written approval and (2) which was not in compliance with 

the Covenants. The relief sought by the HOA was an order from the court

requiring Property Owners to remove their fence. Property Owners filed their 

answer and affirmative defenses on March 26, 2018. The trial court conducted 

a bench trial on January 29, 2019. Before the bench trial commenced, the 

parties filed a Joint Stipulation of Facts. On June 7, 2019, the trial court 

entered judgment in favor of the HOA and against the Property Owners based 

upon its determination that the HOA had rejected the Property Owners’ fence 

proposal. The court directed Property Owners to submit a plan to modify their 

fence such that it would be acceptable to the HOA. The court further ordered 

that if an agreement as to an acceptable fence could not be reached, the 

Property Owners were required to remove the fence no later than June 7, 2020. 

Property Owners filed a motion to correct error, which the trial court denied. 

Property Owners now appeal. Additional facts will be provided as necessary.
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Discussion & Decision

[10] The trial court issued findings of fact and conclusions of law pursuant to Ind.

Trial Rule 52. Under T.R. 52(A), the clearly erroneous standard applies to 

appellate review of facts determined in a bench trial with due regard given to 

the opportunity of the trial court to assess witness credibility. Trinity Homes, 

LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). Findings of fact are clearly 

erroneous when the record lacks any reasonable inference from the evidence to 

support them, and the trial court’s judgment is clearly erroneous if it is 

unsupported by the findings and conclusions which rely upon those findings. 

CSL Cmty. Ass'n, Inc. v. Meador, 973 N.E.2d 597, 600 (Ind. Ct. App. 2012), trans. 

denied. In establishing whether the findings or judgment are clearly erroneous, 

we consider only the evidence favorable to the judgment and all reasonable 

inferences to be drawn therefrom. Id. We cannot reweigh the evidence or 

judge the credibility of any witness and must affirm the trial court’s decision if 

the record contains any supporting evidence or inferences. Id. While we defer 

substantially to findings of fact, we do not do so for conclusions of law. Id. We 

evaluate conclusions of law de novo and owe no deference to a trial court’s 

determination of such questions. Id.

1. Rejection of Fence Proposal

[11] Property Owners argue that the evidence does not support the trial court’s 

finding that the HOA rejected their fence proposal. Specifically, they argue that 

because the HOA did not, in accordance with Section 6.2 of the Covenants,
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issue a written approval within thirty days after they submitted their plan, their 

plan was deemed approved.

[12] A restrictive covenant is an express contract between the grantor and the 

grantee that restrains the grantee’s use of his land. Villas West II of Willowridge 

Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008). As this 

court has before noted, “[o]ne purpose of restrictive covenants is to maintain or 

enhance the value of land ‘by controlling the nature and use of lands subject to 

a covenant’s provisions.’” Grandview Lot Owners Ass’n, Inc. v. Harmon, 754 

N.E.2d 554, 557 (Ind. Ct. App. 2001). Although the law does not favor 

restrictive covenants, the contractual nature of these restrictions has led courts 

to enforce them in equity as long as the restrictions are unambiguous and do 

not violate public policy. Hrisomalos v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct. 

App. 1992). 

[13] Per the parties’ stipulation of facts, the court noted that Property Owners 

formally submitted complete plans and specifications to Abston for approval. 

Although they were provided with the specifications for fences as set out in the 

Covenants, Property Owners submitted a proposal for an eight-foot fence, with 

a straight, not scalloped top edge, around both their front and back yards. The 

proposed fence did not comply with the Covenants in any respect.

[14] On June 23, 2014, about three weeks after Property Owners submitted their 

plans, Abston responded that he could not find “any allowance in the 

regulations” for an eight-foot fence. Exhibits at 57. Abston asked for more time 
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to investigate the matter and determine whether it would be possible to 

accommodate their request for an eight-foot fence. Property Owners agreed to 

give Abston more time. After Abston spoke with at least three other people, he 

informed Property Owners that their fence proposal did not meet the 

Covenants. 

[15] This evidence demonstrates that within the allotted thirty-day period for a 

response to their proposal, Abston notified Property Owners that an eight-foot 

fence was not permitted under the Covenants. Thus, rather than issuing a 

written approval, Abston issued a written denial of Property Owners’ fence 

proposal. Property Owners granted Abston additional time to find a way 

around the restrictive covenant that prohibited their proposed fence. 

Ultimately, after talking with others in the neighborhood, Abston told Property 

Owners that there was no way around the covenant and confirmed what he 

originally communicated to them that an eight-foot fence was not allowed.

2

 

Based on the record, we conclude that the trial court did not err in finding that 

Property Owners proposed fence plan “was not accepted by the HOA.” 

Appellants’ Appendix at 13.

2 To the extent Property Owners argue that the HOA did not reject their proposed placement of the fence or 

its design because they were only informed that the fence could not be eight feet in height, we disagree. 

There is nothing in the Covenants that required Abston to identify every aspect of the fence that was not in 

compliance therewith. Moreover, the Covenants clearly set out the specifications for fences as to placement 

and design and the Property Owners’ proposed fence obviously did not comply with those specifications.
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[16] We also note that the fence ultimately constructed on Property Owners’ lot was 

not the fence described in the plans that they submitted for approval. While 

Property Owners claimed that they had discussions with Abston about going 

ahead with the original plans except with a height of six feet, Abston did not 

remember any such conversations. To credit Property Owners’ claim, we 

would have to judge the credibility of the witnesses, which we will not do. See 

Meador, 973 N.E.2d at 600. In any event, it remains that the plans and 

specifications for the fence that was erected on Property Owners’ lot were never 

formally submitted for the HOA’s approval. 

2. Acquiescence

[17] Property Owners argue that the trial court erred in not finding laches, waiver, or 

acquiescence by the HOA given that the HOA waited three years to confront 

them about their fence and nearly four years to file suit. Property Owners assert 

that the fact that Abston never noticed the fence following its installation 

“seemed rather suspect.” Appellants’ Brief at 12. Indeed, during the bench trial, 

the trial court questioned Abston about his claims that he did not know about 

the fence and that, although he lived in the neighborhood, he had not seen it in 

the three years since it was installed. Nevertheless, the trial court, 

acknowledging that it was “a close call,” ultimately concluded that the HOA 

did not acquiesce in Property Owners’ construction of the non-compliant fence. 

Appellants’ Appendix at 13. To address Property Owners’ argument would 

require that we reweigh the evidence, a task that we will not undertake upon 

appeal. See Meador, 973 N.E.2d at 600.
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[18] Moreover, we note that Section 10.2 of the Covenants provides, in pertinent 

part:

No delay or failure by any person to enforce any of the 

restrictions or to invoke any available remedy with respect to a 

violation or violations thereof shall under any circumstances be 

deemed or held to be a waiver by that person of the right to do so 

thereafter, or an estoppel of that person to assert any right 

available to him upon the occurrence, recurrence or continuation 

of any violation or violations of the restrictions. 

Exhibits at 31. Nonwaiver clauses such as this are generally enforced in 

Indiana. See, e.g., Johnson v. Dawson, 856 N.E.2d 769, 774 (Ind. Ct. App. 2006). 

Hence, pursuant to Section 10.2, the HOA may enforce the Covenants against 

Property Owners despite that it has been more than four years since they 

erected the fence that does not comply with the Covenants. Property Owners 

are barred from raising the equitable defenses of laches, waiver, and 

acquiescence. See id. (holding that nonwaiver provision permitted enforcement 

of restrictive covenant despite prior violations by other landowners).

Judgment affirmed.

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