FOR PUBLICATION
ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEES:

MICHAEL H. MICHMERHUIZEN    DAVID VAN GILDER
PATRICK G. MURPHY    Van Gilder & Trzynka, PC
Barrett & McNagny LLP     Fort Wayne, Indiana
Fort Wayne, Indiana



     IN THE COURT OF APPEALS OF INDIANA

WEDGEWOOD COMMUNITY             )
ASSOCIATION, INC.,                   )        
     
                                                                    )

Appellant-Plaintiff,                 )
                                     )
vs.                                  )    No. 02A03-0204-CV-112
                                     )
ROBERT O. NASH and BARBARA NASH,     )
                                     )
Appellee-Defendants.                 )

    APPEAL FROM THE ALLEN SUPERIOR COURT, CIVIL DIVISION
    The Honorable Nancy Eshcoff Boyer, Judge
    Cause No. 02D01-0003-CP-470

    January 21, 2003

    OPINION - FOR PUBLICATION


MATHIAS, Judge
Wedgewood Community Association, Inc. (“Wedgewood Association”) appeals the Allen Superior Court’s determination that despite a restrictive covenant violation by Robert O. Nash (“Nash”), he was not required to remove a shed constructed in his yard. Wedgewood raises two issues on appeal, which we restate as:
I.    Whether the trial court clearly erred when it determined that Wedgewood’s claim for declaratory and injunctive relief in law and equity against Nash was defeated by the doctrine of unclean hands; and,

II.    Whether the trial court abused its discretion when it denied Wedgewood’s request for attorney fees.

We reverse.

Ex. Vol. I, Ex. F.
    In 1997, Wedgewood Association conducted a survey among the residents, asking each resident whether he or she was in favor of amending the Restrictive Covenants to allow outbuildings subject to certain construction standards. The survey provided that if more than seventy-five percent of the residents agreed to amend the Restrictive Covenants, the Association’s attorney would begin drafting an amendment. Less than seventy-five percent of the residents voted in favor of the proposed outbuilding amendment. Tr. p. 28.
In February of 2000, Nash erected an eight-foot by ten-foot garden shed in his backyard, without first submitting written plans to the Architectural Committee or receiving written approval from the Wedgewood Board of Directors or the Architectural Control Committee, all required steps pursuant to Article VI of the Wedgewood Place Restrictive Covenants. Wedgewood’s Board President Steve McMichael (“McMichael”) was immediately notified of the shed by a resident.
    Within one day of the erection of the shed, McMichael and Architectural Control Committee Chairperson Michael Tucker (“Tucker”) went to the Nash residence to discuss the shed. They knocked at the Nash residence door, but there was no answer. Later that same day, Tucker again went to the Nash residence, and knocked at the door. Again, there was no answer. Attorney Robert E. Doelling, Jr. then sent Nash a letter notifying Nash that he was in violation of a restrictive covenant. Nash contacted McMichael and arranged a meeting for February 26, 2000, at the Nash residence.
    At the meeting, McMichael and Nash reached an informal agreement whereby McMichael agreed to delay any action against Nash for forty-five days, and Nash would send a written response to the agreement by February 28, 2000. The response was to provide that if Nash could not obtain support of more than seventy-five percent of the neighborhood residents in favor of amending the Restrictive Covenants to allow such structures, then Nash would remove his shed by May 1, 2000. Nash failed to send any such written correspondence to McMichael. Additionally, while the Nash family began the survey, they did not complete it, and the final results were never tallied and distributed. Thereafter, Nash did not remove the shed from his yard, and never reached any subsequent agreement with Wedgewood Association.
    On March 31, 2000, Wedgewood Association filed a complaint against Nash for violating the Restrictive Covenants. Wedgewood Association requested “declaratory and injunctive relief in law and equity for breach of the Restrictive Covenants including but not limited to an Order requiring [Nash] to remove from the Premises said Shed and for judgment against [Nash], . . . , for court costs, attorney fees, and for all other relief as is just and proper in the premises.” Appellee’s App. p. 3. After briefing was complete, the trial court conducted a bench trial on January 23, 2002, and February 1, 2002. Pursuant to court order, the parties submitted Proposed Findings of Fact and Conclusions of Law on February 15, 2002. On March 26, 2002, the trial court entered its Order of Judgment, including Findings of Fact and Conclusions of Law.
With regard to the doctrine of unclean hands, the trial court made the following pertinent findings and conclusions:

17.    Prior to this litigation, and extending through the date of trial, current Wedgewood board member Dave Koenig (“Koenig”) has had located on his property in the backyard an unattached structure used in conjunction with an outdoor child’s play set.

18.    According to Koenig, the structure has sides, a door and a shingled roof. The structure, although located on stilts, is not attached to his residence and is a building. This playhouse is located at 6426 Postbrook Lane and is located within Wedgewood.

19.    An unattached child’s play structure with a roof and sides is also located at 7217 Woodmeadows Lane, which home is located within the boundaries of Wedgewood.

20.    In Koenig’s opinion, the structure located on his property does not violate the restrictive covenants because it is a child’s play structure, and has the sole purpose for children’s playing. However, upon questioning by the Court, Koenig agrees that if the same structure were removed from its stilts, placed on the ground and used to store garden tools, the structure could be in violation of the restrictive covenants.

21.    Nash’s remaining allegations of other covenant violations deal with trailers, boats, campers, satellite dishes, aerials and trucks.

. . . .

. . . .

There are, however, personal defenses available to Nash to an action in equity seeking to enforce restrictive covenants. These are estopple [sic], acquiescence and clean hands.

. . . .

    The structures located at 6426 Postbrook Lane and 7217 Woodmeadows Lane are unattached outbuildings. Wedgewood attempted to distinguish these structures on the basis that they had three sides, that they were children’s play structures, or that they were not “enclosed[.]” Nothing in the Restrictive Covenants defines an outbuilding as being a structure that is fully enclosed. Neither do the covenants differentiate and permit outbuildings on their use, that is storage versus child’s play.

    Webster’s Collegiate Dictionary, 10th Edition defines structure as “something that is constructed,”[ ] a building as a “roofed and walled structure[,]”[ ] an outbuilding as “a building separate from, but accessory to a main house[,]”[ ] and a shack as an “enclosed structure for a particular use.”

    Any of these definitions fit both the Nash’s [sic] shed and the children’s play houses currently located in Wedgewood.

    Both, then, are in violation of the Restrictive Covenants of Wedgewood. The structure located at 6426 Postbrook Lane is located on board member Koenig’s property. This violation existed both prior to, and at the time of the trial of this matter.

    The doctrine of unclean hands is an equitable tenet[,] which demands one who seeks equitable relief to be free from wrongdoing in the matter before the Court. Stewart v. Jackson, 635 N.E.2d 186, 189 (Ind. Ct. App. 1994). Although Indiana recognizes the ability to purge oneself of wrongdoing, which effectively restores the right to equitable relief, Wedgewood had not purged itself of the wrongdoing as of [the] date of trial. Id. at 190.

    As a result, Wedgewood’s claim is defeated on the basis of unclean hands.

    Wedgewood is precluded from seeking equitable relief because of its own violation of Article VI Section 7(a), specifically, the outbuildings located at 6426 Postbrook Lane and 7217 Woodmeadows Lane.

. . . .

    As to the Complaint originally filed by Wedgewood Community Association, Inc. against Barbara Nash, the Court dismisses Barbara Nash from that claim.

    As to Robert O. Nash, the Court DENIES Wedgewood Community Association, Inc.’s Petition for Injunctive Relief.

Appellant’s App. pp. 13-24. With regard to attorney fees, the following findings and conclusions are applicable:

44.    Wedgewood has incurred $28,616.74 in attorney’s fees and expenses in the prosecution of its claim against Robert and Barbara Nash. . . .

. . . .

Any finding of fact shall also be deemed a conclusion.

. . . .

    Both parties[’] requests for attorneys’ fees are DENIED.

. . . .

Appellant’s App. pp. 13-24. Wedgewood Association now appeals. Additional facts will be provided as necessary.

Id. (quoting Ballard v. Harman, 737 N.E.2d 411, 415-16 (Ind. Ct. App. 2000) (citation omitted)).

Appellant’s App. p. 56. Based upon this Restrictive Covenant and the fact that we conclude in Part I of this opinion that Wedgewood Association may enforce its restrictive covenant prohibiting outbuildings against Nash, we conclude that Wedgewood Association is entitled to trial court attorney fees and related costs and expenses.
    Nash argues that regardless of the validity of the covenants, the trial court never determined that Nash was violating the restrictive covenants. We disagree. After defining the words structure, building, outbuilding and shack, the trial court provided: “Any of these definitions fit both the Nash’s [sic] shed and the children’s play houses currently located in Wedgewood.” Appellant’s App. p. 11 (emphasis added). In the next paragraph of conclusions, the trial court found: “Both, then are in violation of the Restrictive Covenants of Wedgewood. The structure located at 6426 Postbrook Lane is located on board member Koenig’s property. The violation existed both prior to, and at the time of the trial of this matter.” Id. (emphasis added). The trial court’s use of the word “both” in the first cited paragraph refers to Nash’s shed and the children’s playhouses referred to throughout the case. The use of the word “both” in the second cited paragraph again refers to Nash’s shed and the children’s playhouses. The trial court clearly determined that Nash was in violation of the restrictive covenant prohibiting outbuildings.
    The trial court found that Wedgewood incurred $28,616.74 in attorney’s fees and expenses in the prosecution of its claim against Nash. Appellant’s App. p. 21. Therefore, as stated above, we conclude that pursuant to Amended Article VII, Section 26, Wedgewood is entitled to attorney fees and related costs and expenses from Nash.

SULLIVAN, Judge, concurring

The result which we reach today does not seem quite equitable or fair. It does, however, comport with the law as it currently exists.
    The conduct of Wedgewood, through McMichael and others, is not conduct which is prohibited by the Indiana doctrine of “unclean hands.” “Unclean hands” was the basis upon which the trial court made its determination. That doctrine does not equate with “acquiescence” or even a concept of “fair dealing” between a homeowner’s association (made up of the collective residents as governed by a Board of Directors) and a particular resident.
    Furthermore, although to assess Nash with attorney fees of $28,000 may seem disproportionate to the gravity of the matter in litigation, the controlling documents permit such award.
    Accordingly, I concur albeit somewhat reluctantly.