ILNews

Home day care presents first-impression

Jennifer Nelson
January 1, 2007
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The Court of Appeals ruled on a case of first impression involving whether a licensed child care facility constitutes residential or commercial use of the owner's residence.

In Jeannie Lewis-Levett v. Richard D. Day and Martha A. Day, 50A03-0705-CV-199, Lewis-Levett appealed the trial court's summary judgment ruling in favor of the Days. As owners and operators of Golfview Estates, the Days recorded covenants applicable to the lots there, which prevents buildings in the neighborhood being used for "any trade, business, manufacture or profession." Lewis-Levett began a licensed day care in her home in the neighborhood, caring for up to 12 children during the week. On her tax forms, she indicated 60 percent of her home is used for the day care.

The Days filed a complaint requesting a temporary and permanent injunction against Lewis-Levett's day care in her residence and attorney fees; Lewis-Levett filed a motion for summary judgment. The trial court granted summary judgment in favor of the Days and awarded attorney fees.

Lewis-Levett argued the trial court erred in granting summary judgment enjoining her from running the licensed day care in her home because a licensed day care is residential use of her home. She cited Stewart v. Jackson, 635 N. E. 2d 186, 193, where the Court of Appeals held that the operation of an unlicensed home day care constituted residential use and did not violate the restrictive covenants of its neighborhood.

The question of whether a licensed day care constitutes residential use is a matter of first impression for the court because Stewart is limited to unlicensed day care in homes. In Stewart, the court examined the number of children in the day care, its income, and the increase of traffic to determine whether it was residential use.

In this case, Lewis-Levett cares for 12 children, which means she could have 12 vehicles coming and going from her home throughout the day - more than normal for the neighborhood. She also uses 60 percent of her home for the business. Because the Indiana legislature has enacted extensive regulation of licensed day care homes that have more than six children, it shows them to be commercial enterprises.

The Court of Appeals affirmed the summary judgment enjoining Lewis-Levett from operating a licensed home day care. Public policy in favor of home day care is not without limits; although public policy favors home day care, such policy isn't violated by the enforcement of the restrictive covenants in this case, Judge Edward Najam wrote for the majority.

The Days cross-appealed the trial court ruling, saying it erred in not enjoining Lewis-Levett from having any type of child care in her home. The evidence showed she ran a licensed day care, so the trial court granted the relief requested in the amended complaint because the trial court did not have the case of "any" day care before it when ruling. The Court of Appeals denied the Day's cross appeal.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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