Roberts v. Owens

1

Sunnie Roberts, Appellant-Defendant, v. Curtis Owens, et al., Appellees-Plaintiffs.

No. 22A-PL-1562

Court of Appeals of Indiana

May 1, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Warrick Superior Court Trial Court Cause No 87D02-1706-PL-987 The Honorable Amy Steinkamp Miskimen, Judge

ATTORNEY FOR APPELLANT Verdelski V. Miller Newburgh, Indiana

ATTORNEY FOR APPELLEES April L. Edwards Boonville, Indiana

MEMORANDUM DECISION

Altice, Chief Judge.

Case Summary

[¶1] Sunnie Roberts appeals the judgment in favor of Curtis and Katherine Owens (collectively, Plaintiffs), on their complaint against her and her now-deceased husband, Jared^[1] (collectively, Defendants), for trespass and ejectment. Specifically, Sunnie argues that the evidence did not establish that Defendants trespassed on Plaintiffs' property and that the trial court erred in concluding that they failed to establish a claim of adverse possession on the disputed property.

[¶2] We affirm.

Facts and Procedural History

[¶3] On May 7, 2014, Plaintiffs purchased thirty-eight acres in Newburgh from David Roberts (David)^[2] with plans to live on the premises and operate a vineyard and winery. Prior to the sale, David hired Morley and Associates (Morley) to conduct a survey of the property and mark the boundaries.

[¶4] Plaintiffs' and Defendants' properties intersected at a particular point that had been marked on a plat map. Defendants' parcel was just north of Plaintiffs' property and was comprised of approximately five acres with a mobile home on the property. Defendants had rented their property from 2014 until they purchased it from Jeanne Morisette on April 6, 2016. That land had originally been owned by Wilder Oil Company (Wilder) that operated as a gas station dating back to 1957. Wilder conveyed the property to Morisette on October 29, 2008, which she then sold to Defendants.

[¶5] Sometime after Plaintiffs purchased the property, Ron Owens-Curtis's brother-purchased six of those thirty-eight acres on the east side of Plaintiffs' property. Curtis and Ron hired Morley to conduct an additional survey to establish new county tax parcel identification numbers and boundaries. Morley located the previous markers and set the monuments with 5/8-inch rebar. The rebar was driven into the soil, and above-ground wooden stakes were placed next to the monuments.

[¶6] During the last survey for Plaintiffs, Morley's associates used the parties' deeds and monuments to ensure that the "entire property ended up getting everything it was supposed to get." Transcript Vol. 2 at 8. Upon completion of the survey, it was discovered that various improvements including a fence and a nine-foot portion of a wooden shed, encroached from Defendants' property onto Plaintiffs' land. The partial fence-that did not enclose the property-was situated on Plaintiffs' property just south of the shed.

[¶7] The disputed property was approximately one-quarter acre. When Plaintiffs purchased the property, the area was overgrown. Curtis paid to have trash and other debris such as old TV's, broken lawnmowers, tires, and rims removed from a ditch located just south of Defendants' property.

[¶8] Shortly after Morley had placed survey pins on the property to mark the boundaries, Jared removed them and placed wooden stakes in the ground where he believed the proper boundaries were located. Jared drew images of male genitalia on the shed, threw bricks into the grass, and drove golf balls into the disputed area. Curtis also saw Jared pound wrenches into the ground that damaged Curtis's lawn mower when he mowed. Curtis was concerned that pieces of metal would be thrown from the mower that would hurt or kill someone. Curtis also repeatedly removed wood that Jared would stack in the disputed area.

[¶9] On occasion, Jared would intimidate Curtis and throw knives at the shed while Curtis was outside working on the property. Beginning in May 2015, Curtis began reporting Jared's activities to police that resulted in the filing of criminal trespass charges against Jared.^[3]

[¶10] Morley returned to the property on two separate occasions in 2017 to re-mark boundaries because the monuments and stakes had been removed. On April 18, 2017, Plaintiffs' attorney sent a letter and a copy of the Morley survey to Defendants, demanding that they remove the fence and trash from Plaintiffs' property. As that correspondence prompted no action, Plaintiffs filed a civil complaint for trespass and damages against Defendants on June 26, 2017.

[¶11] The trial court granted Plaintiffs' motion for default judgment on August 12, 2017, because Defendants did not formally answer the complaint. On November 9, 2017, Defendants moved to set aside the default judgment, and on February 23, 2018, they filed a complaint against Plaintiffs to quiet title in adverse possession. Defendants' complaint alleged, among other things, that they and their predecessors "have had normal and customary exclusive, complete, actual, open, notorious, and hostile, control over the property for more than twenty years." Defendants' Exhibit B. Defendants asserted that they demonstrated actual ownership of the property for that period, have paid all taxes thereon, and "their predecessors built a shed on the property being adversely possessed" . . . and requested that "title to the disputed property be quieted in their name." Id.

[¶12] On March 15, 2018, the trial court conducted a hearing on the motion to set aside the default judgment. The trial court granted the motion, finding that Defendants "responded in writing to deny the complaint for damages and trespass by serving the same on plaintiff's attorney, . . . but that [the] response was not filed with the court as it should have been" Appellants' Appendix Vol. 2 at 54. Finding, however, that Defendants had advanced a meritorious defense to Plaintiffs' claim, the trial court set aside the default judgment and determined that Defendants should have the opportunity to "defend against the complaint" and "pursue their [counter]claim of adverse possession." Id. at 55.

[¶13] When a bench trial commenced on April 4, 2022, the parties stipulated that Plaintiffs had paid the property taxes on their parcel (the 102 parcel) and that Defendants had paid taxes on their parcel (the 103 parcel) since their purchase of the property in 2016.

[¶14] Rather than having their own survey performed, Defendants relied on-over Plaintiffs' objection-several aerial photos to establish the boundaries. There was a disclaimer, however, on the Geoscience Information System (GSIS) website-where the photos were generated-stating that there was no "warranty concerning accuracy or merchantability," and that "no part of [the website] should be used as a legal description or document." Exhibit J at 11532. The purpose of the map and photos was "to display the geographic location of a variety of data sources frequently updated from local government and other agencies." Transcript Vol. 2 at 94-98. Sunnie admitted at trial that Plaintiffs placed her on notice about the encroachments in 2014 after the survey had been completed.

[¶15] Vance Fisher, a neighbor who lived close to both properties for over twenty years, testified that David's father maintained the disputed area from 1999 through 2004. Fisher indicated that for nearly sixteen years thereafter, the disputed area had become overgrown except for the immediate area where Defendants' mobile home is situated. Fisher testified that he never saw Jared or Sunnie maintain the disputed overgrown area, and he knew that Morley had conducted a survey for Plaintiffs. Fisher also observed Curtis remove trash and clean up the disputed area after Plaintiffs had purchased the property.

[¶16] David testified that he had lived on the property for many years during his childhood, and that Wilder had owned the adjoining property that Defendants eventually purchased from Morisette. David testified that Morisette approached him at some point and inquired about building a partial fence that would encroach on his property. Morisette wanted the fence to keep animals out of her garden. In exchange, Morisette promised to maintain the area and give David some of the vegetables from the garden. David testified that although he agreed to such an arrangement, he made it clear to Morisette that he was not relinquishing ownership of that property.

[¶17] Although Morisette initially honored the agreement, she stopped gardening after two years and the area became overgrown with weeds and a dumping ground for trash. David conveyed this information to Plaintiffs when they purchased the property, and he showed them the boundary lines that the Morley survey confirmed. David further testified that he and his father were the only individuals who had ever maintained the disputed property.

[¶18] Following the conclusion of the two-day trial, judgment was entered for Plaintiffs. The trial court's order stated that the evidence was sufficient to show that Defendants had trespassed on Plaintiffs' property and that the fence and shed should be removed. It also determined that because it was Jared who caused Plaintiffs to incur expenses for removing debris that had accumulated on the property, Sunnie was not responsible for those expenses. Finally, the trial court concluded that Defendants failed to establish the elements of their counterclaim for adverse possession of the disputed area.

[¶19] Roberts now appeals.

Discussion and Decision

I. Trespass

[¶20] In addressing Sunnie's contention that the evidence...