Heather M. (Varner) France v. Mary Sparling (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2018
• Docket: 85A02-1710-PL-2472
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 26 2018, 6:05 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Katrina M. Lynn R.P. Fisher Lynn and Stein, P.C. Fisher & Ireland Wabash, Indiana Wabash, Indiana

IN THE COURT OF APPEALS OF INDIANA

Heather M. (Varner) France, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 85A02-1710-PL-2472 v. Appeal from the Wabash Circuit Court Mary Sparling, The Honorable Robert R. Appellee-Plaintiff McCallen, III Trial Court Cause No. 85C01-1609-PL-593

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018 Page 1 of 4 [1] Heather France appeals the trial court’s orders granting Mary Sparling’s motion

to dismiss France’s adverse possession counterclaim and entering judgment for

Sparling on Sparling’s trespass complaint against France. Finding that the

motion to dismiss should not have been granted and that France is entitled to

her day in court, we reverse and remand for further proceedings.

Facts [2] In July 2012, France purchased her Wabash home, which includes a fence,

pool, permanent shed, and an addition on the back of the home. All of these

features were maintained by France’s predecessors in title and have continued

to be maintained by France. She has also paid property taxes on this parcel of

land, as did her predecessors.

[3] In May 2016, a land survey was conducted. The surveyor learned that the

fence, permanent wood shed, part of the addition to the back of the house, and

most of the pool actually sit on part of the abutting tracts of land owned by

France’s neighbors. Sparling is one of those neighbors; her forty-acre tract

abuts France’s property to the west. At some point following the survey,

Sparling demanded that France remove the fence, shed, and pool from her

property. France refused to do so.

[4] On September 8, 2016, Sparling filed a complaint alleging that France

committed trespass by having the fence, shed, and pool located on Sparling’s

property. On October 20, 2016, France filed her answer, in which she admitted

that Sparling “holds legal title of the property” on which the fence, shed, and

Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018 Page 2 of 4 pool are located. Appellant’s App. Vol. II p. 21. Together with the answer,

France filed a counterclaim, arguing that she owns the property by adverse

possession and seeking to quiet title in her favor.

[5] The trial began on August 3, 2017. Sparling presented evidence on her

complaint and rested. Her attorney then moved to dismiss France’s

counterclaim pursuant to Indiana Trial Rules 12(B)(6) and 12(H). The trial

court granted the motion and entered judgment in Sparling’s favor on the

complaint. France was not permitted to offer any evidence to support her

defense or counterclaim. She now appeals.

Discussion and Decision [6] France first argues that the trial court erroneously dismissed her counterclaim

for adverse possession. A motion to dismiss for failure to state a claim tests the

legal sufficiency of the claim rather than the facts supporting it. E.g., Mainstreet

Prop. Group, LLC v. Pontones, 97 N.E.3d 238, 243 (Ind. Ct. App. 2018). We

apply a de novo standard of review to the trial court’s ruling, viewing the

pleadings in the light most favorable to the nonmovant, with every reasonable

inference construed in that party’s favor. Id.

[7] In this case, the trial court dismissed the adverse possession counterclaim based

on what it found to be France’s “conclusive and binding judicial admission[]”

in her answer that Sparling holds the legal title to the property. Tr. p. 19. We

cannot agree with this conclusion. Initially, we note that to grant the motion to

dismiss and enter judgment in favor of Sparling on this basis is to countenance a

Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018 Page 3 of 4 type of “gotcha” litigation that we do not condone or tolerate. E.g., Pinkowski v.

Calumet Twp. of Lake Cty., 852 N.E.2d 971, 980 (Ind. Ct. App. 2006).

[8] Moreover, while France did state that Sparling holds the legal title to the

property, that statement was paired with a counterclaim in which France

claimed to be the rightful owner of the property by virtue of adverse possession.

It is apparent, when considering the entirety of this pleading, that France

intended to admit only that Sparling is the title holder of record while

maintaining that France herself is the legal owner of the property based on

adverse possession, seeking to quiet title in her own favor. Given that we must

view the pleadings in the light most favorable to France, with every reasonable

inference construed in her favor, we believe that Sparling’s motion to dismiss

the adverse possession counterclaim should have been denied.

[9] As France’s adverse possession counterclaim survives, she is entitled to her day

in court to pursue that counterclaim and defend against Sparling’s trespass

claim. Therefore, judgment should not have been entered in Sparling’s favor

and France should have been allowed to present her evidence and make her

case. We reverse and remand for further proceedings.

[10] The judgment of the trial court is reversed and remanded for further

proceedings.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018 Page 4 of 4