Kay Morken v. Michael Koltz

• Court: Indiana Court of Appeals
• Decided: August 11, 2023
• Docket: 23A-PL-00295
• Status: Published

Opinion

FILED Aug 11 2023, 10:11 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Jason M. Kuchmay Maggie L. Smith Snyder, Morgan, & Kuchmay, LLP Darren A Craig Fort Wayne, Indiana Frost Brown Todd LLP Indianapolis, Indiana James A. Federoff Federoff Law, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kay E. Morken, August 11, 2023 Appellant-Defendant, Court of Appeals Case No. Third-Party Plaintiff 23A-PL-295 v. Appeal from the Steuben Circuit Court Michael L. Koltz, The Honorable Allen N. Wheat, Judge Appellee-Plaintiff, Third-Party Defendant Trial Court Cause No. 76C01-2006-PL-232

Opinion by Judge Vaidik Judges Mathias and Pyle concur.

Court of Appeals of Indiana | Opinion 23A-PL-295 | August 11, 2023 Page 1 of 5 Vaidik, Judge.

Case Summary [1] After years of disagreement over an easement on his property, Michael Koltz

sued his neighbor, Kay Morken, seeking a declaratory judgment, an injunction,

and damages. After Morken successfully defended against the claim, she sought

attorney’s fees under Indiana Code section 32-30-6-7, which addresses nuisance

actions. The court denied fees, and Morken now appeals. Finding that Morken

is entitled to fees under the statute, we reverse.

Facts and Procedural History [2] Koltz owns a home abutting Lake George in Fremont. The property includes

an easement granting several neighbors, including Morken, ingress and egress

to the lake. After Morken purchased her home in 2017, the parameters of the

easement became a source of friction. Specifically, Koltz planted landscaping

within the easement, which Morken contended obstructed her access to the

lake. Koltz refused to remove the landscaping, so Morken had it removed in

April 2022.

[3] Koltz then filed suit against her. The complaint alleged two counts. The first,

captioned “Declaratory Judgment,” sought a declaration from the court as to

the parties’ rights regarding the easement, specifically that Morken does not

have the right to remove landscaping from the easement, as well as an

injunction preventing her from doing so. Appellant’s App. Vol. II p. 38. The Court of Appeals of Indiana | Opinion 23A-PL-295 | August 11, 2023 Page 2 of 5 second, captioned “Nuisance,” cited Indiana Code section 32-30-6-7 and stated

that Morken’s “activities in removing the Landscaping and threats to remove

the Landscaping . . . constitute a nuisance” and requested damages. Id. at 40.

[4] In Morken’s response, she presented several counterclaims, similarly requesting

a declaration as to the parties’ rights, an injunction against Koltz, and damages.

Both parties eventually filed for summary judgment. The trial court granted

summary judgment for Morken, finding Koltz’s landscaping obstructed the

easement and ordering him to remove any remaining landscaping. A damages

hearing was held, and Morken requested attorney’s fees under Section 32-30-6-

7. The trial court awarded no attorney’s fees, finding in part that Koltz’s

nuisance claim did not request the alleged nuisance be abated or enjoined and

therefore Section 32-30-6-7 did not apply.1

[5] Morken now appeals on the issue of attorney’s fees.

Discussion and Decision [6] Morken challenges the trial court’s decision to deny her attorney’s fees.

Generally, a court’s decision to grant or deny an award of attorney’s fees is

reviewed for an abuse of discretion. Knowledge A-Z, Inc. v. Sentry Ins., 857

1 Morken also asked for attorney’s fees under Indiana’s frivolous-litigation statute, Ind. Code § 34-52-1-1, which the court denied. She does not challenge this decision on appeal.

Court of Appeals of Indiana | Opinion 23A-PL-295 | August 11, 2023 Page 3 of 5 N.E.2d 411, 423 (Ind. Ct. App. 2006), trans. denied. However, the court’s legal

conclusions are reviewed de novo. Id.

[7] Morken requested attorney’s fees under Section 32-30-6-7, which provides in

part,

(a) An action to abate or enjoin a nuisance may be brought by any person whose:

(1) property is injuriously affected; or

(2) personal enjoyment is lessened;

by the nuisance.

***

(d) A person that successfully defends an action under this section is entitled to reasonable costs and attorney’s fees incurred in defending the action.

“If a proper case is made, the nuisance may be enjoined or abated and damages

recovered for the nuisance.” Ind. Code § 32-30-6-8. Generally, a nuisance claim

contemplates an action designed to cease or lessen the defendant’s behavior. KB

Home Ind. Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 307 (Ind. Ct. App. 2010).

[8] Koltz contends, and the trial court found, that Morken is not entitled to fees

because Koltz’s complaint did not include a request to “abate or enjoin” a

nuisance under Section 32-30-6-7. We disagree.

Court of Appeals of Indiana | Opinion 23A-PL-295 | August 11, 2023 Page 4 of 5 [9] When determining the categorization of a claim, we “look beyond the labels

used by [the plaintiff] and look instead to the substance and central character of

the complaint, the rights and interests involved, and the relief demanded.”

Alvarado v. Nagy, 819 N.E.2d 520, 525 (Ind. Ct. App. 2004). Here, it is clear

from Koltz’s complaint that he was requesting an abatement of an alleged

nuisance. The first count, although not explicitly referencing nuisance, asks for

a declaration that Morken cannot remove the landscaping and an injunction

prohibiting her from doing so. He then alleges that exact behavior—removing

and threatening to remove the landscaping—is a nuisance, cites Section 32-30-

6-7, and asks for damages under that statute. Altogether, this is a request to

abate or enjoin a nuisance. Therefore, under Section 32-30-6-7 Morken is

entitled to fees for successfully defending against it. We reverse and remand for

the determination of appropriate attorney’s fees.

[10] Reversed and remanded.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 23A-PL-295 | August 11, 2023 Page 5 of 5