MLS Enterprises, LLC v. Adam R Norman

• Court: Indiana Court of Appeals
• Decided: May 4, 2023
• Docket: 22A-PL-02755
• Status: Published

Opinion

FILED May 04 2023, 9:11 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES James G. Pittman ADAM R. NORMAN AND Bedford, Indiana MATTHEW A. NORMAN David J. Theising Harrison & Moberly, LLP Indianapolis, Indiana Pamela J. Hensler Mallor Grodner LLP Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

MLS Enterprises, LLC, May 4, 2023 Appellant-Plaintiff/Counterclaim Court of Appeals Case No. Defendant, 22A-PL-2755 Appeal from the Lawrence Circuit v. Court The Honorable Erik C. Allen, Adam R. Norman and Special Judge Matthew A. Norman, Trial Court Cause No. Appellees-Defendants/ 47C01-2006-PL-699 Counterclaimants/Third-Party Plaintiff

Opinion by Judge Bailey Judges Brown and Weissmann concur.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 1 of 13 Bailey, Judge.

Case Summary [1] MLS Enterprises (“MLS”) and farmers Adam and Matthew Norman (“the

Normans”) possess adjoining properties in Lawrence County. MLS obtained a

survey revealing an approximately one-quarter acre discrepancy between its

deed boundary and a fence boundary, with one fence line deviation favoring

MLS and one favoring the Normans. MLS filed an action to quiet title in itself

to approximately one-tenth of an acre used by the Normans for agricultural

purposes.

[2] The Normans counterclaimed and moved for partial summary judgment. They

asserted that MLS held a deed with a legal description inconsistent with that in

a Quit Claim Deed given to MLS’s predecessor. The Normans also asserted

that they had acquired title to the disputed land by either acquiescence or

adverse possession. The trial court granted partial summary judgment to the

Normans, without articulating specific grounds therefor, and entered the order

as a final and appealable judgment. MLS challenges the grant of partial

summary judgment. We affirm.

Issues [3] MLS presents two consolidated and restated issues for review:

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 2 of 13 I. Whether the trial court abused its discretion in the admission of designated evidence by denying MLS’s motion to strike two paragraphs from Adam’s affidavit; and

II. Whether partial summary judgment was improvidently granted.

Facts and Procedural History [4] In 1961, 1977, and 1988, Hugh and Georgia Gresham jointly acquired land in

Lawrence County aggregating to 304 acres. After Georgia’s death in 1999,

Hugh owned the land. At some point, he deeded a portion of the land to his

heirs, but in 2012 they deeded the land back to Hugh by a Quit Claim Deed.

[5] From 1999 until November 5, 2019, Hugh leased part of his acreage, located to

the north of Gresham Road, to the Normans and their father for farming

purposes. On January 31, 2006, Hugh sold 140 acres to the Normans. Prior to

the sale, the parties walked the land, and Hugh pointed to a wire fence

extending over a portion of the real estate. Woods were on one side and

agricultural land on the other side. After the sale, the Normans used the

property up to the wire fence for agricultural purposes, including the pasturing

of livestock. In 2007, the Normans re-strung some of the fence with barbed

wire. In 2012, they erected an electric fence just inside the wire fence.

According to the Normans, they understood that the wire fence was the

boundary line between the Gresham/Norman properties.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 3 of 13 [6] Hugh died in June of 2019. On November 5, 2019, Hugh’s estate sold 164.66

acres to MLS. In conjunction with its purchase of land, MLS commissioned a

land survey (“the Oakley survey”). MLS concluded that the deed line and

fence line differ; more specifically, that the wire fence encroaches in two areas.

The first difference between the deed line and fence line is a tract of 0.103 acres

to the east, occupied by MLS. The second is a tract of 0.099 acres to the west,

occupied by the Normans.

[7] On June 19, 2020, MLS filed a Complaint to Quiet Title to Real Estate (“the

Complaint”) naming the Normans as defendants. MLS contended that it

owned all property described in a 2019 Personal Representative’s Deed from

Brenda McCammon, JoEllen Powell, and Carolyn Zeeks (Hugh’s heirs). The

Normans filed an answer and counterclaim. In Count 1, the Normans sought

to quiet title to the 0.099-acre tract in themselves. Count 2 alleged a claim for

trespass against MLS, related to alleged spraying of chemicals onto agricultural

crops.1 The Normans asserted that a legal description attached to the

Complaint, based upon the Oakley survey, is inconsistent with that in a deed of

prior conveyance. The Normans also claimed to have acquired title by

acquiescence, or alternatively, by adverse possession.

[8] After MLS answered the counterclaim and discovery commenced, the

Normans engaged Lawrence County Surveyor Corey Allen to perform a

1 This trespass claim is pending in the Lawrence Circuit Court and is not a subject of this appeal.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 4 of 13 boundary retracement survey of the disputed land. Subsequent to receipt of

Allen’s report and survey (“the Allen survey”), the Normans were granted leave

to file an amended counter-complaint. They added Farm Credit Mid-America,

FLCA (“FCMA”) as a third-party defendant.2 FCMA filed an answer and

asserted that it holds a lien against the real estate described in the Complaint.

MLS was permitted to amend its complaint to add Count 2, a claim of adverse

possession as to the 0.103 acres occupied by MLS.

[9] On February 28, 2022, the Normans filed a motion for partial summary

judgment upon the competing quiet title claims set forth in the Complaint and

Count 1 of the counterclaim. The Normans submitted as designated materials

the affidavits of Adam and Allen. In moving for summary judgment, the

Normans pointed to Allen’s discovery of a discrepancy between the legal

description in Exhibit A to the Complaint and a legal description contained in a

2012 Quitclaim deed from Hugh’s heirs, by which Hugh had acquired title to

part of the real estate later conveyed to MLS. MLS and FCMA filed responses

in opposition to the motion for partial summary judgment, designated materials

in opposition, and moved to strike several portions of Adam’s affidavit.

[10] On August 12, 2022, the trial court conducted a hearing. No party having

moved to reform the deed based upon either the Oakley survey or Allen survey,

argument was heard solely upon claims of acquisition of title by acquiescence

2 FCMA is not an active participant in this appeal.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 5 of 13 or adverse possession. On August 17, 2022, the trial court entered its order,

granting in part and denying in part the motion to strike portions of Adam’s

affidavit. On the same day, the trial court entered an order granting the

Normans’ motion for partial summary judgment and directing its entry as a

final appealable judgment. MLS filed a motion to correct error, which was

summarily denied. This appeal ensued.

Discussion and Decision Admissibility of Portions of Adam Norman Affidavit [11] Indiana Trial Rule 56 permits parties to submit affidavits and evidence in

support of their motions for summary judgment. That rule states in relevant

part:

[A] party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. ... Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self- authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Ind. Trial Rule 56(C)-(E). “Thus, in ruling on a motion for summary judgment,

the trial court will consider only properly designated evidence which would be

admissible at trial.” Zelman v. Capital One Bank (USA) N.A., 133 N.E.3d 244,

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 6 of 13 248 (Ind. Ct. App. 2019). We accord great deference to the evidentiary rulings

of the trial court and will reverse only for an abuse of discretion. Blevins v.

Clark, 740 N.E.2d 1235, 1238 (Ind. Ct. App. 2000). An abuse of discretion

occurs when the trial court’s decision is against the logic and effect of the facts

and circumstances set before it. Id.

[12] FCMA moved to strike portions of Adam’s affidavit on hearsay grounds.

Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Ind. Evid. Rule 801(c). The trial court granted the motion in part and denied

the motion in part. At issue here is the language of Paragraphs 14 and 15:

14. In late 2005, prior to purchasing the Norman Property from Hugh F. Gresham, my brother Mathew A. Norman and I walked the Norman Property with said Hugh F. Gresham, who pointed out the Partition Fence as the boundary line between the Norman Property and the MLS Property north of Gresham Road.

15. Since acquiring title to the Norman Property in 2006, my brother Mathew A. Norman and I had an understanding and agreement with said Hugh F. Grisham that the Partition Fence was the boundary line between the Norman Property and the MLS Property north of Gresham Road.

(App. Vol. II, pg. 122.)

[13] In these paragraphs, Adam did not repeat statements made by another person.

Adam’s averments pertain to conduct that he says he observed – pointing to a

fence – and to his own assessment that the fence in question functioned as a Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 7 of 13 partition fence pursuant to an agreement. Such would have been admissible

had Adam testified at a trial. However, as we will expand upon below, Adam

articulated no statement from Hugh to support Adam’s subjective belief that an

agreement had been reached. We find no abuse of discretion in the trial court’s

admission of the two challenged paragraphs of Adam’s affidavit.

Summary Judgment [14] Summary judgment is appropriate only “if the designated evidentiary matter

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). But

summary judgment is not a means for resolution of factual disputes and

“should not be used as an abbreviated trial, even where the proof is difficult or

where the court may believe that the non-moving party will not succeed at

trial.” Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 715 (Ind. Ct. App.

2014), trans. denied. We review de novo whether the trial court properly granted

summary judgment. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[15] When we review a grant of summary judgment, our standard of review is the

same as that of the trial court. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d

459, 461 (Ind. 2002). We consider only those facts that the parties designated

to the trial court. Id. The Court must accept as true those facts alleged by the

nonmoving party, construe the evidence in favor of the nonmovant, and resolve

all doubts against the moving party. Id.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 8 of 13 [16] A trial court’s order on summary judgment is cloaked with a presumption of

validity; the party appealing from a grant of summary judgment must bear the

burden of persuading this Court that the decision was erroneous. Indianapolis

Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied. We

may affirm the grant of summary judgment upon any basis argued by the

parties and supported by the record. Payton v. Hadley, 819 N.E.2d 432, 438

(Ind. Ct. App. 2004). However, Trial Rule 56(H) specifically prohibits this

Court from reversing a grant of summary judgment on the ground that there is a

genuine issue of material fact, unless the material fact and the evidence relevant

thereto shall have been specifically designated to the trial court.

AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 45 (Ind. Ct.

App. 2004).

[17] In this case, the parties agree that a wire fence has stood at the subject property

for many years. Mature trees have been used as fenceposts in some portions.

In addition to the Normans’ observations commencing with their 1999 lease,

the Lawrence County surveyor, in completing the Allen survey, uncovered

evidence that an earlier fence had existed at the same location. At the disputed

area, one side was used for agricultural purposes up to the fence and the other –

wooded – side was not appropriate for or utilized for agricultural purposes.

Shortly after purchasing land from Hugh, the Normans restrung a portion of

fencing. They subsequently installed electric fencing. Although these basic

facts do not appear to be in dispute, the existence of a stated or implied

boundary agreement between Hugh and the Normans is in dispute.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 9 of 13 [18] The trial court did not articulate the basis for its decision. At the outset of our

review, we observe that, due to disparate requirements, the same facts (even if

undisputed) will not support both the doctrine of title by acquiescence and a

claim of adverse possession.

[19] Adverse Possession. In Fraley v. Minger, our Supreme Court summarized and

restated the common law doctrine of adverse possession:

[T]he doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration, as follows:

(1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);

(2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);

(3) Notice—The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,

(4) Duration—the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 10 of 13 829 N.E.2d 476, 486 (Ind. 2005). Pursuant to Indiana Code Section 34-11-2-11,

the required period of time is ten years.

[20] Also, the adverse possessor must pay “all taxes and special assessments that the

adverse possessor reasonably believes in good faith to be due on the real

property during the period the adverse possessor claims to have adversely

possessed the real property.” I.C. § 32-21-7-1.1 “Substantial compliance

satisfies this statutory tax payment requirement ‘where the adverse claimant has

a reasonable and good faith belief that the claimant is paying the taxes during

the period of adverse possession.’” Celebration Worship Center, Inc. v. Tucker, 35

N.E.3d 251, 254 (Ind. 2015) (quoting Fraley, 829 N.E.2d at 493).

[21] Successive periods of possession may be tacked together to meet the requisite

ten-year requirement. Henry v. Liebner, 32 N.E.3d 258, 268 (Ind. Ct. App.

2015), trans. denied. Once title vests in the adverse claimant at the end of the

requisite ten-year period, the title may not be lost, abandoned, or forfeited.

Fraley, 829 N.E.2d at 487.

[22] Here, the designated materials reveal the following. As to control over the

disputed area, the Normans exercised a degree of use and control normal and

customary considering the characteristics of the land. They used the area up to

the wire fence for agricultural purposes, including pasturing of livestock. Their

own intent to claim full ownership of the area is not a matter of dispute. With

regard to actions providing actual or constructive notice to the legal owner, the

Normans restrung fencing in 2007; they installed an electric fence; and they

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 11 of 13 released their livestock to graze up to the fence. This use has been continuous

since 2006. As to the payment of taxes, the parties had paid the Lawrence

County assessments for their respective parcels, but the fence boundaries were

such that each had occupied some portion of land that the deed boundary

would have allocated to the other. In these circumstances, the Normans

claimed that they had achieved substantial compliance with the relevant statute

for payment of taxes, and MLS did not counter this contention.

[23] To withstand summary judgment after the Normans made a prima facie

showing of each element of adverse possession, it was incumbent upon MLS to

come forward with some designated evidence to the contrary. They did not do

so. Summary judgment was not improvidently granted to the Normans.3

3 The Normans also contended that they are entitled to summary judgment on the basis of title by acquiescence. The doctrine of title by acquiescence was recognized by our Indiana Supreme Court in 1856. See Ball v. Cox, 7 Ind. 453 (1856). There, the deed to Cox had “left the boundary line … an open question to be settled by survey” and the Court recognized that estoppel might operate based upon the intent and conduct of the parties. Id. at 461. The applicable period was recognized as twenty years: “as a general rule, … twenty years’ acquiescence is necessary to support an implied agreement in a boundary variant from that clearly expressed in the title deeds.” Id. at 460. The Court explained its reasoning for the time frame:

It would be clearly against the policy both of the statute of frauds and the statute of limitations, to allow a mere intruder, without any claim or color of title, to acquire rights on easier terms than those who hold under an adverse possession.

Id. at 461. Thereafter, our Indiana Supreme Court described the doctrine succinctly: “[t]he location of a division boundary line between two land proprietors, acquiesced in and acted upon, and the premises improved up to the line by each for twenty years, becomes binding as the true line.” Wingler v. Simpson, 93 Ind. 201, 203 (1884).

Although seldom used as the law of adverse possession developed, the doctrine remains viable in some circumstances. Huntington v. Riggs, 862 N.E.2d 1263, 1267 (Ind. Ct. App. 2007), trans. denied. The doctrine of acquiescence applies only when:

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 12 of 13 Conclusion [24] The trial court did not abuse its discretion in the admission of designated

evidentiary materials. The Normans are entitled to summary judgment on an

adverse possession claim.

[25] Affirmed.

Brown, J., and Weissmann, J., concur.

two adjoining property owners (1) share a good-faith belief concerning the location of the common boundary line that separates their properties and, (2) although the agreed-upon location is not in fact the actual boundary, (3) use their properties as if that boundary was the actual boundary (4) for a period of at least twenty years. It is the original agreement between the adjoining owners that takes this and all other “acquiescence” cases out of the realm of adverse possession.

Id. at 1274 (J. Friedlander concurring, in which Judge Kirsch and Judge Riley join) (emphasis in original). We need not discuss the applicability of the doctrine here, because the Normans are entitled to summary judgment on a separate basis.

Court of Appeals of Indiana | Opinion 22A-PL-2755 | May 4, 2023 Page 13 of 13