                                                                        FILED
                                                                   Jun 05 2020, 10:10 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                              ATTORNEYS FOR APPELLEES
John D. Waller                                        Andrew S. Williams
James A. Carter                                       Eric M. Wilkins
David W. Patton                                       Hunt Suedhoff Kalamaros, LLP
Wooden McLaughlin LLP                                 Fort Wayne, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason Brimner and Kelli                                     June 5, 2020
Brimner,                                                    Court of Appeals Case No.
Appellants/Defendants/Counterclaim                          19A-PL-3021
Plaintiffs,                                                 Appeal from the Allen Superior
                                                            Court
        v.                                                  The Hon. Nancy Eshcoff Boyer,
                                                            Judge
Bradley Binz and Laurie Binz,                               Trial Court Cause No.
Appellees/Plaintiffs/Counterclaim                           02D01-1804-PL-116
Defendants.




Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020                            Page 1 of 10
                                            Case Summary
[1]   In 2014, Neil and Grace Schroeder sold two tracts of land in Allen County, one

      to Bradley and Laurie Binz (“Tract A”) and one to Jason and Kelli Brimner

      (“Tract B”). The sales of the contiguous plots left Tract B landlocked, and the

      Binzes have never contested that the Brimners would be entitled to an ingress-

      egress easement of necessity from Tract B to a public roadway through Tract A.

      Prior to the sales, the Schroeders and Brimners executed a roadway easement

      instrument (“the Easement Instrument”) that gave the Brimners the right to

      extensively landscape their ingress-egress easement. As it happened, the

      Easement Instrument was not recorded prior to the sales of Tract A and Tract

      B.

[2]   Over time, the Brimners landscaped and made other improvements to the

      easement, and the Binzes eventually filed suit, contending, inter alia, that the

      Easement Instrument, with its landscaping rights, was unenforceable because

      the Binzes had not been put on notice of it prior to purchasing Tract A. The

      Binzes later amended their complaint to add their title insurer and the closing

      agent. The Brimners countersued, alleging that the Binzes had intentionally or

      negligently damaged the improvements the Brimners had made to the

      easement, improvements that the Brimners argued they were entitled to make

      pursuant to the Easement Instrument. In June of 2019, all parties settled and

      stipulated to the dismissal of the Binzes’ amended complaint with prejudice.

      The Brimners’ counterclaim, however, was specifically excluded from the

      stipulation of dismissal.


      Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020          Page 2 of 10
[3]   Meanwhile, in May of 2019, the Binzes had moved for summary judgment on

      the Brimners’ counterclaim, alleging that they could not be liable for damage to

      improvements to the easement because the Easement Instrument was

      unenforceable. Despite the Brimners’ argument that the settlement of the

      Binzes’ amended complaint foreclosed further litigation of the enforceability of

      the Easement Instrument, the trial court entered summary judgment in favor of

      the Binzes on the basis that it was not enforceable. The Brimners contend that

      the trial court erred in failing to conclude that the stipulated dismissal of the

      Binzes’ amended complaint was res judicata as to the Brimners’ counterclaim.

      Because we disagree, we affirm.


                              Facts and Procedural History
[4]   On June 8, 2014, the Binzes and Schroeders executed a purchase agreement

      and seller-disclosure form for Tract A, the latter of which indicated that “there

      will be an easement granted prior to closing for access to [Tract B].”

      Appellant’s App. Vol. II p. 21. On July 14, 2014, the Schroeders and Brimners

      executed the Easement Instrument, which granted the Brimners an ingress-

      egress easement from Tract B to a public roadway1 and provided that the

      Brimners “shall be responsible for maintaining the easement as well as have the

      rights to plant and maintain trees, shrubs, plants and/or other vegetation as




      1
        This provision is arguably superfluous, as it is not disputed that the Brimners are entitled to an easement of
      necessity in any event.

      Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020                                    Page 3 of 10
      well as construct and maintain an entrance gate, sign, or other structure.”

      Appellant’s App. Vol. II p. 58.

[5]   On July 28, 2014, a title commitment was issued for Tract A, which stated that

      it was subject to “legal right-of-way to Hathaway Road, and subject to all

      easements of record.” Appellant’s App. Vol. II pp. 22–23. On August 6, 2014,

      the Schroeders executed a warranty deed for Tract A to Bradley Binz, which

      stated that Tract A was “subject to all easements, covenants, conditions, and

      restrictions of record[.]” Appellant’s App. Vol. II p. 23. On August 8, 2014,

      the Easement Instrument and the warranty deed for Tract A were recorded.

      Appellant’s App. Vol. II p. 23.

[6]   Over the next few years, the Brimners landscaped and made other

      improvements to the easement. On April 4, 2018, the Binzes filed their

      complaint for damages and declaratory judgment against the Brimners and

      Schroeders. While the Binzes have always acknowledged that the Brimners are

      entitled to an easement of necessity over their property, they took issue with the

      landscaping rights granted to the Brimners in the Easement Instrument. The

      Binzes alleged that the Schroeders had breached the purchase agreement and

      committed fraud by failing to disclose the Easement Instrument before selling

      them Tract A. (Appellant’s App. Vol. II p. 38–41). The complaint also sought

      a declaratory judgment against the Brimners that the Easement Instrument was

      unenforceable because it had not been timely recorded. (Appellant’s App. Vol.

      II p. 41–45). On July 30, 2018, the Binzes and Schroeders settled and filed a

      joint stipulation to dismiss the Schroeders. (Appellant’s App. Vol. II p. 68–70).


      Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020         Page 4 of 10
[7]   On September 6, 2018, the Brimners counter-sued the Binzes for alleged

      intentional or negligent removal of shrubs from and damage to drainage tile

      within the easement. (Appellant’s App. Vol. II p. 71). On September 26, 2018,

      the Binzes amended their complaint to add First American Title Insurance

      Company (their title insurer) and Metropolitan Title of Indiana, LLC (the

      closing agent), as defendants. (Appellant’s App. Vol. II p. 119–66). On May

      17, 2019, a notice filed by Metropolitan Title indicated that the parties had

      settled the Binzes’ amended complaint but that “[t]his Notice of Settlement

      does not reflect an agreement to settle the Counterclaim dispute filed by [the

      Brimners] against [the Binzes].” Appellant’s App. Vol. II p. 236. Also on May

      17, 2019, the Binzes moved for summary judgment on the Brimners’

      counterclaim, arguing that they could not be liable for damage to improvements

      in the easement because Brimners had failed to establish that the Easement

      Instrument was enforceable. (Appellant’s App. Vol. II p. 185–234).

[8]   On June 13, 2019, all parties to the Binzes’ amended complaint entered a joint

      stipulation that provided, in full, that “[t]he parties, by counsel, hereby stipulate

      that the Amended Complaint filed by [the Binzes] is dismissed with prejudice.”

      Appellant’s App. Vol. II p. 238. The parties did not stipulate to any facts

      related to either the amended complaint or the counterclaim. On July 15, 2019,

      the Brimners responded to the Binzes’ summary-judgment motion, asserting,

      inter alia, that the dismissal of the amended complaint with prejudice was res

      judicata as to their counterclaim and, therefore, barred relitigation of the




      Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020           Page 5 of 10
       enforceability of the Easement Instrument, leaving only the question of

       damages to their improvements.

[9]    On September 12, 2019, the trial court entered summary judgment in favor of

       the Binzes on the basis that the Easement Instrument was unenforceable. The

       trial court also ruled that (1) the Binzes were entitled to do whatever they

       wished with any trees, shrubs, signage, or vegetation in the easement and (2)

       the Brimners’ rights were limited to a common-law easement of necessity for

       ingress and egress. On October 15, 2019, the Brimners moved to correct error,

       which motion the trial court denied in part and granted in part, clarifying only

       the location of the easement and that the Brimners did have the right to

       maintain a paved driveway and run utilities in the easement. (Appellant’s App.

       Vol. II p. 31–33).


                                   Discussion and Decision
                                               Standard of Review

[10]   The Brimners appeal from the partial denial of their motion to correct error.

       “The standard of appellate review of trial court rulings on motions to correct

       error is abuse of discretion.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048,

       1055 (Ind. 2003). A trial court has abused its discretion when its decision is

       against the logic and effect of the circumstances. Mitchell v. Stevenson, 677

       N.E.2d 551, 558–59 (Ind. Ct. App. 1997), trans. denied. The basis of the

       Brimners’ argument is their contention that the trial court erred in granting

       summary judgment in favor of the Binzes on the Brimners’ counterclaim.

       “When reviewing the grant of summary judgment, our standard of review is the
       Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020          Page 6 of 10
       same as that of the trial court.” Poiry v. City of New Haven, 113 N.E.3d 1236,

       1239 (Ind. Ct. App. 2018). Summary judgment is precluded by any genuine

       issue of material fact, and “a fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth, or if the undisputed material

       facts support conflicting reasonable inferences.” Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014) (citation and quotation marks omitted). The moving

       party has the burden of making a prima facie showing from the designated

       evidentiary matter that there are no genuine issues of material fact and that it is

       entitled to judgment as a matter of law. Smith v. Delta Tau Delta, Inc., 9 N.E.3d

       154, 160 (Ind. 2014). If the moving party satisfies this burden, then the non-

       moving party must show from the designated evidentiary matter the existence

       of a genuine issue of fact precluding summary judgment. Id. The court

       considers only the designated evidentiary matters, and all evidence and

       inferences are reviewed in the light most favorable to the non-moving party.

       Id.; Ind. Trial Rule 56(C).

                                                  Res Judicata
[11]   The Brimners argue that the trial court erred in failing to conclude that the

       dismissal of the Binzes’ amended complaint was res judicata as to the question of

       enforceability of the Easement Instrument. The Brimners’ damages

       counterclaim, of course, depends on the Easement Instrument being

       enforceable. The Binzes argue that the trial court correctly concluded that res

       judicata does not apply, allowing further litigation of the Easement Instrument’s


       Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020            Page 7 of 10
       enforceability. The doctrine of res judicata serves to prevent repetitious litigation

       of disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043,

       1046 (Ind. Ct. App. 2011), trans. denied. The doctrine consists of the two

       components of claim preclusion and issue preclusion, id., and the Brimners

       contend that both apply in this case.

                                           A. Claim Preclusion
[12]   Claim preclusion applies when a final judgment on the merits has been

       rendered in an action, and it acts to bar a subsequent action on the same claim

       between the same parties. Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc.,

       996 N.E.2d 337, 340 (Ind. Ct. App. 2013). The Binzes argue, however, that

       there was no final judgment on the merits because only the amended complaint

       was dismissed, leaving the Brimners’ counterclaim for future determination.

       We agree with the Binzes.

[13]   Trial Rule 54(B) provides, in part, that

               A judgment as to one or more but fewer than all of the claims or
               parties is final when the court in writing expressly determines
               that there is no just reason for delay, and in writing expressly
               directs entry of judgment, and an appeal may be taken upon this
               or other issues resolved by the judgment; but in other cases a
               judgment, decision or order as to less than all the claims and parties is
               not final.
       (Emphasis added); see also Ind. App. Rule 2(H)(1) (“A judgment is a final

       judgment if […] it disposes of all claims as to all parties[.]”). As mentioned,

       while the Binzes’ amended complaint was dismissed by stipulation, the

       Brimners’ counterclaim was explicitly excluded from that stipulation, leaving to


       Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020                    Page 8 of 10
       be resolved the claim that the Binzes had unlawfully damaged the

       improvements the Brimners made to the easement. Moreover, the trial court

       did not expressly make, in writing, an entry of judgment or determine that there

       was no just reason for delay. Consequently, there was no final judgment on the

       merits, a foundational requirement of claim preclusion. See, e.g., Reising v.

       Guardianship of Reising, 852 N.E.2d 644, 649 (Ind. Ct. App. 2006) (“Neither

       order conclusively settled the entire guardianship issue permanently. Thus, the

       orders were not final judgments on the merits that adjudicated all the claims in

       this action and cannot be given preclusive effect.”); Exide Corp. v. Millwright

       Riggers, Inc., 727 N.E.2d 473, 478 (Ind. Ct. App. 2000) (“Because the circuit

       court’s decision in Millwright’s case was not final and was subject to change,

       the superior court correctly declined to grant preclusive effect to the circuit

       court’s grant of summary judgment.”), trans. denied.


                                            B. Issue Preclusion
[14]   The Brimners also argue that the second branch of res judicata, issue preclusion,

       prevents entry of summary judgment in favor of the Binzes.

               The second branch of the principle of res judicata is issue
               preclusion, also known as collateral estoppel. Issue preclusion
               bars the subsequent litigation of a fact or issue that was
               necessarily adjudicated in a former lawsuit if the same fact or
               issue is presented in the subsequent lawsuit. If issue preclusion
               applies, the former adjudication is conclusive in the subsequent
               action, even if the actions are based on different claims.
       Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013) (citations

       omitted), trans. denied. Issue preclusion, however, only “applies only to matters


       Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020            Page 9 of 10
       actually litigated and decided, not all matters that could have been decided.”

       Miller Brewing Co. v. Ind. Dep’t of State Rev., 903 N.E.2d 64, 68 (Ind. 2009)

       (emphasis added). Because the Binzes’ amended complaint was dismissed by

       stipulation, the issue of the enforceability of the Easement Instrument was not

       actually litigated and decided. Consequently, issue preclusion does not apply to

       bar its consideration as raised in the Brimners’ counterclaim. See Restatement

       (Second) of Judgments § 27 cmt. e (1982) (“An issue is not actually litigated if […]

       it is the subject of a stipulation between the parties[.]”). The Brimners have

       failed to establish that either branch of the doctrine of res judicata helps them in

       this case.

[15]   We affirm the judgment of the trial court.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-3021 | June 5, 2020           Page 10 of 10
