MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                           Jul 27 2017, 11:43 am

precedent or cited before any court except for the                          CLERK
purpose of establishing the defense of res judicata,                    Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
John J. Schwarz, II                                       Bill D. Eberhard, Jr.
Schwarz Law Office, P.C.                                  Eberhard & Weimer, P.C.
Hudson, Indiana                                           LaGrange, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Audrey Mullins and                                        July 27, 2017
Danny Mullins,                                            Court of Appeals Case No.
                                                          44A03-1611-MI-2631
Appellants-Plaintiffs,
                                                          Appeal from the LaGrange Superior
        v.                                                Court
                                                          The Honorable Lisa M. Bowen-
                                                          Slaven, Judge
Robert Maas and Gail Maas,
                                                          Cause No. 44D01-1310-MI-77
Appellees-Defendants.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017            Page 1 of 12
                                           Case Summary
[1]   In 2013, Appellants-Plaintiffs Audrey and Danny Mullins sued for adverse

      possession of a parcel of land also claimed by Appellees-Defendants Robert and

      Gail Maas (“the Disputed Parcel”). After a bench trial, the trial court entered

      judgment in favor of the Mullinses. The trial court, however, granted the

      Maases’ motion to correct error, which grant awarded possession of the

      Disputed Parcel to them. After almost one year passed, the Mullinses moved

      for relief from judgment, which motion the trial court denied. The Mullinses

      contend that the trial court abused its discretion in denying their motion for

      relief from judgment on several bases, including excusable neglect, newly-

      discovered evidence, misrepresentation, and that the trial court’s ruling was

      untimely. Because we conclude that the first three claims lack merit and that

      the fourth is waived for appellate review, we affirm.



                            Facts and Procedural History
[2]   In July of 1981, the Mullinses purchased real estate in Brushy Prairie in

      LaGrange County, consisting primarily of Lot 14 of the plat. At the time, there

      was a general discussion of the real estate’s boundaries, but no survey was

      performed. Between 1981 and 2006, the Mullinses made at least some use of

      the Disputed Parcel, which consisted of parts of adjacent Lots 13, 23, and 24 of

      the Brushy Prairie plat, planting and/or maintaining bushes, trees, grass, bird

      feeders, and burn barrels on it.



      Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 2 of 12
[3]   Also between 1981 and 2006, Linda Lee Perkins, who believed that she owned

      the Disputed Parcel, also used it, hiring someone to mow it and owning a pole

      barn that was situated partially in it. In 2006, the Maases purchased property in

      Brushy Prairie from Perkins, the deed to which included the Disputed Parcel.

      The LaGrange County Auditor has since determined that Perkins did not, in

      fact, possess legal title to the Disputed Parcel at the time of the sale. In any

      event, at some point in 2013, a survey was performed which excluded the

      Disputed Parcel from the Mullinses’ property.


[4]   On October 28, 2013, the Mullinses filed a complaint against the Maases for

      adverse possession of the Disputed Parcel. On December 18, 2014, the trial

      court conducted a bench trial and took the matter under advisement. On

      December 31, 2014, the trial court entered judgment in favor of the Mullinses.

      On January 1, 2015, Judge Lisa M. Bowen-Slaven took over the case, having

      recently been elected. On January 30, 2015, the Maases filed a motion to

      correct error. On May 26, 2015, the trial court granted the Maases’ motion to

      correct error. The trial court’s order provided, in part, as follows:

              1. To prevail on a claim of adverse possession, a claimant must
              establish the following four elements: (1) control; (2) intent; (3)
              notice; (4) duration; and in boundary disputes, adverse claimants
              must demonstrate that they substantially complied with Indiana
              Code Section 32-21-7-1 and the payment of taxes,
              2. To establish control, the adverse claimant must have exercised
              a degree of use and control over the parcel that is normal and
              customary considering the characteristics of the land in question.
              The element of control is composed of and recognizes the former
              elements of actual and exclusive possession. To demonstrate

      Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 3 of 12
        intent, the claimant must have shown his or her intent to claim
        full ownership of the tract superior to the rights of all others,
        particularly the legal owner. The element of intent is recognizing
        and reflecting components of the former elements of claim of
        right, exclusive, hostile and adverse. For notice, the claimant’s
        actions with respect to the land must have been sufficient to give
        actual or constructive notice to the legal owner of the claimant’s
        intent and exclusive control. To show duration, the claimant
        must have satisfied each of the other elements continuously for
        the required period of time, i.e. ten years. Fraley v. Minger, 829
        NE. 2d 476 (Ind. 2005).
        3. The party asserting the claim of adverse possession must
        establish the elements of adverse possession by clear and
        convincing evidence. Fraley at 483.
        4. A person may not control a parcel of property and at the same
        time acknowledge that there exists other people who have, and
        should continue to have in the future, the right to make use of the
        same real estate.
        5. There was no evidence presented to suggest that the Mullins
        excluded others from using the Disputed Property during the
        period from 1981 through 2006.
        6. There was no evidence presented to suggest that Linda Lee
        Perkins was on notice that the Mullins were asserting a claim of
        full ownership of the tract superior to the rights of all others,
        particularly Linda Lee Perkins, during the period from 1981
        through 2006.
        7. The Mullins have failed to establish the elements of control,
        intent and notice during their claimed period of duration,
        specifically, August 1981 through 2096, by clear and convincing
        evidence and therefore their claim of adverse possession to the
        Disputed Property must fail.
        8. Although a conclusion related to payment of property taxes
        for the Disputed Property is not necessary, based on the Plaintiffs
        having failed to meet their burden in relation to the adverse
        possession criteria, the Court also concludes that the Plaintiffs
Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 4 of 12
              failed to establish substantial compliance with the Adverse
              Possession Tax Statute.
              …
              10. The Plaintiffs’ claim, as filed on October 28, 2013, was for
              adverse possession. The fact that there may now be some dispute
              as to whether or not Linda Lee Perkins legally owned the
              Disputed Property at the time of the conveyance in 2006 to the
              Defendants is irrelevant to the claim before the Court.
                                                JUDGMENT
              The Plaintiffs having failed to satisfy their burden on their claim
              of adverse possession, the Court hereby enters judgment in favor
              of the Defendants. JUDGMENT ACCORDINGLY.
      Appellant’s App. Vol. II pp. 45-46.


[5]   On May 26, 2016, the Mullinses filed an Indiana Trial Rule 60 motion for relief

      from judgment. On October 18, 2016, the trial court denied the Mullinses’

      motion for relief from judgment.


                                 Discussion and Decision
                         I. Motion for Relief from Judgment
[6]   The Mullinses contend that the trial court abused its discretion in denying their

      motion for relief from judgment.


              On motion and upon such terms as are just the court may relieve
              a party or his legal representative from a judgment, including a
              judgment by default, for the following reasons:
                  (1) mistake, surprise, or excusable neglect;
                  (2) any ground for a motion to correct error, including
                  without limitation newly discovered evidence, which by due


      Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 5 of 12
            diligence could not have been discovered in time to move for
            a motion to correct errors under Rule 59;
            (3) fraud (whether heretofore denominated intrinsic or
            extrinsic), misrepresentation, or other misconduct of an
            adverse party[.]
            ….
            A movant filing a motion for reasons (1), (2), [or] (3) … must
            allege a meritorious claim or defense.
Ind. Trial Rule 60(B).


        The burden is on the moving party to establish the ground for
        relief under Trial Rule 60(B). In re Paternity of P.S.S., 934 N.E.2d
        737, 740 (Ind. 2010).… Trial Rule 60(B) motions address only
        the procedural, equitable grounds for justifying relief from the
        legal finality of a final judgment, not the legal merits of the
        judgment. Id.
        We review the trial court’s ruling on a motion for relief from
        judgment using an abuse of discretion standard. Speedway
        SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008).
        An abuse of discretion occurs only when the trial court’s action is
        clearly erroneous, that is, against the logic and effect of the facts
        before it and inferences drawn therefrom. P.S.S., 934 N.E.2d at
        741. Moreover, where as here, the trial court enters special
        findings and conclusions pursuant to Indiana Trial Rule 52(A),
        we apply a two-tiered standard of review. Stonger v. Sorrell, 776
        N.E.2d 353, 358 (Ind. 2002). First we determine if the evidence
        supports the findings, and second whether the findings support
        the judgment. Id. The trial court’s findings and conclusions will
        be set aside only if clearly erroneous. Id. We neither reweigh the
        evidence nor reassess witness credibility. Id. Instead, we must
        accept the ultimate facts as stated by the trial court if there is
        evidence to sustain them. Id.
Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans. denied.


Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 6 of 12
[7]   The Mullinses claim they are entitled to relief from judgment on the bases of

      excusable neglect, allegedly newly-discovered evidence, and/or

      misrepresentation. As mentioned, all of these bases also require that the

      Mullinses allege a meritorious claim or defense, which the Mullinses have

      failed to do.


[8]   The Mullinses focus on several things: their claim that have both suffered

      recent health problems, the question of who has actually paid property taxes on

      the Disputed Parcel over the years, whether the Maases installed a septic tank

      in the Disputed Parcel, and whether the Maases made misrepresentations

      regarding the taxes and septic tank. Even if we assume that all of these issues

      can be resolved in the Mullinses’ favor, that would not help them. As the

      Maases point out, the trial court’s grant of their motion to correct error did not

      depend on the resolution of any questions regarding taxes or a septic tank.

      Rather, the trial court’s decision was based on the trial court’s findings that the

      Mullinses failed to establish the elements of control, intent, and notice, any one

      of which would be fatal to their adverse-possession claim and none of which

      they challenge. Because they failed to allege a meritorious claim or defense, the

      Mullinses have likewise failed to establish that the trial court abused its

      discretion in their motion for relief from judgment.


                 II. Timing of Ruling on Motion to Correct Error
[9]   The Mullinses argue that the trial court should grant them relief from the grant

      of the Maases’ motion to correct error because the trial court did not issue its


      Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 7 of 12
       order within thirty days of the hearing held on March 26, 2015. Trial Rule 53.3

       provides, in part, as follows:


               (A) Time limitation for ruling on motion to correct error. In
               the event a court fails for forty-five (45) days to set a Motion to
               Correct Error for hearing, or fails to rule on a Motion to Correct
               Error within thirty (30) days after it was heard or forty-five (45)
               days after it was filed, if no hearing is required, the pending
               Motion to Correct Error shall be deemed denied. Any appeal
               shall be initiated by filing the notice of appeal under Appellate
               Rule 9(A) within thirty (30) days after the Motion to Correct
               Error is deemed denied.
               (B) Exceptions. The time limitation for ruling on a motion to
               correct error established under Section (A) of this rule shall not
               apply where:
                   (1) The party has failed to serve the judge personally; or
                   (2) The parties who have appeared or their counsel stipulate
                   or agree on record that the time limitation for ruling set forth
                   under Section (A) shall not apply; or
                   (3) The time limitation for ruling has been extended by
                   Section (D) of this rule.
       The Mullinses note that the trial court did not rule on the Maases’ motion to

       correct error within thirty days of the March 26, 2015, hearing, and while they

       do not deny that the parties did, in fact, agree to waive the time limitation, they

       argue that any such agreement was not sufficiently “on record.”


[10]   The record on appeal touches on this question several times. At the March 26,

       2015, hearing on the motion to correct error, Judge Bowen-Slaven noted that

       she was not the judge who issued the judgment of December 31, 2014, and

       indicated that she wished to review the recording of the bench trial. The

       Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 8 of 12
       Mullinses’ counsel then moved to vacate oral argument on the motion to

       correct error, observing that it would be “kind of silly” to make arguments

       based on something the current trial court had not heard. March 26, 2016, Tr.

       p. 3. Both parties agreed to conduct oral argument at a later date after Judge

       Bowen-Slaven had an opportunity to review the tapes of the bench trial and if

       she felt it necessary. Judge Bowen-Slaven took the matter under advisement

       and indicated that she would review the trial tapes and contact the parties if she

       felt oral argument was necessary.


[11]   In the May 26, 2015, order granting the Maases’ motion to correct error, the

       trial court indicated that “the parties each agreed to extend the deadline for

       ruling on the Motion to Correct Errors, to and including June 7, 2015.”

       Appellant's App. Vol. II p. 43. Finally, the trial court’s October 18, 2016, order

       denying the Mullinses motion for relief from judgment contains the following:


               8. Thereafter, within thirty (30) days of the March 26, 2015
               hearing on Defendants’ Motion to Correct Error, the Court held
               a telephonic conference with the attorneys of record at that time
               and requested additional time to rule on the Motion to Correct
               Errors.
               9. Although the telephone conference was not recorded, both
               parties’ legal counsel advised the Court that they specifically
               agreed to extend the time for ruling on the Motion to Correct
               Errors for so long as the Court reasonably needed to review the
               record and evidence that was admitted at trial in this cause, in
               order to make a fully informed decision. The Court advised the
               parties during the telephone conference that a decision would be
               made by June 7, 2015, to which counsel indicated their consent.



       Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 9 of 12
       Appellant’s App. Vol. II p. 13. In short, even though there is no

       contemporaneous record of the telephone conference or the parties’ agreement

       to extend the deadline for the trial court to rule on the Maases’ motion to

       correct error, the record clearly indicates that the parties agreed to extend the

       deadline.


[12]   The case of Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281 (Ind. Ct. App.

       1995), trans. denied, is similar enough to be helpful. The Andersons contracted

       with Horizon Homes to build them a house, which, following delays and

       disputes, was never finished. Id. at 1284. The resulting litigation resulted in an

       award of money damages to Horizon on May 14, 1993. Id. at 1285. On June

       11, 1993, a telephonic conference involving the parties and the trial court was

       conducted, although the details of the conference were not made part of the

       record at the time. Id. On September 17, 1993, the trial court denied the

       Andersons’ motion to correct error. Id. On October 18, 1993, the Andersons

       filed a praecipe of appeal, which Horizon Homes challenged as untimely on the

       basis that the Andersons’ motion to correct error had been deemed denied on

       July 31, 1993, pursuant to Trial Rule 53.3(A). Id. at 1586.


[13]   On November 22, 1993, the trial court ordered the correction of its June 11,

       1993, docket entry to reflect that the parties had agreed to extend the time in

       which the trial court could rule on the Andersons’ motion to correct error:

               1. That the Entry of the Pre-Trial Conference held telephonically
               on June 11, 1993, did not completely set forth the discussions
               and statements of the parties and the Court, and a clerical

       Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 10 of 12
               mistake was made in not accurately depicting the content of that
               Pre-Trial Conference as more specifically set forth below.
               2. That … [a] conversation was held between the Court and the
               parties regarding the Defendants’ anticipated Motion to Correct
               Error....
               ******
               4. That Trial Rule 53.3 was discussed during the Pre-Trial
               Conference and the Court stated to the parties that it would
               diligently attempt to rule on said Motion to Correct Errors within
               the time limitation set forth in said Rule.… The Court stated that
               it intended to move expeditiously in its consideration of the
               Motion to Correct Errors, but could not state that it could issue
               its ruling on said Motion within forty-five (45) days of the date
               the Defendant [sic] filed their Motion to Correct Errors due to [a]
               congested court calander [sic] and vacation. The parties advised
               the Court that they would provide the Court with the time
               necessary to properly rule on the Motion to Correct Errors.
       Id. at 1285 (bracketed material in Anderson).


[14]   As is the case here, Horizon Homes did not deny that it agreed that the time

       limits of Trial Rule 53.3 would not apply, only that the agreement was not “of

       record.” Id. at 1286. We rejected Horizon Homes’s argument, noting that

       “[t]he November 22, 1993, order is clear that the parties agreed, at the trial

       court’s urging, that the forty-five day time limit of T.R. 53.3(A) would not

       apply” and concluding “that the ‘on record’ requirement of T.R. 53.3(B) was

       satisfied.” Id. at 1286.


[15]   We see no meaningful distinction between this case and Anderson and so reach

       the same result. The trial court’s orders granting the Maases’ motion to correct

       error and denying the Mullinses’ motion for relief from judgment, although not

       Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017   Page 11 of 12
       contemporaneous to the agreement to extend the deadline for ruling on the

       motion to correct error, clearly reflect that such an agreement was reached.

       Under the circumstances of this case—and keeping in mind that the Mullinses

       have never denied that such an agreement existed—we conclude that Trial Rule

       53.3(B)’s “on record” requirement was satisfied.1 The Mullinses are not entitled

       to relief from judgment on the basis that the trial court did not timely rule on

       the Maases’ motion to correct error.


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


       May, J., and Barnes, J., concur.




       1
         We feel that concluding otherwise in this case would be placing form over substance. Of course, the better
       practice would be to contemporaneously record any such agreement in some detail, whether in open court or
       through an entry in the Chronological Case Summary.

       Court of Appeals of Indiana | Memorandum Decision 44A03-1611-MI-2631 | July 27, 2017           Page 12 of 12
