MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                Aug 25 2015, 10:02 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR TOWNE
Jeffry G. Price                                          H. Joseph Certain
Peru, Indiana                                            Rebecca L. Loeffler
                                                         Adrienne E. Rines
                                                         Kiley, Harker & Certain
                                                         Marion, Indiana
                                                         ATTORNEYS FOR STATE
                                                         Gregory F. Zoeller
                                                         Attorney General of Indiana
                                                         Kristin Garn
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William G. Zartman, Jr., and                             August 25, 2015
Marilyn M. Zartman, Trustees of                          Court of Appeals Case No.
the William G. Zartman, Jr., and                         25A05-1410-PL-495
Marilyn M. Zartman Revocable                             Appeal from the Fulton Superior
Trust, and William G. Zartman                            Court
III and Kim R. Zartman,                                  The Honorable Christopher M.
Appellants-Defendants,                                   Goff, Special Judge
                                                         Trial Court Cause No.
        v.                                               25D01-0804-PL-96




Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 1 of 9
      Donald R. Towne and Larry J.
      Towne,
      Appellees-Plaintiffs,

      and
      State of Indiana,
      Appellee-Defendant




      Baker, Judge.


[1]   The families and predecessors of the Townes and the Zartmans have owned

      adjacent plots of land for decades. One day, William Zartman III destroyed a

      section of the long-standing fence between the properties and then rebuilt the

      fence in a way that encroached onto the Townes’ property. The Townes filed a

      complaint for trespass, ejectment, adverse possession, and to quiet title.


[2]   Initially, the Zartmans claimed that they owned the disputed portion of

      property. Eventually, they alleged that instead, the State owned it. The

      Zartmans requested that the State be added as a defendant. The trial court

      granted the request, at which time the State denied having any ownership

      interest in the property. The State eventually filed a disclaimer of any and all

      interest it may have had. Consequently, the trial court dismissed the State from

      the litigation. We find no error in that dismissal, and affirm.




      Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 2 of 9
                                                         Facts
[3]   The Townes and the Zartmans own respective parcels of land that are adjacent

      to one another in rural Fulton County. Sometime before 1960, a fence was

      constructed along the northern line of the Townes’ property. Since then, the

      parties have treated the fence as a boundary line between their lots. Also in the

      vicinity is South Mud Lake, which has receded with time, such that there is

      now a swampy area between the lake’s meander line1 and the lake’s current

      water line (hereinafter referred to as the Disputed Area).


[4]   In 2006, William Zartman III (William) destroyed a portion of the fence

      between the Zartmans’ property and the Townes’s property. William then

      erected a new fence, which ran in a southwestwardly direction across the

      Townes’s property, and across the Disputed Area, to South Mud Lake.


[5]   On April 17, 2008, the Townes filed a complaint against the Zartmans for quiet

      title, trespass, ejectment, and adverse possession. The Townes later amended

      their complaint to allege that they had acquired additional land—the Disputed

      Area—by reason of “reliction[2] of the water of South Mud Lake.” Appellants’

      App. p. 24.




      1
       Meander line is defined as “one following the outline of a stream, lake or swamp.” Webster’s Third New
      Int’l Dictionary 1399 (1993).
      2
       “Reliction” is defined as “[a] process by which a river or stream shifts its location, causing the recession of
      water from its bank.” Black’s Law Dictionary 7th ed. 1293 (1999).

      Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015                 Page 3 of 9
[6]   On July 17, 2013, the Zartmans filed a motion to add an additional party,

      which the trial court granted on July 29, 2013. On September 27, 2013, the

      State filed an answer to the complaint, denying all allegations. It also filed a

      motion to dismiss itself from the litigation because “the State does not hold title

      to the subject disputed property.” Id. at 38. On October 15, 2013, the

      Zartmans filed a cross-claim against the State, arguing that the State, rather

      than the Townes, owned the Disputed Area.


[7]   On November 15, 2013, the State filed a disclaimer of interest in the Disputed

      Area, stating as follows:

              2.       The State of Indiana is not an owner of the subject
                       property and does not own the subject property;


              3.       To the extent the State of Indiana has acquired an interest
                       in the subject property it hereby disclaims said interest;


                                                       ***


              WHEREFORE, the State of Indiana, by counsel, hereby
              disclaims any and all interest it may have in the subject property
              and further respectfully prays that it be dismissed from this
              lawsuit . . . .


      Id. at 79. At the Zartmans’ request, the trial court afforded them time to file a

      brief in opposition to the State’s motion to dismiss. They filed their brief on




      Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 4 of 9
      November 25, 2013.3 On November 27, 2013, the trial court granted the State’s

      motion and dismissed it from the litigation.


[8]   A bench trial on the Townes’ complaint against the Zartmans took place on

      July 22 and 23, 2014. On September 24, 2014, the trial court entered an order

      finding in favor of the Townes. In pertinent part, the trial court found as

      follows:


                 15.      The State of Indiana has never asserted a claim to
                          ownership to land around the waterline of South Mud
                          Lake, and in particularly [sic], the land that is now in
                          dispute.


                 16.      The State of Indiana does not claim ownership of any land
                          between the original meander line of South Mud Lake and
                          the current waterline including the disputed land.


                                                                ***


                                           CONCLUSIONS OF LAW


                 2.       The State of Indiana does not own the disputed property.


                 3.       To the extent the State of Indiana ever held an ownership
                          interest in the disputed land, it expressly disclaimed said
                          interest.




      3
          That brief is not included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 5 of 9
       Id. at 21-23. The trial court found that William trespassed on the Townes’

       property when he destroyed a section of fence and constructed a new fence.

       The trial court found that the Townes incurred damages in the amount of

       $2,689.27 and ordered judgment in their favor in that amount. The Zartmans

       now appeal.


                                       Discussion and Decision
[9]    On appeal, the Zartmans argue that the trial court erred by dismissing the State

       from the litigation. They also contend that the trial court erroneously

       determined that the State had no ownership interest in the Disputed Area.4 The

       trial court dismissed the State from the entirety of the lawsuit, meaning that it

       dismissed the State from the complaint and from the Zartmans’ cross-claim.

       We will consider each set of procedural issues separately.


[10]   As to the original complaint, the State filed a Trial Rule 12(B)(6) motion to

       dismiss. A Rule 12(B)(6) motion to dismiss focuses solely on the face of the

       complaint itself, and the trial court must consider whether the allegations on the

       face of the complaint establish any set of circumstances under which a plaintiff

       would be entitled to relief. Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct.

       App. 2013), trans. denied. In this case, the Townes’ complaint makes no

       mention whatsoever of the State. It does not allege that the State has any




       4
        The apparent reason that the Zartmans are asserting the State’s interest in the Disputed Area is that if the
       Townes do not own it, then there is no basis for their claims of trespass and quiet title.

       Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015               Page 6 of 9
       ownership interest in the Disputed Area or any other portion of the property.

       Therefore, under no circumstances would the Townes be entitled to relief

       against the State. The trial court did not err by granting the State’s motion to

       dismiss it from the complaint.


[11]   As for the Zartmans’ cross-claim, Indiana Trial Rule 13(G) provides that a

       cross-claim is “any claim by one party against a co-party.” Inasmuch as the

       State was properly dismissed as a co-party, a cross-claim is not the correct lens

       through which to view the Zartmans’ claim against the State.


[12]   Furthermore, the Zartmans’ claim related to the State cannot be rescued by

       construing it differently. Indiana Trial Rule 14(A) provides that a defendant,

       “as a third-party plaintiff, may cause a summons and complaint to be served

       upon a person not a party to the action who is or may be liable to him for all or part

       of the plaintiff’s claim against him.” (Emphasis added). In this case, the Zartmans

       do not contend that the State is liable to them for any portion of the Townes’

       claims against them. Therefore, the Zartmans cannot file a third-party

       complaint against the State.


[13]   Indiana Trial Rule 19 provides the framework for mandatory joinder of persons

       needed for a just adjudication. Rule 19(A) gives two circumstances in which

       joinder is required:


               (A)      Persons to be joined if feasible. A person who is subject to
                        service of process shall be joined as a party in the action if:




       Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 7 of 9
                        (1)     in his absence complete relief cannot be accorded
                                among those already parties; or


                        (2)     he claims an interest relating to the subject of the
                                action . . . .


[14]   In this case, the State has consistently maintained that it does not own the

       Disputed Area. And to the extent its ownership is debatable, it filed a

       disclaimer of interest that relinquished any and all ownership rights it may have

       had to that property. Therefore, there is no reason that, in the State’s absence,

       complete relief cannot be accorded between the Townes and the Zartmans.

       And since the State claims no interest whatsoever, section 19(A)(2) does not

       apply.


[15]   Finally, Trial Rule 20 sets forth the rules for permissive joinder of parties. It

       provides as follows:


                (1)     All persons may join in one [1] action as plaintiffs if they
                        assert any right to relief jointly, severally, or in the
                        alternative in respect of or arising out of the same
                        transaction, occurrence, or series of transactions or
                        occurrences and if any question of law or fact common to
                        all these persons will arise in the action.


                (2)     All persons may be joined in one [1] action as defendants
                        if there is asserted against them jointly, severally, or in the
                        alternative, any right to relief in respect of, or arising out
                        of, the same transaction, occurrence, or series of
                        transactions or occurrences and if any question of law or
                        fact common to all defendants will arise in the action.


       Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015   Page 8 of 9
       Here, the State asserts no right to relief, so subsection (1) does not apply. With

       respect to subsection (2), no “right to relief” has been “asserted” against the

       State, so it may not be joined as a defendant.


[16]   Given that the State has explicitly disclaimed any and all interest in the

       Disputed Area, there is simply no procedural mechanism for it to be added as a

       party to this litigation.5 And this result is the right one, inasmuch as the State

       has no proverbial dog in the fight. Consequently, the trial court did not err by

       dismissing the State from this litigation. We also find no error in the trial

       court’s order following the bench trial.


[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Robb, J., concur.




       5
        Furthermore, the trial court did not err by determining that the State had no interest in the Disputed Area,
       given the State’s explicit disclaimer of any and all interest.

       Court of Appeals of Indiana | Memorandum Decision 25A05-1410-PL-495 | August 25, 2015              Page 9 of 9
