MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
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                                   FILED
estoppel, or the law of the case.                                     Aug 22 2018, 9:02 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANTS
Ann C. Coriden
Coriden Glover, LLC
Columbus, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul D. Boas and Doris E. Boas,                          August 22, 2018
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         18A-PL-608
        v.                                               Appeal from the Jennings Superior
                                                         Court
Hayden Methodist Church, Jon                             The Honorable Roger Duvall,
Stoner, Erin Stoner, and River                           Special Judge
Valley Financial Bank,                                   Trial Court Cause No.
Appellees-Defendants.                                    40D01-1411-PL-63




Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018                Page 1 of 6
[1]   Appellants Paul and Doris Boas (“the Boases”) appeal the trial court’s

      determination that they did not prove the elements of adverse possession. We

      affirm in part, reverse in part, and remand with instruction.


[2]   Since 1983, the Boases have owned a parcel of property in Jennings County.

      An aerial photograph taken around the time that the Boases purchased the

      property shows a row of trees between their property and property owned by

      Hayden Methodist Church (“the Church”). The row of trees runs to the north

      and terminates at a fence. The fence continues northward and encloses the

      back portion of the Boases’ property. The Boases have treated the line of trees

      and fencing as their property line and have maintained the fence and all

      property to the west of this line since 1983.


[3]   At all relevant times prior to 2008, the Church owned the entire parcel of land

      located immediately to the east of the Boases’ property. At some point in 2008,

      the Church subdivided the northern part of its property and sold approximately

      one acre to Jon and Erin Stoner (“the Stoners”).


[4]   A survey was conducted prior to the subdivision of the Church’s property. This

      survey revealed a discrepancy in the property line between the Boases’ property

      and the Church’s property. The area in question (“the Disputed Area”) was a

      triangular shaped area along the parties’ property lines. The Disputed Area was

      identified again in a subsequent survey.


[5]   The Boases’ garage has been partially located in the Disputed Area since before

      the Boases purchased the property in 1983. A shed belonging to the Boases is

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018   Page 2 of 6
      also located in the Disputed Area. In 1994 or 1995, the Boases replaced the

      original fencing and, in 2002 or 2003, rebuilt their garage. Both the new

      fencing and the garage were re-built in the exact location as the prior fence and

      garage. The Boases have always taken responsibility for the upkeep of the

      Disputed Area and have always used the land in question and mowed it or had

      it hayed. The Boases believe that they have been paying taxes on the Disputed

      Area since purchasing their property in 1983.


[6]   On November 3, 2014, the Boases filed a complaint against the Church, the

      Stoners, and River Valley Financial Bank regarding ownership of the Disputed

      Area. The Boases amended their complaint on February 19, 2015, to include

      claims of quiet title and adverse possession.


[7]   The trial court conducted a bench trial on March 24, 2017. The presiding trial

      court judge subsequently recused himself, after which the parties agreed to have

      the special judge decide the case on the existing record. On February 16, 2018,

      the trial court issued an order awarding the Boases the portion of the Disputed

      Area claimed by the Church but not the portion claimed by the Stoners. On

      appeal, the Boases challenge the portion of the trial court’s order relating to the

      Stoners.


[8]   Initially we note the Stoners did not file an appellate brief.


              When the appellee has failed to submit an answer brief we need
              not undertake the burden of developing an argument on the
              appellee’s behalf. Rather, we will reverse the trial court’s
              judgment if the appellant’s brief presents a case of prima facie

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018   Page 3 of 6
               error. Prima facie error in this context is defined as, at first sight,
               on first appearance, or on the face of it.


       Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (internal citation

       and quotation omitted).


[9]            In the appellate review of claims tried without a jury, the findings
               and judgment are not to be set aside unless clearly erroneous, and
               due regard is to be given to the trial court’s ability to assess the
               credibility of the witnesses. A judgment will be clearly erroneous
               when there is no evidence supporting the findings or the findings
               fail to support the judgment, and when the trial court applies the
               wrong legal standard to properly found facts. While findings of
               fact are reviewed under the clearly erroneous standard, appellate
               courts do not defer to conclusions of law, which are reviewed de
               novo.


       Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005) (internal citations and

       quotations omitted).


[10]   With respect to claims of adverse possession, the Indiana Supreme Court has

       held as follows:


               the 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

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018    Page 4 of 6
                 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).


Id. at 486. “The requisite period of time for adverse possession is ten years.”

Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015). “In

addition to these elements, our Legislature has added the statutory requirement

that the adverse possessor 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.” Id. (brackets and internal quotation omitted). “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.” Id. (internal quotation omitted).

“Once the elements [of adverse possession] are established, fee simple title to

the disputed tract of land is conferred upon the possessor by operation of law,

and title is extinguished in the original owner.” Snowball Corp. v. Pope, 580

N.E.2d 733, 734 (Ind. Ct. App. 1991). “Once title vests in a party at the


Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018   Page 5 of 6
       conclusion of the ten-year possessory period, the title may not be lost,

       abandoned, or forfeited, even where the party pays rent to the titleholder, agrees

       to a survey to attempt to find the true boundary line, expresses satisfaction with

       a survey whose results are inconsistent with the property adversely possessed by

       him, or states that he does not claim the land and offers to buy it.” Fraley, 829

       N.E.2d at 487 (internal citations omitted).


[11]   In this case, according to the trial court’s findings, the Boases have

       continuously demonstrated the elements of adverse possession of the entire

       Disputed Area since 1983. As such, title vested with the Boases no later than

       1993, well before the Church subdivided and sold a portion of its property to

       the Stoners in 2008. In light of the Indiana Supreme Court’s conclusion in

       Fraley, we therefore conclude that any subsequent objection to the Boases’ use

       of the Disputed Area by either the Stoners or the Church was insufficient to

       undermine the Boases’ ownership of the Disputed Area. Consequently, the

       trial court erred by concluding that the Boases failed to prove their claim of

       adverse possession with regard to the portion of the Disputed Area claimed by

       the Stoners. On remand, we instruct the trial court to enter judgment in favor

       of the Boases on this point.


[12]   Judgment affirmed in part, reversed in part, and remanded with instruction.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-608 | August 22, 2018   Page 6 of 6
