      MEMORANDUM DECISION                                                                        FILED
                                                                                             Apr 15 2016, 8:25 am
      Pursuant to Ind. Appellate Rule 65(D),                                                     CLERK
      this Memorandum Decision shall not be                                                  Indiana Supreme Court
                                                                                                Court of Appeals
      regarded as precedent or cited before any                                                   and Tax Court


      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jeffry G. Price                                          Patrick J. Roberts
      Coleman Beckley                                          Sharon L. Breitenbach
      Peru, Indiana                                            Roberts Law Firm
                                                               Peru, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kathryn Arnold,                                          April 15, 2016
      Appellant-Defendant/Counterclaimant,                     Court of Appeals Case No.
                                                               52A02-1511-PL-2062
              v.                                               Appeal from the Miami Superior
                                                               Court
      Dennis Arnold,                                           The Honorable J. David Grund,
      Appellee-Plaintiff/Counterclaim                          Judge
      Defendant                                                Trial Court Cause No.
                                                               52D01-1310-PL-352



      Crone, Judge.


[1]   Kathryn Arnold appeals the trial court’s judgment in favor of Dennis Arnold’s

      ejectment claim and against her adverse possession counterclaim. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016              Page 1 of 3
[2]   In 1974, William and Esther Arnold conveyed property via warranty deed to

      their son Dennis and his wife Jo Ann, subject to a life estate. William died in

      1978 and Esther in 1979. After Esther’s death, Dennis and Jo Ann divided the

      property into two tracts and lived in a home on one of the tracts. They allowed

      Kenneth and Kathryn Arnold, Dennis’s brother and sister-in-law, to live rent-

      free in William and Esther’s former home on the other tract. Kenneth died in

      2004, and the home fell into disrepair. In 2006, Dennis sent contractors to

      work on the home, and Kathryn “drove them off.” Tr. at 15. In 2011, Dennis

      sent to Kathryn a written demand to vacate the property, which she ignored.


[3]   In 2013, Dennis filed suit to eject Kathryn from the property. She filed a

      counterclaim for adverse possession, which requires the claimant to prove by

      clear and convincing evidence that she demonstrated intent to claim full

      ownership of the property “superior to the rights of all others, particularly the

      legal owner[,]” and performed actions “sufficient to give actual or constructive

      notice to the legal owner of [her] intent and exclusive control” of the property

      for ten years, among other things. Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.

      2005). After a bench trial, the trial court entered judgment in favor of Dennis’s

      claim and against Kathryn’s counterclaim. Kathryn appealed.


[4]   On appeal, we consider only the evidence favorable to the trial court’s findings

      and judgment and will not reweigh the evidence or assess witness credibility.

      Paul v. Stone Artisans, Ltd., 20 N.E.3d 883, 886 (Ind. Ct. App. 2014). “We will

      not disturb the trial court’s findings or judgment unless they are clearly

      erroneous.” Id. In its judgment, the trial court found that Kenneth and

      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016   Page 2 of 3
      Kathryn lived in the home with Dennis and Jo Ann’s permission and

      acquiescence. Appellant’s App. at 9 (finding 6). This finding, which is

      supported by Dennis’s testimony, is dispositive of Kathryn’s appeal, which

      focuses on whether she substantially complied with the statutory requirement to

      pay taxes on the property. See Lanham v. Marley, 475 N.E.2d 700, 706 (Ind. Ct.

      App. 1985) (affirming denial of adverse possession claim where claimants used

      property “with the permission, knowledge and consent of the fee simple

      owners”: “Absent a showing of hostile use, the Lanhams’ adverse possession

      claim properly was denied.”). 1 Therefore, we affirm.


[5]   Affirmed.


      Najam, J., and Robb, J., concur.




      1
       The record establishes that Kathryn did not manifest an intent to exclude Dennis from the property until
      2006 at the earliest, which was less than ten years before he filed for ejectment. See Estate of Mark v. H.H.
      Smith Co., 547 N.E.2d 796, 800 (Ind. 1989) (“It is not enough that the occupier feels or thinks he is the owner
      or even declares he is the owner. His claim of ownership must be based on some ground justifying that
      conclusion and it must be communicated to the true owner that the occupier makes such a claim that is
      adverse or hostile to his ownership.”).

      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016                Page 3 of 3
