                                                                               FILED
                                                                       Oct 11 2019, 9:00 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEES
Mark A. Frantz                                             Bryce Runkle
Jordan L. Tandy                                            Peru, Indiana
Downs Tandy & Petruniw, P.C.
Wabash, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Stephen J. Presley,                                        October 11, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-MI-88
        v.                                                 Appeal from the Miami Superior
                                                           Court
Daniel S. McCain and                                       The Honorable Richard A.
Joseph D. DeRozier,                                        Maughmer, Special Judge
Appellees-Defendants                                       Trial Court Cause No.
                                                           52D01-1705-MI-138



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019                                 Page 1 of 10
[1]   Stephen Presley appeals the trial court’s order quieting title to two small parcels

      of land in Daniel McCain and Joseph DeRozier, arguing that the trial court

      erred because there was insufficient evidence proving that the Appellees had

      acquired ownership through adverse possession. Finding that the trial court did

      err, we reverse and remand with instructions.


                                                      Facts
[2]   Presley, McCain, and DeRozier own three adjacent properties comprising Lot

      164 in Peru, Indiana. DeRozier owns the property at 85 East Fifth Street, and

      his property is directly west of Presley’s property, which is at 87 East Fifth

      Street. McCain’s property lies directly south of DeRozier’s and Presley’s

      properties at 16 North Huntington Street. DeRozier purchased his property in

      1998 from Mark Allen, who had resided on the property since 1984. DeRozier

      himself lived on the property for two years before he moved out and started

      leasing his home to different tenants. Presley purchased his property from

      Danny Rasner in 2002. McCain purchased his property in 1999.


[3]   The two small parcels of land in dispute are as follows: (1) a strip of land,

      referred to by all parties as “Dog Run,” that runs north to south between

      DeRozier’s and Presley’s properties; and (2) a small patch, referred to by all

      parties as the “Flower Bed,” that runs west to east between Presley’s property to

      the north and McCain’s property to the south. See Appellees’ Suppl. App. Vol.

      III p. 75.



      Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019        Page 2 of 10
[4]   Dog Run is part of an alleyway that is 4.2 to 5.7 feet wide and is enclosed by a

      gate at the north end of the parcel. Appealed Order p. 1. According to the

      original 1837 plat, Dog Run is a roughly two-foot-wide strip of land abutting

      the boundary line separating the two properties on one side and Presley’s home

      on the other. The Flower Bed is a small parcel that is roughly 2.9 feet wide and

      is approximately 45 square feet. It is located just south of Presley’s garage and

      abuts McCain’s property line. A fence runs along the southern border of

      Presley’s garage, with fences bordering the Flower Bed on both its western and

      eastern perimeters. These fences enclosing the Flower Bed existed at the time

      McCain purchased his property. Pursuant to the original plat, Presley legally

      owns both Dog Run and the Flower Bed.
                                                                                         Locked Gate
                                                        “DOG RUN”




       DeRozier Home                                                        Presley Home
       85 East Fifth Street                                                 87 East Fifth Street



         Property Boundary Lines
                                                                           Presley’s
                                                                           Garage


                                                              “FLOWER BED”



                                                                     Fences

                                        McCain Home
                                        16 North Huntington Street



      Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019                           Page 3 of 10
[5]   The following represents a history of the relationships among these different

      property owners and their interactions with Dog Run and the Flower Bed:


          • At some point in time, Allen and Rasner built the northern gate that
            encloses Dog Run. Allen gave Rasner standing permission to access Dog
            Run through the gate. The gate had no lock. The gate was installed
            because Allen had small children.
          • Shortly after DeRozier and Presley bought their properties from Allen
            and Rasner, respectively, DeRozier began requiring Presley—the new
            owner—to ask for permission to access Dog Run.
          • DeRozier stopped regularly visiting the property after he started leasing it
            to new tenants. During this time, Presley would frequently access Dog
            Run without seeking DeRozier’s permission.
          • Eventually, one of DeRozier’s tenants, Rebecca Cover, notified
            DeRozier that a man unknown to her (Presley) was repeatedly using Dog
            Run to get to the backyard. Consequently, in November 2016, DeRozier
            placed a lock on the gate and put up a “Private [P]roperty, [N]o
            [T]respassing” sign. Tr. Vol. II p. 37. DeRozier informed his tenants that
            he would allow Presley to access Dog Run only during certain times and
            only with his permission.
          • With regard to the Flower Bed, it, along with the fences enclosing it, had
            been in existence since the time McCain purchased his property in 1999.
            Presley would ask McCain for permission to access the Flower Bed so
            that McCain’s dog would not get out. McCain testified that he never
            denied Presley access to the Flower Bed. McCain grew flowers, mowed
            the grass, and installed stepping stones in the Flower Bed after he first
            bought his property.
          • Within the last ten years, McCain attempted to build a shed in the
            Flower Bed. To prevent this from happening, Presley contacted the City
            of Peru. It was determined that McCain could not construct the shed.
            McCain testified that he has not maintained the Flower Bed since then.
            At some point, McCain installed a planter’s box that interferes with
            Presley’s maintenance and upkeep of the garage.


[6]   On May 22, 2017, Presley filed a pro se complaint for ejectment and damages

      against DeRozier and Presley, arguing that they do not own the two contested

      parcels. The matter was set for an August 2, 2017, bench trial, but was


      Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019        Page 4 of 10
      continued per Presley’s requests. On August 3, 2017, the trial court judge

      recused himself upon accusations by Presley that he would not be fair and

      impartial. A special judge was appointed on August 7, 2017.


[7]   That same day, DeRozier and McCain filed a joint motion for summary

      judgment. Over the next thirty days, Presley filed ten different pro se motions,

      including a motion for leave to amend the pleadings, which DeRozier and

      McCain moved to strike. The trial court held a December 13, 2017, hearing on

      the various motions. At the hearing’s conclusion, the trial court denied

      DeRozier and McCain’s joint motion for summary judgment and granted

      Presley’s motion for leave to amend.


[8]   On December 29, 2017, DeRozier and McCain filed a motion for a more

      definite statement and a counterclaim arguing that they had acquired ownership

      of the parcels through adverse possession. All parties then filed separate

      motions for summary judgment, which the trial court denied on May 2, 2018.


[9]   Following an October 31, 2018, bench trial on the competing quiet title claims,

      the trial court issued an order on November 2, 2018, finding that DeRozier and

      McCain had acquired ownership of Dog Run and the Flower Bed, respectively,

      through adverse possession. However, the trial court granted Presley an

      easement to access the two parcels. Shortly thereafter, both sides moved to

      correct error. In its modified final order, the trial court granted DeRozier and

      McCain’s motions to correct error and vacated the easement awarded to

      Presley. Presley now appeals.


      Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019         Page 5 of 10
                                Discussion and Decision
[10]   Presley’s sole argument on appeal is that the trial court erred when it awarded

       McCain and DeRozier title to the two parcels. Specifically, Presley contends

       that McCain and DeRozier failed to prove by clear and convincing evidence

       that they had acquired ownership of those parcels through adverse possession.


[11]   Our standard of review is well established:


               On appellate review of claims tried without a jury, we will not set
               aside the trial court’s findings and judgment unless they are clearly
               erroneous and we give due regard to the trial court’s ability to
               assess the credibility of the witnesses. Ind. Trial Rule 52(A). A
               judgment will be clearly erroneous when there is no evidence
               supporting the findings or the findings fail to support the
               judgment[] . . . . 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. To determine
               that a finding or conclusion is clearly erroneous, an appellate
               court’s review of the evidence must leave it with the firm
               conviction that a mistake has been made. Where cases present
               mixed issues of fact and law, we have described the review as
               applying an abuse of discretion standard.


       Dewart v. Haab, 849 N.E.2d 693, 695 (Ind. Ct. App. 2006) (some internal

       citations omitted). We will not reweigh the evidence, but will consider the

       evidence in a light most favorable to the judgment. Fobar v. Vonderahe, 771

       N.E.2d 57, 59 (Ind. 2002).


[12]   Our Supreme Court in Fraley v. Minger laid out the four elements that a claimant

       must prove in order to acquire ownership of property through adverse

       possession:
       Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019        Page 6 of 10
                (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 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).


       829 N.E.2d 476, 486 (Ind. 2005). The claimant must prove all four elements by

       clear and convincing evidence. Id. The statutorily required period of time for

       the duration element is ten years. Ind. Code § 34-11-2-11.


[13]   Based on the trial court’s final order1 and the record before us, there is a dearth

       of evidence proving that DeRozier and McCain acquired ownership of Dog

       Run and the Flower Bed, respectively, through adverse possession.




       1
        Though the trial court issued some basic findings of facts in its final order, there are virtually no facts
       pertaining to the trial court’s adverse possession analysis. Given the extremely fact-sensitive nature of
       property disputes, we urge trial courts going forward to include as many facts as possible in order to explain
       how and why they reached their ultimate decisions.

       Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019                                 Page 7 of 10
                                                      Dog Run

[14]   First, regarding Dog Run, there is no evidence that DeRozier’s actions sufficed

       to show actual or constructive notice that he wanted to, or did, have exclusive

       control over Dog Run until November 2016. Rather, for the entirety of Allen

       and Rasner’s neighborly relationship and for most of DeRozier and Presley’s

       neighborly relationship, Rasner and Presley accessed Dog Run with relative

       ease and frequency. Rasner assisted Allen with construction of the gate under

       the belief that it was used to safeguard Allen’s small children, not because Allen

       wanted to exclude Rasner from Dog Run. Allen gave Rasner standing

       permission to access Dog Run whenever he wanted, thereby undercutting any

       argument that Rasner (or Presley) did not also have control of that disputed

       land. See Altevogt v. Brand, 963 N.E.2d 1146, 1152-53 (Ind. Ct. App. 2012)

       (holding that an admission that others have a right to use a trail and evidence

       that others do use the trail are “fatal” to claimants’ adverse possession claims).

       DeRozier has not even lived on the property since 2000, and the record shows

       that Presley would frequently access Dog Run without explicit permission from

       DeRozier since 2000.


[15]   It was not until November 2016 that DeRozier put Presley on notice that he

       wanted exclusive control over Dog Run by placing a lock and “no trespassing”

       sign on the gate. This timeline falls short of the ten-year period required for an

       adverse possession claim. Because nothing in the record suggests that Allen

       prohibited Rasner from using Dog Run for the thirteen years Allen owned the

       property, DeRozier has no time to tack on as a party in privity. At most,

       Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019        Page 8 of 10
       therefore, DeRozier’s time would have commenced in 2016, meaning that

       fewer than three years have accrued.


[16]   This paucity of evidence proffered by DeRozier leads us to conclude that

       DeRozier has not proved all four elements of adverse possession by clear and

       convincing evidence. Therefore, the trial court erred when it quieted title to

       Dog Run in DeRozier.


                                                     Flower Bed

[17]   Next, regarding the Flower Bed, there is a similar lack of evidence proving that

       McCain intended to exercise exclusive control over the parcel. As with Dog

       Run, Presley could access the Flower Bed whenever he wanted, even if he did

       not seek McCain’s permission in advance. In other words, McCain and Presley

       acknowledged dual use of the Flower Bed throughout the entirety of their time

       living next to one another. See Ludban v. Burtch, 951 N.E.2d 846, 852 (Ind. Ct.

       App. 2011) (holding that claimant fails to establish ownership of a strip of land

       by adverse possession after conceding that another party frequently used it).

       Despite the presence of the fences surrounding the perimeter of the Flower Bed,

       both Presley and McCain testified that those fences were there at the time

       McCain moved in. As such, McCain cannot point to these fences as evidence

       that he intended to maintain exclusive control over the Flower Bed.


[18]   Moreover, Presley defeated any adverse possession claim when he notified the

       City of Peru in late 2014 about McCain’s plan to build a shed on the Flower

       Bed. In other words, Presley undermined any claim by McCain to assert


       Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019       Page 9 of 10
       exclusive control. Ultimately, the city ruled that a shed would have been too

       close to Presley’s garage. After this litigation concluded, McCain did not

       maintain the Flower Bed’s upkeep. Instead, McCain installed a planter’s box,

       which led Presley to initiate court proceedings once again because the box

       interfered with Presley’s use of the garage.


[19]   Finally, like DeRozier, McCain has not met the ten-year requirement. Though

       McCain had been living on his property since 1999, he has offered no evidence

       to show when the ten-year clock began ticking or proving that he, in fact,

       satisfied the duration element. Based on this record, we can only find that

       McCain did not prove by clear and convincing evidence that he had acquired

       ownership of the Flower Bed through adverse possession.


[20]   Thus, we find that the trial court erred when it quieted title to two parcels in

       DeRozier and McCain. In evaluating all the evidence in a light most favorable

       to the judgment, we find that title should be quieted in favor of Presley, as the

       rightful and legal owner of the two parcels.


[21]   The judgment of the trial court is reversed and remanded with instructions to

       enter judgment in favor of Presley.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-88 | October 11, 2019        Page 10 of 10
