MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            FILED
Memorandum Decision shall not be regarded as                      Jul 28 2017, 6:23 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                   CLERK
                                                                   Indiana Supreme Court
collateral estoppel, or the law of the case.                          Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Jacqueline B. Ponder                                      Kevin D. Koons
Felson Bowman                                             Kroger, Gardis & Regas, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana

Mary M. Runnells                                          Peter G. Gundy
Bloomington, Indiana                                      Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jamison L. Beetz and Leah J.                              July 28, 2017
Beetz,                                                    Court of Appeals Case No.
                                                          41A04-1612-PL-2755
Appellants-Plaintiffs,
                                                          Appeal from the Johnson Superior
        v.                                                Court.
                                                          The Honorable Marla K. Clark,
                                                          Judge.
Joe D. Bryant and Anne E.                                 Trial Court Cause No.
Bryant Revocable Trust, Joe D.                            41D04-1601-PL-15
Bryant and Anne E. Bryant,
Stephen A. Legan and Jenifer A.
Legan, and Ron Zimmerman and
Donna Zimmerman,
Appellees-Defendants.




Shepard, Senior Judge



Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017       Page 1 of 8
[1]   In this dispute over the applicability of an easement, Jamison L. Beetz and

      Leah J. Beetz appeal the trial court’s dismissal of their complaint. We reverse

      and remand.


[2]   Prior to 1978, the Gluff family owned property bordering Stones Crossing Road

      in Johnson County. A small creek runs along the road, and the Gluffs used a

      small bridge for road access. The Gluffs divided their land into four parcels and

      sold them over time. Only one of the four parcels, Parcel D, borders Stones

      Crossing Road. The other three, Parcels A, B, and C, are on the opposite side

      of Parcel D from the road and are landlocked.


[3]   In 1978, Joe D. Bryant and Anne E. Bryant bought Parcel C from the Gluffs.

      In 1979, Gail Gluff and Mary Jo Gluff granted an easement to the Bryants,

      allowing the Bryants the right of “ingress and egress and for utilities over, under

      and across the easement premises.” Appellants’ App. Vol. III, p. 17. The

      easement included the bridge and ran south along the western border of Parcel

      D to a point where Parcels A, B, and C could access it.


[4]   The Bryants later sued the Gluffs for reasons not stated in the record, and the

      case was litigated in the Brown Circuit Court. At that point, the Gluffs still

      owned Parcels A and D. The Bryants owned Parcel C, and John F. Wright had

      purchased Parcel B. On March 12, 1982, the court issued an Agreed Judgment

      (the 1982 Judgment) that applied to Gail Gluff, the Bryants, Wright, and their

      successors in interest. Among other terms, the 1982 Judgment included a new

      easement, which applied to all three landlocked parcels. The new easement


      Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 2 of 8
      retained the same boundaries as the 1979 easement, but the new easement was

      described as “exclusive.” Id. at 22. The Bryants recorded the 1982 Judgment in

      Johnson County in their chain of title for Parcel C, but Gluff did not do the
                                  1
      same for Parcel D.


[5]   Later, the Bryants conveyed their interest to a trust, of which they were the

      trustees. Gluff sold Parcel A to Ron and Donna Zimmerman, and Stephen A.

      Legan and Jenifer A. Legan purchased Parcel B. Gluff sold Parcel D, the non-

      landlocked parcel, to another person, who in turn sold it to the Beetzes in 2013.


[6]   At the time of the 2013 purchase, the Beetzes were aware of the 1979 easement

      but not the easement contained in the 1982 Judgment. Over the years, they

      mowed the grass along the easement, paid property taxes on the easement, and

      included the easement in their homeowners’ insurance. None of the other

      property owners contributed to the taxes or insurance. The Beetzes use the

      bridge to access their home on Parcel D.


[7]   The current case began after a fire truck struck and damaged the bridge.

      Disputes arose among the property owners about who had the authority to

      accept payment from the fire department for damages, hire a contractor, and

      pay for bridge repairs.




      1
          The record does not reflect whether Gluff recorded the 1982 Judgment in Parcel A’s chain of title.


      Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017                 Page 3 of 8
[8]    On January 29, 2016, the Beetzes sued the Bryant Trust, the Bryants, the

       Legans, and the Zimmermans, seeking declaratory judgment. The defendants

       filed a motion to dismiss, citing Indiana Trial Rule 12(B)(6). The court granted

       the motion and dismissed the complaint without prejudice.


[9]    Next, the Beetzes filed an amended complaint asking the court to determine:

       (1) if the easement contained in the 1982 Judgment applies to the Beetzes; (2)

       whether, if the 1982 Judgment applies to the Beetzes, they have the right and

       the duty to repair and maintain the easement along with the owners of the other

       parcels; (3) if the Beetzes have the exclusive right to receive the fire

       department’s payment; and (4) if the defendants’ failure to maintain the

       easement has damaged the Beetzes. The defendants again moved to dismiss

       under Rule 12(B)(6). The court dismissed the complaint with prejudice and this

       appeal followed. On appeal the Beetzes pursue the same four claims.


[10]   Pursuant to Indiana Trial Rule 12(B)(6), a defendant may move to dismiss a

       complaint for “failure to state a claim upon which relief may be granted.” Our

       standard of review is:

               A motion to dismiss for failure to state a claim tests the legal
               sufficiency of the claim, not the facts supporting it. When ruling
               on a motion to dismiss, the court must view the pleadings in the
               light most favorable to the nonmoving party, with every
               reasonable inference construed in the non-movant’s favor. We
               review a trial court’s grant or denial of a Trial Rule 12(B)(6)
               motion de novo. We will not affirm such a dismissal unless it is
               apparent that the facts alleged in the challenged pleading are
               incapable of supporting relief under any set of circumstances.



       Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 4 of 8
       Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (citations and quotations

       omitted).


[11]   The Beetzes first argue they are not bound by the 1982 Judgment, and the

       easement contained therein, because they had no notice of its existence.


[12]   In State v. Anderson, 241 Ind. 184, 170 N.E.2d 812 (1960), the State sought to

       condemn a piece of property, claiming it had acquired an easement over most

       of the land from the landowner’s predecessor in interest. The landowner noted

       the document granting the easement had not been recorded in the county where

       the property was located and further claimed she had no actual notice of the

       easement. The State lost in the trial court and appealed.


[13]   The Indiana Supreme Court explained, “‘The purchaser of a land subject to an

       easement expressly created by grant or reservation in an unrecorded deed is not

       affected by it if he had no notice of the servitude.’” 170 N.E.2d at 814 (quoting

       Thompson on Real Property, Vol. 1, § 384, p. 623). The Court determined the

       landowner was not bound by the easement because the grant of the easement

       was not recorded in the property’s chain of title. Further, the landowner had no

       actual notice of the easement because she had asked the seller about easements

       and was told the State had no interest in the land other than a narrow, openly-

       marked strip of land along the road. In addition, the landowner had obtained

       an abstract of title that did not disclose the existence of the easement. The

       Court concluded, “We therefore hold that appellee did all that the law required




       Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 5 of 8
       of her to do and that appellee’s title cannot be defeated by a prior, unrecorded

       interest of the state in the land.” Id. at 815-16.


[14]   Likewise, in State v. Cinko, 155 Ind. App. 357, 292 N.E.2d 847 (1973), the State

       sought to remove an advertising sign from a landowner’s property, claiming it

       encroached upon a right of way it had acquired from the landowner’s

       predecessor in interest. The document granting the right of way was never

       recorded in the county where the property was located. A panel of this Court,

       following Anderson, concluded the landowner had no notice, either actual (in

       the form of markers on the property) or constructive (in the form of a recorded

       easement), and was not bound by the grant of the right of way.


[15]   In the current case, the 1982 Judgment was not recorded in Johnson County in

       the chain of title for the Beetzes’ land. Further, the Beetzes’ complaint alleges

       they had no actual notice of the judgment’s existence, asserting they were aware

       of only the 1979 easement. Per our standard of review, we accept the allegation

       as true. Following Anderson, we conclude the Beetzes have alleged facts

       pursuant to which they would be entitled to declaratory relief on their claim

       that they are not bound by the 1982 Judgment and easement.


[16]   The other property owners claim the Beetzes, as successors in interest to the

       Gluffs, are bound by the 1982 Judgment pursuant to res judicata even if they

       had no notice. The doctrine of res judicata serves to prevent the litigation of

       matters that have already been litigated. TacCo Falcon Point, Inc. v. Atlantic Ltd.

       Partnership XII, 937 N.E.2d 1212 (Ind. Ct. App. 2010). They cite Skelton v.


       Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 6 of 8
       Sharp, 161 Ind. 383, 67 N.E. 535 (Ind. 1903), in which an owner of land in

       Pulaski County filed a quiet title action against Moore, who also claimed to

       own the land. The Pulaski Circuit Court found in favor of the landowner.

       Moore did not appeal but later deeded the land to a third party, who sold it to

       Skelton. Skelton was unaware of the prior court judgment, which was not

       recorded.


[17]   The landowner sued Skelton, seeking again to quiet title to the land. The

       appellees prevailed. On appeal, Skelton claimed the decree did not bind him

       because he had no notice of it. The Indiana Supreme Court stated, “Our cases

       have steadily maintained that such a decree is a conclusive adjudication of title,

       not only as against the grantee, but as against all claiming under him.” 67 N.E.

       at 536. The Court concluded Skelton had no title to the land unless derived

       through Moore and was bound by the judgment as a successor to Moore.


[18]   Skelton presents different circumstances than the current case because it did not

       involve an easement. In any event, we choose to follow the Indiana Supreme

       Court’s holding in Anderson, which directly addresses the issue presented here.


[19]   The Beetzes’ remaining three claims are all contingent to some extent upon

       resolution of the Beetzes’ argument that they are not subject to the 1982

       Judgment. That issue, and the three claims, must be addressed on remand.


[20]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings.



       Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 7 of 8
[21]   Reversed and remanded.


       Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017   Page 8 of 8
