                                                                           FILED
                                                                      Jun 28 2016, 9:26 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEES
Brett E. Osborne                                           Matthew S. Schoettmer
Hocker & Associates, LLC                                   Van Valer Law Firm, LLP
Indianapolis, Indiana                                      Greenwood, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey B. Morgan and Wendi S.                             June 28, 2016
Morgan,                                                    Court of Appeals Case No.
Appellants-Plaintiffs/Counter-                             41A05-1512-PL-2267
defendants,                                                Appeal from the Johnson Superior
                                                           Court
        v.                                                 The Honorable Kevin M. Barton,
                                                           Judge
Andrew White and Holly White,                              Trial Court Cause No.
Appellees-Defendants/Counter-                              41D01-1402-PL-21
claimants.



Brown, Judge.




Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016                       Page 1 of 14
[1]   Jeffrey B. Morgan and Wendi S. Morgan (collectively, the “Morgans”) appeal

      the trial court’s findings of fact, conclusions and judgment in favor of Andrew

      White and Holly White (collectively, the “Whites”) on the Whites’

      counterclaim for adverse possession and quiet title. The Morgans raise one

      issue which we revise and restate as whether the court’s judgment is clearly

      erroneous. We affirm.


                                         Facts and Procedural History1

[2]   In 1983 or 1984, Michael Coram owned Lot Number 32 of Pleasant Creek

      Acres in Greenwood, Indiana (“Lot 32”), and he built a home thereon. Almost

      immediately after completing the home, Coram erected a chain link fence to

      enclose the backyard of Lot 32. Soon thereafter, the neighbor who owned a

      home on Lot Number 33 (“Lot 33”), which is adjacent to and south of Lot 32,

      also constructed a chain link fence. The neighbor requested that he be allowed




      1
        The Morgans did not request that a transcript of the hearing be prepared in their notice of appeal, and a
      transcript was not prepared or submitted on appeal. Also, the Appellants’ Appendix consists of the following
      documents: the chronological case summary, the Morgans’ complaint, the Whites’ counterclaim and third
      party complaint to quiet title, the court’s order denying the Whites’ motion for summary judgment, and the
      court’s findings of fact, conclusions of law and judgment. The facts discussed in the parties’ briefs and recited
      in this opinion are based upon the court’s order.
      We observe that Indiana courts have addressed instances in which an appellant does not submit a transcript
      from trial proceedings in which the trial court enters findings, noting that although “the ‘failure to include a
      transcript works a waiver of any specifications of error which depend upon the evidence,’” such failure is not
      fatal to an appellant’s appeal. Herr v. Carter Lumber, Inc., 888 N.E.2d 853, 854 (Ind. Ct. App. 2008) (quoting
      In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Grp., 605 N.E.2d 150, 160 (Ind.
      1992))), trans. denied; see also Pabey v. Pastrick, 816 N.E.2d 1138, 1141-1142 (Ind. 2004) (noting that the
      appellant “argued that no transcript was necessary because he did not contend that the trial court's findings of
      fact were unsupported by the evidence; in fact, he repeatedly cited the trial court's findings of fact and did not
      reference facts outside those found by the trial court,” and holding that “the appellant’s failure to submit a
      transcript was not a basis for dismissing the appellant's appeal”), reh’g denied.



      Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016                             Page 2 of 14
      to connect his fence to Coram’s fence. The neighbor paid Coram toward the

      cost of the existing fencing and constructed the fence around the backyard of

      Lot 33, connecting it with the southern portion of the fence that Coram erected

      around the backyard of Lot 32.


[3]   In 1998, the Whites purchased Lot 33 and received a survey location report at

      the closing. Based upon this survey location report, the Whites believed that

      the property line between Lot 33 and Lot 32 was the chain link fence line.

      Based upon this belief, the Whites have always cared for all of the property

      located south of the chain link fence, as well as the property south of a line

      obtained if the chain link fence was extended to the street. The Whites have

      paid property taxes on Lot 33 since 1998 by making escrow payments to their

      mortgagee’s servicing agent.


[4]   Sometime about the year 2000, after the Whites had purchased Lot 33, the

      then-owner of Lot 32, known as “Blackie,” desired to install a privacy fence,

      asked the Whites if they wanted to take down the section of the chain link fence

      they shared and replace it with a privacy fence, and the Whites declined.

      Appellants’ Appendix at 27. Blackie removed the chain link fence with the

      exception of the southerly portion of the fence that ran between Lot 33 and Lot

      32 and installed a privacy fence around the backyard of Lot 32, which was

      north of the chain link fence.


[5]   In 2003, the Morgans closed on their purchase of Lot 32 and the home situated

      thereon. Prior to closing, the Morgans believed that the Whites owned the


      Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 3 of 14
      chain link fence and that it was located on the Whites’ property, but after

      closing and reviewing a survey location report they had received, they believed

      that, while the Whites owned the chain link fence, that fence was located on

      Lot 32.


[6]   In April of 2003, Jeffrey Morgan had a conversation with Andrew White

      regarding the Morgans’ belief that the chain link fence encroached onto their

      property, i.e., Lot 32. In the conversation, Jeffrey Morgan asserted that the

      chain link fence was on the Morgans’ property, and Andrew White responded

      “that he was not going to voluntarily change the location of the fence.” Id. at

      37.


[7]   During the period that the Morgans have lived at Lot 32, they have maintained

      the property to the north of the chain link fence, and the Whites have

      maintained the property to the south of the chain link fence. In 2009, the

      Morgans planted eight or nine juniper bushes in the front yard of Lot 32 at the

      south end of Lot 32 and north of a line that would extend from the chain link

      fence to the street. In August of 2013, Andrew White trimmed the bushes

      because he believed the branches were across the property line, they would

      scratch his wife as she mowed the grass, and they were killing grass on his

      property as determined from the chain link fence line.


[8]   On February 13, 2014, the Morgans filed a complaint (the “Complaint”)

      alleging Count I, trespass to land related to Andrew trimming the juniper

      bushes; and Count II, complaint to compel removal of fence. On April 8, 2014,


      Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 4 of 14
      the Whites filed their Counterclaim and Third-Party Complaint to Quiet Title

      to Real Estate (the “Counterclaim”) alleging Count I, adverse possession and

      quiet title; Count II, title by acquiescence and quiet title; and Count III, slander

      of title. On July 8, 2015, the court denied a motion for summary judgment filed

      by the Whites.


[9]   On August 26, 2015, the court held a trial on the Complaint and Counterclaim,

      and on November 23, 2015, pursuant to a motion by the Morgans, it entered its

      findings of fact, conclusions and judgment (the “Order”) containing detailed

      findings and conclusions and ruling in favor of the Whites on the Morgans’

      two-count complaint, in favor of the Whites on their count alleging adverse

      possession and quiet title, and in favor of the Morgans on the Whites’ other

      counts. The Order contained findings consistent with the foregoing and

      specifically noted that neither party introduced evidence of a staked survey to

      establish the property line and that, instead, the court admitted a survey

      location report for the limited purpose of state of mind of the Whites regarding

      their belief as to the property line. Under the heading “CONCLUSIONS,” the

      Order stated the following in part:

              2. A significant aspect of the case is that neither side presented
              evidence as to the location of the property line. Each side
              testified to their opinion of where the property line was based
              upon a survey location report that each side received at the time
              that the respective properties were purchased. As the Court
              noted in its Order on summary judgment, a survey location
              report does not have the same precision as a staked survey. As
              the Court also noted in it’s [sic] Order on summary judgment, the
              lack of precision is set forth in the disclaimer in the survey. Even
      Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 5 of 14
        assuming that the parties properly developed their good faith
        belief upon the survey location reports received at closing, no
        evidence explained the apparent contradiction within the reports.


                                               *****


        16. The Court turns to the Counterclaim and Third Party
        Complaint. The White’s first cause of action is pled in adverse
        possession and quiet title.


        17. The Court begins by noting that the Whites did not introduce
        evidence as to the true property line. The Whites believed that
        they owed [sic] up to the fence line based upon the survey
        location report. However, notwithstanding their belief that title
        to the property is established by deed, the Whites assert that the
        property has been acquired by adverse possession. No survey
        was introduced into evidence. A legal description was not
        provided as to the property subject to acquisition by adverse
        possession. The Court will consider the adverse possession claim
        on the assumption that the true property line is not the fence line,
        and that an unknown quantity of property is subject to claim
        under adverse possession. The Court will consider [sic] then
        consider the quiet title action. Issues pertaining to the ownership
        and description of property will be considered in the quiet title
        action.


                                               *****


        27. The Morgans held the opinion that the property line was
        approximately one to two feet south of the chain link fence line.
        The Whites held the opinion that the chain link fence line was
        the property line.




Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016    Page 6 of 14
       Id. at 32, 34-35, 37. The court then engaged in a thoughtful examination of the

       elements of adverse possession and concluded that “the Whites have acquired

       title to the fence line by adverse possession.” Id. at 46. It also concluded

       regarding the Whites’ action for quiet title that “although the Whites did not

       introduce evidence of a survey or provide a legal description of the property,

       [they] did identify monumentation, i.e. the existing fence line, so as to permit

       the line to be established with a surveyor,” and it quieted title to the disputed

       parcel in the Whites. Id. at 50. In effecting its decision, the court ordered the

       Whites to “obtain at their expense a staked survey of the existing chain link

       fence line and a legal description and file same” and that the parties execute

       reciprocal quitclaim deeds confirming title utilizing the chain link fence line as

       the property boundary between Lot 32 and Lot 33. Id. at 51.


                                                     Discussion

[10]   The issue is whether the court’s judgment is clearly erroneous. When a trial

       court enters findings of fact and conclusions thereon, findings control only as to

       the issues they cover and a general judgment will control as to the issues upon

       which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.

       1997). A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id. When a court has

       made special findings of fact, an appellate court reviews sufficiency of the

       evidence using a two-step process. Id. First, it must determine whether the

       evidence supports the trial court’s findings of fact, and second it must determine

       whether those findings of fact support the trial court’s conclusions. Id.

       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016    Page 7 of 14
       Findings will only be set aside if they are clearly erroneous. Id. Findings are

       clearly erroneous only when the record contains no facts to support them either

       directly or by inference. Id. A judgment is clearly erroneous if it applies the

       wrong legal standard to properly found facts. Id. In order 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.

       Id. We review questions of law de novo and owe no deference to the trial court’s

       legal conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind. Ct.

       App. 2005).


[11]   The Morgans observe that, as the trial court repeatedly noted, “no evidence was

       submitted regarding a true, actual or legal description of the property or

       property lines in dispute…none.” Appellants’ Brief at 4. They argue, without

       citation to authority, that “[i]t makes reasonable, logical and unassailable sense

       that implicit in each of the adverse possession elements is that the party seeking

       to take the property via adverse possession must establish, by evidence, a proper

       legal description of the property in dispute.” Id. The Morgans also argue that

       an apparent incongruity exists in which, while the court ruled that it could not

       find for the Morgans by a preponderance of the evidence on their trespass claim

       due to the lack of a staked survey, it found for the Whites on their adverse

       possession and quiet title claim which is judged under a more stringent clear

       and convincing evidence standard.


[12]   The Whites initially suggest that, because the Morgans did not request a

       transcript, they have waived their issue on appeal, which they argue is

       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 8 of 14
       evidentiary in nature. The Whites argue that “[t]he Morgans do not appear to

       challenge the Trial Court’s findings or conclusions regarding the specific

       elements of adverse possession, except as they pertain to the identification and

       description of the disputed tract of land.” Appellees’ Brief at 8. They assert

       that in an action for quiet title it is sufficient if the claim includes “a description

       of the premises,” id. at 9 (quoting Ind. Code § 32-30-2-4(1)), in which “[a]

       description of real estate is sufficient when the sheriff, with the aid of a

       surveyor, can find the real estate and determine its boundaries.” Id. (quoting

       Gilbert v. Lusk, 106 N.E.2d 404, 410 (Ind. Ct. App. 1952) (en banc)). The

       Whites also note that the chronological case summary reflects that a surveyor

       did in fact establish the property line in accordance with the Order on

       December 18, 2015.


[13]   First, to the extent that the Whites argue that the Morgans have waived their

       issue on appeal, we observe that there is no dispute that neither side submitted

       evidence establishing the exact property line between Lot 32 and Lot 33. The

       Morgans’ argument is whether the court could find adverse possession where

       the exact borders were not entered into evidence.


[14]   At common law, the “elements of adverse possession required the claimant to

       prove the possession was (1) actual; (2) visible; (3) open and notorious; (4)

       exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for a

       statutory period of time.” Altevogt v. Brand, 963 N.E.2d 1146, 1151 (Ind. Ct.

       App. 2012) (quoting Roberts v. Feitz, 933 N.E.2d 466, 478 (Ind. Ct. App. 2010)

       (citing Fraley v. Minger, 829 N.E.2d 476, 485 (Ind. 2005))). In Fraley, however,

       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016       Page 9 of 14
the Indiana Supreme Court rephrased the elements of adverse possession,

stating that “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.” Id. (citing Fraley, 829 N.E.2d at 486).

These elements were defined in Fraley 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 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 1151-1152 (quoting Fraley, 829 N.E.2d at 486).2 These elements must be

satisfied for the statutory period of ten years. Id. at 1152 (citing Hoose v. Doody,




2
    As observed by this court in Altevogt:


Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016     Page 10 of 14
       886 N.E.2d 83, 92 (Ind. Ct. App. 2008) (citing Ind. Code § 34-11-2-11), trans.

       denied). “And they must be established by clear and convincing evidence.” Id.

       (citing Fraley, 829 N.E.2d at 483). The failure to establish any one element of

       an adverse possession claim defeats the claim. Id. (citing Daisy Farm Ltd. P’ship

       v. Morrolf, 915 N.E.2d 480, 487 (Ind. Ct. App. 2009)). Additionally, the

       claimant must have a reasonable and good faith belief that they and their

       predecessors in interest have paid all taxes due on the disputed real estate in

       accordance with Ind. Code § 32-21-7-1. See Celebration Worship Ctr., Inc. v.

       Tucker, 35 N.E.3d 251, 255 (Ind. 2015) (noting that “the homeowners in the

       present case argue that they and their predecessor have paid all taxes they

       reasonably believed in good faith to be due on the disputed real estate” which

       “substantially complie[d] with the statutory tax payment requirement”).


[15]   The court’s Order considered the Whites’ claim for adverse possession “on the

       assumption that the true property line is not the fence line, and that an

       unknown quantity of property is subject to claim under adverse possession.”

       Appellants’ Appendix at 35. The crux of the Morgans’ position is that it was




             The Fraley court identified the elements of adverse possession to reflect a “simplified
             articulation” of the “essence of the common law doctrine.” 829 N.E.2d at 486. But we have
             since recognized that this “‘reformulation does not appear to affect the vitality of prior case
             law.’” Garriott v. Peters, 878 N.E.2d 431, 438 n.6 (Ind. Ct. App. 2007), trans. denied (quoting
             Chickamauga Props., Inc. v. Barnard, 853 N.E.2d 148, 153 n.11 (Ind. Ct. App. 2006)[, reh’g
             denied]).
       963 N.E.2d at 1152 n.9.

       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016                         Page 11 of 14
       clearly erroneous for the court to render its ruling under such an assumption.

       We disagree.


[16]   For the purposes of the Whites’ Counterclaim, evidence was presented

       demonstrating that ownership of a certain strip of land between Lot 32 and Lot

       33 was contested. The Whites claimed ownership of property extending to the

       chain link fence line separating the parcels, while the Morgans asserted that

       they owned property a few feet south of this fence line. The court was able to

       apply the factors articulated in Fraley to evaluate the Whites’ adverse possession

       claim and conclude that the Whites satisfied each of the elements regarding

       property up to the fence line. Indeed, the Morgans do not dispute the court’s

       findings of fact and conclusions regarding each of these elements. The Morgans

       suggest that, without evidence of the true property line, “it is impossible to

       determine if the fence actually separates the properties or is on one property or

       the other.” Appellants’ Brief at 4. However, recognizing that the Whites

       satisfied the elements for adverse possession, there are only two possibilities for

       who owns the strip of property in question: either the Whites own some or all

       of the disputed property legally or they own it pursuant to the doctrine of

       adverse possession.


[17]   Whereas a claim for trespass requires establishing that the plaintiff owns the

       land in question, see Reed v. Reid, 980 N.E.2d 277, 295 (Ind. 2012) (“To make

       out a cause of action for trespass . . . the [plaintiff] must prove that it owns the

       land in question and that the [defendants’] entry upon it was unauthorized.”

       (quoting Calumet Nat’l Bank. Tr. v. Am. Tel. & Telegraph Co., 682 N.E.2d 785, 788

       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 12 of 14
(Ind. 1997) (citing State ex rel. McPherson v. Beckner, 132 Ind. 371, 31 N.E. 950,

951 (1892)))), causes of action for adverse possession are grounded not in the

holding of legal title to land, but rather require evidence regarding the use and

treatment of a parcel of land in a manner satisfying the doctrine’s elements of

control, intent, notice, and duration. The Morgans do not dispute that the

Whites satisfied these elements, as well as the statutory tax payment

requirement of Ind. Code § 32-21-7-1, at trial. To the extent that an action for

quiet title requires that the complaint contain “a description of the premises,”

Ind. Code § 32-30-2-4(1), such “is sufficient when the sheriff, with the aid of a

surveyor, can find the real estate and determine its boundaries.” Gilbert, 123

Ind. App. at 178, 106 N.E.2d at 410. We agree with the trial court that the

location of the existing chain link fence line is sufficient to demarcate the

property line between Lot 32 and Lot 33. See Brown v. Anderson, 90 Ind. 93, 95-

96 (1883) (noting that the description of the land was sufficient in which “[t]he

place of beginning of the strip of ground in question is at a point fifteen rods

and twenty links north of the south line of [section 19, township 2, range 3 west

in Switzerland County] and at the center of a fence running north and south on

the line between the lands of the appellee and the appellant, which fence had

stood as such line for forty years”); cf. Taflinger Farm v. Uhl, 815 N.E.2d 1015,

1017-1019 (Ind. Ct. App. 2004) (noting that the evidence of the disputed

property boundary consisted of testimony at trial describing it “as a ‘kind of

rough old farm’ with a fence,” in which it was not apparent that the fence line

was the asserted boundary line, was “inadequate to provide ‘sufficient means to

identify a definite and specific tract’”) (citing Gilbert, 123 Ind. App. at 178, 106
Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 13 of 14
       N.E.2d at 410). We cannot say that the court’s judgment in its Order is clearly

       erroneous.


                                                     Conclusion

[18]   For the foregoing reasons, we affirm the court’s Order.


[19]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 41A05-1512-PL-2267 | June 28, 2016   Page 14 of 14
