MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Feb 03 2017, 9:27 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                     CLERK
                                                                   Indiana Supreme Court
purpose of establishing the defense of res judicata,                  Court of Appeals
                                                                        and Tax Court
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                ATTORNEY FOR APPELLEES
Krista B. Lockyear                                     John G. Wetherill
Joseph H. Langerak, IV                                 Wetherill Law Office
Jackson Kelly PLLC                                     Rockport, Indiana
Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Margaret J. Wilkinson,                                     February 3, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           74A05-1608-PL-1994

        v.                                                 Appeal from the Spencer Circuit
                                                           Court

Ivan H. Kuehn and Micki L.                                 The Honorable Jon A. Dartt, Judge
Kuehn,                                                     Trial Court Cause No. 74C01-1605-
                                                           PL-169
Appellees-Plaintiffs.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017    Page 1 of 11
                                          Case Summary
[1]   In 1998, Appellant-Defendant Margaret Wilkinson sold a portion of her land to

      Appellee-Plaintiffs Ivan and Micki Kuehn (“the Kuehns”). The conveyance

      created a scenic easement (“the Easement”), a strip of land in the Kuehns’

      parcel running along the property line with Wilkinson’s parcel, upon which

      they were restricted from building. In 2007, the Kuehns indicated to Wilkinson

      that they planned to build a house (“the House”), and informed her that its

      intended location did not encroach on the Easement. As it happens, it did.

      Wilkinson, however, never objected to the construction or had a survey

      performed.


[2]   In April of 2016, when the Kuehns attempted to sell the House, it was

      discovered that part of the House was, in fact, on the Easement. The Kuehns

      petitioned the trial court for partial relief from the Easement. Wilkinson was

      granted a continuance to retain counsel and a second request for a continuance,

      made the day of the evidentiary hearing, was denied. Following the hearing,

      the trial court granted the Kuehns’ petition for partial relief from the Easement

      and quieted title to a portion of the Easement in the Kuehns. Wilkinson

      contends that the trial court erred in releasing a portion of the Easement,

      abused its discretion in denying her second continuance request, and abused its

      discretion in consolidating the hearing on the Kuehns’ emergency petition with

      a trial on the merits. Because we disagree, we affirm the judgment of the trial

      court.



      Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 2 of 11
                            Facts and Procedural History
[3]   In August of 1998, when Wilkinson conveyed a portion of her Spencer County

      property to the Kuehns, the Easement was created, a 150-foot-wide strip of the

      Kuehns’ parcel where it abuts Wilkinson’s. The Easement restricts the Kuehns

      from constructing any “residences, buildings or improvements” on it.

      Appellant’s App. Vol. II p. 13. In approximately 2007, the Kuehns built the

      House. Before beginning construction, the Kuehns showed Wilkinson flags

      marking the future location of the House and assured her that it would be

      located outside of the Easement. Although Wilkinson commented at the time,

      apparently to the Kuehns, that she would have preferred that the House be built

      further from the property line, she did not otherwise object, then or later, or

      have a survey performed.


[4]   In April of 2016, the Kuehns agreed to sell their house to Joshua and Brittany

      Pickerill. A survey performed by the Pickerills revealed that the House

      encroached onto the Easement approximately eighteen feet in one place and

      approximately seven feet in another. On May 11, 2016, the Kuehns petitioned

      the trial court for emergency partial relief from the Easement and requested an

      emergency hearing. The trial court set a hearing for May 23, 2016. On May

      20, 2016, Wilkinson called the court and requested a continuance to retain

      counsel, which the trial court granted, resetting the hearing for June 8, 2016.


[5]   On the day of the hearing, Wilkinson requested a second continuance, which

      request the trial court denied. On June 22, 2016, the parties submitted post-


      Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 3 of 11
hearing briefs. On August 4, 2016, the trial court issued an order providing, in

part, as follows:


        1.     The Plaintiffs, Ivan H. Kuehn and Micki L. Kuehn, filed
        their Petition For Emergency Partial Relief From Scenic
        Easement on May 11, 2016 which the Court construes as a
        declaratory judgment request to quiet title as to the claim
        Plaintiffs mistakenly encroached upon the scenic easement of
        Defendant by approximately seven (7) feet on the front of
        Plaintiffs’ house and eighteen (18) feet on the backside of
        Plaintiffs’ house.

        2.     Time is of the essence as Plaintiffs have entered into a
        purchase agreement with Joshua and Brittany Pickerill and the
        issue must be resolved immediately as it is holding up the
        completion of the real estate transaction at costs to everyone
        involved and the Pickerills have already moved into the property.

        3.    As a result, the Court set the trial in this cause on an
        expedited basis, first on May 23, 2016 and then upon Defendant
        Wilkinson’s request for continuance to June 8, 2016. Defendant
        obtained counsel who entered an appearance and requested
        another continuance after the close of Court on June 7, 2016 and
        who appeared on June 8, 2016 and requested the same at trial
        which the Court denied due to the exigency of the circumstances
        and one prior continuance already being given to Defendant
        Wilkinson.

        4.      The Court heard evidence and arguments on Plaintiffs’
        Petition and the Court allowed the parties to submit post-hearing
        briefs in support of their petitions.

        5.     The Court finds Defendant, Margaret Wilkinson has a
        scenic easement by deed since 1998 which was and has been
        encroached upon by Plaintiff’s since they built their home
        adjacent to her property in 2007.


Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 4 of 11
        6.     The Court finds the encroachment on her scenic easement
        is about seven (7) feet on the front of Plaintiffs’ residence and
        about eighteen (18) feet on the backside of Plaintiffs’ residence
        for a total encroachment of the scenic easement of about one-one
        hundredth [sic] of an acre.

        7.     The Court finds the Plaintiffs encroached upon the scenic
        easement unintentionally when they constructed their residence
        in 2007 and both Plaintiffs and Defendant admitted no one
        objected to the encroachment which appears to have been
        unknown to the parties until a recent survey was conducted when
        the property was sold to the new purchasers, the Pickerills.

        8.     There has been no objection relayed by Defendant to
        Plaintiffs for approximately nine (9) years since the residence was
        built but Defendant Wilkinson now claims the encroachment
        affects her use and enjoyment of her property.

        9.     Defendant Wilkinson testified she does not object to
        Plaintiffs selling the house to the Pickerills but that she objects to
        the house being on the easement. She claims she never told the
        Plaintiffs but she never liked the house being built so close to her
        property and even though her home is built in the middle of a
        wooded area, Defendant claims she can still see Plaintiffs’
        residence from her property when the leaves are off which the
        scenic easement was meant to protect against. The Plaintiffs
        claim they cannot see her residence from their house or their
        front yard.

        10. Defendant Wilkinson claims her use and enjoyment of her
        property is damaged by the partial encroachment of Plaintiffs’
        residence on her scenic easement.

        11. The Court now Finds based upon the evidence and the law
        at the trial of this cause, this is a relatively easy case to decide as
        the Court now ORDERS title should be quieted and a
        declaratory judgment should be entered making it clear that the
        Court is not going to Order the Plaintiffs’ residence (soon to be

Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 5 of 11
              the Pickerills’ residence) to be torn down in part or removed as a
              result of the encroachment under the unique circumstances of
              this case.

              12. Instead, the Court Orders there shall be a partial release of
              the scenic easement as to the relatively small area of the
              encroachment pursuant to the surveyor’s Plat of Survey listed in
              Plaintiffs’ Exhibit #4. The Court will sign off on an Order
              quieting title as to the small area of the encroachment and will
              Order it is exempt from the original scenic easement in this case
              which was entered in 1998. Plaintiffs’ counsel shall prepare at
              the expense of Plaintiffs said Quiet Title Order and any necessary
              accompanying paperwork or filing fees to effectuate this Order
              which should allow the emergency portion of this case to be
              resolved so the new purchasers, the Pickerills, can complete the
              purchase of the real estate to them with a small portion of the
              original scenic easement exempted and removed.

              13. However, Plaintiffs will still owe damages to Defendant
              Wilkinson for the encroachment and taking of the right protected
              by the easement which will need to be determined by this Court
              upon the evidence and the law. The parties’ counsel shall
              contact the Court and setup a damages hearing date and time so
              that matter may be fully heard and decided.

      Order pp. 1-4.

[6]   Wilkinson contends that the trial court’s decision extinguishing a portion of the

      Easement is contrary to law and unsupported by sufficient evidence, the trial

      court abused its discretion in denying her second motion for continuance, and

      the trial court abused its discretion in consolidating the emergency hearing with

      a full trial on the merits.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 6 of 11
[7]   The trial court entered findings of fact and conclusions of law pursuant to

      Indiana Trial Rule 52.


              When a court has made special findings of fact, an appellate
              court reviews sufficiency of the evidence using a two-step
              process. “First, it must determine whether the evidence supports
              the trial court’s findings of fact; second, it must determine
              whether those findings of fact support the trial court’s
              conclusions of law.” Estate of Reasor v. Putnam County, 635
              N.E.2d 153, 158 (Ind. 1994) (citation omitted). 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. (citation
              omitted). A judgment is clearly erroneous if it applies the wrong
              legal standard to properly found facts. State v. Van Cleave, 674
              N.E.2d 1293, 1296 (Ind. 1996), reh’g granted in part, 681 N.E.2d
              181 (Ind. 1997). 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. at 1295.

      Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). “On appellate review,

      however, a trial court judgment may be affirmed if sustainable on any basis in

      the record, even though not on a theory used by the trial court.” Benham v.

      State, 637 N.E.2d 133, 138 (Ind. 1994).


                   I. Partial Extinguishment of the Easement
[8]   All agree that the Kuehns built the House, in part, in the Easement. There is

      also no dispute that Wilkinson failed to object to the House, either before it was

      built or at any time afterwards. These two facts are sufficient to decide the

      issue. Although not specifically argued by the parties or cited as a basis for the

      Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 7 of 11
       judgment, the undisputed evidence supports the trial court’s judgment on the

       basis that Wilkinson acquiesced in the infringement of the Easement.


[9]    “Acquiescence *** ‘is a release or an abandonment of one’s rights if, having

       rights, he stands by and sees another dealing with his property in a manner

       inconsistent with such rights, and makes no objection while the act is in

       progress.’” Henning v. Neisz, 148 Ind. App. 576, 585, 268 N.E.2d 310, 316

       (1971) (quoting Bd. of Comm’rs of Cass Cty. v. Plotner, 149 Ind. 116, 121, 48 N.E.

       635, 637 (1897)). “Acquiescence is like permission to do the thing done, and

       equity would treat as unconscionable the denial of that to which one has

       assented or acquiesced.” Plotner, 149 Ind. at 121, 48 N.E. at 637.


[10]   Wilkinson made no objection to the House, either before or after its

       construction, despite being informed of the Kuehns’ plans beforehand.

       Wilkinson does not claim that she had insufficient time to commission a survey

       before construction began, and yet she did not do so. In summary, because

       Wilkinson witnessed the Kuehns using the Easement in a manner inconsistent

       with her rights and made no objection, it would be unconscionable to enjoin

       that use now. See Henning, 148 Ind. App. at 585, 268 N.E.2d at 316 (in case

       where appellee had easement for driveway over appellant’s land and moved

       driveway but appellant made no objection for over five years, concluding that

       appellant had acquiesced in new location of driveway). The trial court’s

       judgment may be affirmed on the basis of Wilkinson’s acquiescence to the

       construction of the House.



       Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 8 of 11
             II. Wilkinson’s Second Request for a Continuance
[11]   Wilkinson contends that the trial court abused its discretion denying her second

       motion for continuance, which was filed on the day of the hearing.

               Regarding our standard of review of a denial of a motion for
               continuance, this Court has explained, “[i]f good cause is shown
               for granting the motion, denial of a continuance will be deemed
               to be an abuse of discretion.” Evans v. Thomas, 976 N.E.2d 125,
               127 (Ind. Ct. App. 2012) (quoting Hess v. Hess, 679 N.E.2d 153,
               154 (Ind. Ct. App. 1997)), trans. denied 982 N.E.2d 298 (Ind.
               2013); see also Ind. Small Claims Rule 9(A) (stating “[e]ach party
               may be granted a continuance for good cause shown”). An
               abuse of discretion exists “when a decision is clearly against the
               logic and effect of the facts and circumstances before the court or
               where the record demonstrates prejudice to the defendant from a
               denial of the continuance.” Gingerich v. State, 979 N.E.2d 694,
               702 (Ind. Ct. App. 2012), trans. denied 984 N.E.2d 221 (Ind.
               2013).

       Destination Yachts, Inc. v. Fine, 22 N.E.3d 611, 616 (Ind. Ct. App. 2014). “We

       must also consider whether a delay would have prejudiced the opposing party

       to an extent sufficient to justify denial of the continuance.” Id. (citation

       omitted).


[12]   As mentioned, the trial court denied Wilkinson’s second request for a

       continuance, which was made on the day of the evidentiary hearing. Given the

       relatively straightforward nature of the legal question presented by this case and

       the circumstances surrounding it, Wilkinson has failed to show an abuse of

       discretion. Wilkinson conceded the facts necessary to establish acquiescence,

       and that, essentially, disposes of the entire case. We cannot imagine what

       Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 9 of 11
       advantage Wilkinson could have gained with more time. Moreover, the trial

       court found that the dispute was delaying the sale of the House to the Pickerills,

       causing all involved to incur additional costs. A further continuance would

       only have increased the inconvenience and cost to the Pickerills and Kuehns,

       not to mention Wilkinson herself. Wilkinson has failed to establish that the

       trial court abused its discretion in denying her second request for a continuance.


                 III. Consolidation of Emergency Hearing and
                              Trial on the Merits
[13]   Wilkinson contends that the trial court abused its discretion in consolidating the

       hearing on the Kuehns’ motion for emergency relief with a trial on the merits.

       The Indiana Supreme Court has stated the following with regard to “surprise

       consolidations”:

               Federal courts have further held that consolidation without
               notice is reversible error when the effect is to deprive a party of
               the right to present the case on the merits. See Eli Lilly & Co., Inc.
               v. Generix Drug Sales, Inc., 460 F.2d 1096, 1106-07 (5th Cir. 1972);
               Santiago v. Corporacion de Renovacion Urbana Y Vivienda de Puerto
               Rico, 453 F.2d 794, 797-98 (1st Cir. 1972). But the prevailing
               federal rule has long been that consolidation without notice is not
               reversible error absent a showing of prejudice. See Eli Lilly, 460
               F.2d at 1106 (“[S]urprise alone is not a sufficient basis for
               appellate reversal; appellant must also show that the procedures
               followed resulted in prejudice….”); see also Holly Sugar Corp. v.
               Goshen County Coop. Beet Growers Ass’n, 725 F.2d 564, 568 (10th
               Cir. 1984); Socialist Workers Party v. Ill. State Bd. of Elections, 566
               F.2d 586, 587 (7th Cir. 1977).

       Roberts v. Cmty. Hosps. of Ind., Inc., 897 N.E.2d 458, 465 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 10 of 11
               We therefore stress that any determination of prejudice following
               a surprise consolidation must consider (1) the scope of the issues
               in the case, (2) the opportunity that the parties have had for
               discovery, (3) the degree to which continuance and discovery
               requests have been honored, (4) the extent to which the parties
               litigated the merits of the case at the preliminary injunction
               hearing, and/or (5) the realistic ability of the trial court to render
               judgment using the testimony and evidence elicited at the
               preliminary injunction hearing.

       Id. at 467.


[14]   Given the circumstances of this case, we conclude that Wilkinson has failed to

       establish prejudice and, therefore, an abuse of discretion. As mentioned, the

       case turns on only two facts: the Kuehns built on the Easement and Wilkinson

       acquiesced to the construction, the latter of which she admitted. In other

       words, the scope of the issue is not broad and can be resolved by facts not in

       dispute. It follows, then, that opportunities for further discovery were not

       needed, the degree to which requests for continuances or discovery were

       granted is largely immaterial, the sole issue in the case was fully litigated at the

       emergency hearing, and the trial court was able to render judgment disposing of

       the main issue based on evidence presented at that hearing. Even assuming,

       arguendo, that Wilkinson was surprised by the trial court’s consolidation, she

       has failed to establish prejudice. Wilkinson has failed to establish an abuse of

       discretion in this regard.


[15]   We affirm the judgment of the trial court.


       Vaidik, C.J., and Brown, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 74A05-1608-PL-1994 | February 3, 2017   Page 11 of 11
