MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 13 2017, 6:06 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Donn H. Wray                                             Jon L. Orlosky
Bamberger, Foreman, Oswald & Hahn,                       Muncie, Indiana
LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John E. Moriarity and Mae E.                             June 13, 2017
Moriarity,                                               Court of Appeals Case No.
Appellants-Plaintiffs/Counterdefendants,                 18A04-1611-PL-2463
                                                         Appeal from the Delaware Circuit
        v.                                               Court
                                                         The Honorable Thomas A.
Richard Gillis,                                          Cannon, Jr., Judge
Appellee-Defendant/Counterclaimant                       Trial Court Cause No.
                                                         18C05-1408-PL-20



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017          Page 1 of 12
                                             Case Summary
[1]   John E. Moriarity and Mae E. Moriarity own property adjacent to property

      owned by Richard Gillis. The Moriaritys filed a claim against Gillis alleging

      that he had trespassed and cut down trees on their property. Gillis filed a

      counterclaim alleging that he had acquired that property by adverse possession.

      The trial court found in Gillis’s favor. On appeal, the Moriaritys contend that

      the trial court erred. Finding no error, we affirm.


                                 Facts and Procedural History
[2]   In 1987, Gillis and his then-wife Patronella bought three tracts of land (known

      as Tracts 1, 6, and 7) at an auction conducted by Schrader Real Estate

      Auctions. Gillis viewed the tracts before the auction and was told by Schrader

      representatives that the western boundary of Tract 7 was marked by a fence

      row. In 1989, as part of a divorce settlement, Patronella quitclaimed the

      contiguous Tracts 6 and 7 to Gillis, who quitclaimed the noncontiguous Tract 1

      to her. Tracts 6 and 7 were combined into one tract, and the deed for the

      property contains a legal description indicating that it is located in the

      northwest quarter of section 20 in Niles Township, Delaware County, and

      comprises approximately fifty-seven acres. Plaintiffs’ Ex. I. Starting in 1987,

      Gillis farmed Tracts 6 and 7 and made improvements to the drainage and soil.


[3]   In 2008, the Moriaritys purchased land directly west of Tract 7 through

      Schrader Real Estate. The deed indicates that the property is located in the

      northeast quarter of section 19 in Niles Township and comprises approximately


      Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 2 of 12
      eighty acres. Plaintiffs’ Ex. 2. Schrader representatives told the Moriaritys that

      the eastern boundary of their property was marked by the same fence row that

      marked the purported western boundary of Tract 7. For the next five years,

      both the Moriaritys and Gillis believed that the fence row established the

      boundary between their properties. In 2013, the Moriaritys discovered that the

      legal description of their property included 8.66 acres east of the fence row.


[4]   In 2014, the Moriaritys filed a notice of claim against Gillis in small claims

      court, and the case was transferred to the plenary docket. The Moriaritys

      alleged that Gillis had farmed over eight acres of their land for profit and had

      cut down trees on their property, and they sought damages for trespass, theft,

      and conversion. Gillis filed a counterclaim alleging that he had acquired the

      disputed property via adverse possession. After a bench trial, the court entered

      judgment against the Moriaritys and in favor of Gillis. The Moriaritys now

      appeal.


                                     Discussion and Decision
[5]   For many years, to establish title by adverse possession in Indiana, the claimant

      had to prove that the possession was actual, visible, open and notorious,

      exclusive, under claim of right, hostile, and continuous for the statutory period.

      See Fraley v. Minger, 829 N.E.2d 476, 485 (Ind. 2005) (collecting cases). In

      Fraley, our supreme court “[s]ynthesiz[ed] and rephrase[ed]” these concepts and

      held 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 the

      following:
      Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 3 of 12
              (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 486. “The requisite period of time for adverse possession is ten years.”

      Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015) (citing id.

      at 487 and Ind. Code § 34-11-2-11).


[6]   In addition to the foregoing elements of adverse possession, our legislature has

      imposed “the statutory requirement that ‘the adverse possessor pay[] all taxes

      and special assessments that the adverse possessor reasonably believes in good

      faith to be due on the real property during the period the adverse possessor

      claims to have adversely possessed the real property.’” Id. (quoting Ind. Code §

      32-21-7-1). The good-faith provision was added to the statute in 2006 in


      Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 4 of 12
      response to our supreme court’s use of similar language in Fraley. “Substantial

      compliance satisfies this statutory tax payment requirement ‘where the adverse

      claimant has a reasonable and good faith belief that the claimant is paying the

      taxes during the period of adverse possession.’” Id. (quoting Fraley, 829 N.E.2d

      at 493).


[7]   In its order, the trial court made the following findings and conclusions

      regarding Gillis’s adverse possession counterclaim:


               12. From late 1987 to 2013, a period of twenty-six (26) years,
               Richard Gillis farmed and retained exclusive control over Tracts
               6 and 7. He made improvements to the drainage and the soil on
               Tracts 6 and 7 and was open, obvious and notorious in his
               possession and farming of the land. Richard Gillis testified that
               he believed that he was paying the taxes on all the land he was
               told he was purchasing. For twenty-six (26) years, no one
               challenged Richard Gillis’s ownership or control of the property.
               It was clearly his intent to claim full ownership of the property
               and he did so.


               13. In 2008, [the Moriaritys] purchased through Schrader Real
               Estate approximately eighty (80) acres of land directly east [sic1]
               of Tract 7. Again, representatives of Schrader told the
               [Moriaritys] that the western [sic] end of their property was
               marked by the same fence that marked Richard Gillis’s eastern
               [sic] boundary. For the next five (5) years, both the [Moriaritys]



      1
        Several exhibits appear to show that the Moriaritys’ property is directly west of Tract 7. E.g., Plaintiff’s Exs.
      8, A, B, and G. We further note that Gillis’s appellee’s appendix contains copies of exhibits, which is
      prohibited by the appellate rules. See Ind. Appellate Rules 50(F) (stating that “parties should not reproduce
      any portion of the Transcript in the Appendix.”) and 2(K) (defining “Transcript” as “the transcript or
      transcripts of all or part of the proceedings in the trial court … that any party has designated for inclusion in
      the Record on Appeal and any exhibits associated therewith.”) (emphasis added).

      Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017                  Page 5 of 12
        and Gillis believed that the fence line established their boundary
        lines. During this time, each continued to pay taxes on the
        properties they believed were divided by the fence row.


        14. At some point in 2013, the [Moriaritys] discovered that the
        legal description to their eighty (80) acres included 8.66 acres that
        was west [sic] of the fence line. Combined, the parties’ roughly
        137 acres of land had a six percent (6%) dispute.


        15. That no evidence was presented to rebut Richard Gillis’s
        testimony.


        16. That the Court finds that Richard Gillis has established by
        clear and convincing evidence all of the elements to establish title
        through adverse possession of the 8.66 acres in dispute in this
        case.


        17. The Court further finds that based on the unique
        circumstances and the facts of this case that Richard Gillis, in
        good faith, had a reasonable belief that he was paying the taxes
        on the disputed acreage herein.


        18. That in fact, Richard Gillis established that his fee simple
        title to the disputed parcel was established by adverse possession
        prior to the [Moriaritys’] purchase of the adjacent property.




Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 6 of 12
               19. That [Moriaritys] have failed to prove their claim for
               damages herein based on either their claim for trespass [or] their
               claim for damages to trees.[2]


               20. That Richard Gillis is entitled to have the title of the 8.66
               acres (the disputed acreage) quieted in his name.


      Appealed Order at 4-5.


[8]   The Moriaritys contend that the trial court erred in entering judgment in favor

      of Gillis. Where, as here, a trial court enters its findings and conclusions sua

      sponte, “the findings control only with respect to the issues they cover, and a

      general judgment standard applies to issues on which there are no findings.”

      Fischer v. Fischer, 68 N.E.3d 603, 608 (Ind. Ct. App. 2017), trans. denied.


               We will affirm a general judgment if it can be sustained on any
               legal theory supported by the evidence. We review the trial
               court’s findings and conclusions using a clearly erroneous
               standard. In conducting our review, we first determine whether
               the evidence supports the findings; then we determine whether
               the findings support the judgment. A finding is clearly erroneous
               when the record contains no facts to support the finding, either
               directly or by inference, and a judgment is clearly erroneous if it
               applies the wrong legal standard to properly found facts.


      Id. (citations omitted). “In determining the validity of the findings or judgment,

      we consider only the evidence favorable to the judgment and all reasonable


      2
        The Moriaritys do not appeal the trial court’s judgment against their claim for damages to trees, but state
      that if we “reverse the finding of adverse possession in favor of Gillis, further proceedings upon remand will
      include [their] claim for [trespass] damages.” Appellants’ Br. at 9. Because we affirm that finding, remand is
      unnecessary.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017              Page 7 of 12
       inferences to be drawn therefrom, and we will not reweigh the evidence or

       assess the credibility of witnesses.” Bonewitz v. Parker, 912 N.E.2d 378, 381

       (Ind. Ct. App. 2009), trans. denied.


[9]    The Moriaritys raise three principal arguments on appeal: (1) the trial court

       clearly erred in concluding that Gillis reasonably believed in good faith that he

       paid taxes on the disputed property; (2) the trial court clearly erred in

       concluding that Gillis carried his burden with respect to the elements of intent

       and notice; and (3) Gillis’s adverse possession counterclaim is precluded by the

       doctrine of merger by deed.


         Section 1 – The trial court did not clearly err in concluding
       that Gillis reasonably believed in good faith that he paid taxes
                          on the disputed property.
[10]   The Moriaritys argue that the trial court clearly erred in concluding that Gillis

       had a reasonable good-faith belief that he paid taxes on the disputed property,

       for two reasons: (1) Gillis could not reasonably have believed that he was

       paying taxes on an additional 8.66 acres; and (2) the disputed property lies

       outside the description on Gillis’s tax duplicates, which bear the notation “PT

       NW QTR.” Plaintiffs’ Ex. S. The Moriaritys rely primarily on Dewart v. Haab,

       849 N.E.2d 693 (Ind. Ct. App. 2006), in which the trial court awarded a 5.64-

       acre tract belonging to the Dewarts to Haab and Hapner, who owned an

       adjacent twenty-three-acre tract, as adverse possessors. On appeal, another

       panel of this Court stated,



       Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 8 of 12
                Unlike Echterling [v. Kalvaitis, 235 Ind. 141, 126 N.E.2d 573
                (1955)] and Fraley, this is not a narrow boundary strip within the
                margin of ambiguity in the tax records, but rather a several acre
                tract of land on which only the Dewarts officially paid taxes. As
                illustrated by the Echterling Court’s example, this instant case is a
                far cry from a building foundation encroaching on approximately
                a foot of a contiguous plot of land.[3] Furthermore, here, we are
                not confronted with a case of mistake due to imprecision in a tax
                duplicate or other assessment document. Kosciusko County’s
                records for the Tract clearly denote the set 5.64 acres, as bounded
                by Haab’s, Hapner’s, and the [Dewarts’] real property, with the
                Dewarts’ name and address as the owners for the purpose of tax
                payment.


       Id. at 697. The panel ultimately concluded that “a reasonable trier of fact could

       not correctly conclude, let alone by clear and convincing evidence, that Haab

       and Hapner complied with the adverse possession tax statute,” and therefore it

       reversed the trial court’s judgment. Id.


[11]   To the extent Dewart suggests that it would never be reasonable for an adverse

       claimant to believe in good faith that he has paid taxes on anything more than a

       narrow strip of land, we respectfully believe that it sweeps too broadly.

       Plaintiffs’ Exhibit 8, a graphic representation of property deeds in the quarter



       3
         See Echterling, 235 Ind. at 147, 126 N.E.2d at 575-76 (“It would seem to us that … where continuous, open,
       and notorious adverse possession of real estate has been established for [the statutory period] to a contiguous
       and adjoining strip of land such as that here in question [i.e., ten feet wide], and where taxes have been paid
       according to the tax duplicate, although said duplicate did not expressly include that strip, adverse possession
       is established to that strip even though the taxes were not paid by the adverse claimant. An example might
       be where one has record title to Lot No. 1 and has erected a building on that lot, which, twenty years later, is
       found by some surveyor to be one foot over on an adjoining lot, No. 2—the fact that the owner of Lot No. 1
       was assessed for improvements (the building) and real estate (Lot No. 1) would be sufficient to comply with
       the statute as to payment of taxes.”). In Fraley, the disputed tract comprised approximately 2.5 acres, and the
       adverse claimants knew that the tract was not described in their deed. 829 N.E.2d at 480.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017               Page 9 of 12
       sections at issue, appears to show that the disputed property in this case is over

       200 feet wide (east-west) by 1266.50 feet long (north-south).4 Gillis observes

       that


                  there is absolutely no landmark or physical distinction in the land
                  to indicate where one quarter section ends and one begins. [5] It is
                  one continuous parcel divided only by a farm fence that has
                  defined the boundaries from before 1987. Since both parties were
                  told, albeit 21 years apart, that the farm fence defined the
                  boundaries for both parties, it is perfectly understandable that
                  both parties believed that they were paying taxes on their parcels
                  as defined by the farm fence.


       Appellee’s Br. at 14. We agree and therefore hold that, under these

       circumstances, the trial court did not clearly err in concluding that Gillis

       reasonably believed in good faith that he paid taxes on the disputed property.


            Section 2 – The trial court did not clearly err in concluding
           that Gillis carried his burden with respect to the elements of
                                  intent and notice.
[12]   Next, the Moriaritys point to documents that Gillis drafted regarding the

       benefits that he had conferred on them by farming and improving the disputed

       property, and they argue that the documents are inconsistent with an intent to

       claim full ownership of the property and to give actual or constructive notice of


       4
           The document’s small typeface makes the numerals difficult to read.
       5
         Plaintiffs’ Exhibit B, an aerial photograph of the Moriaritys’ property and the disputed tract, supports this
       statement. The eastern portion of the Moriaritys’ property appears to be heavily wooded, and the disputed
       tract (which lies west of the quarter section boundary) and the western portion of Gillis’s property appear to
       be a block of cultivated farmland.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017               Page 10 of 12
       that intent.6 This evidence conflicts with Gillis’s testimony that he believed that

       he owned the disputed property and openly farmed it as his own for twenty-six

       years. It was the trial court’s prerogative to interpret, weigh, and credit the

       evidence and resolve that conflict. We may not second-guess that

       determination on appeal.


[13]   On the issue of notice, the Moriaritys further observe that Gillis admitted to

       farming only “6.4 acres of a total claimed 8.66 acres[,]” and they assert that this

       is a failure of proof “at least as to the 2.26 acres upon which [Gillis] did

       nothing.” Appellants’ Br. at 28, 29. The 6.4-acre figure was based on Gillis’s

       own calculation, and he admitted that he was not “a licensed surveyor ….” Tr.

       at 18. Moreover, his counsel pointed to testimony regarding trees on the fence

       row and elsewhere on the disputed property, and he argued that “[y]ou can’t

       farm every inch of the ground that you believe you have in a situation like this.”

       Id. at 98. We must decline the Moriaritys’ invitation to reweigh the evidence in

       their favor here as well. Therefore, we hold that the trial court did not clearly

       err in concluding that Gillis carried his burden with respect to the elements of

       intent and notice.


           Section 3 – The doctrine of merger by deed is inapplicable.
[14]   Finally, the Moriaritys argue that because Gillis’s deed is unambiguous

       regarding the boundaries of his property, he could not rely on the Schrader



       6
        The Moriaritys also refer to Gillis’s deposition, which was not included in the exhibits volume filed on
       appeal. See Ex. Index at 6. Its availability is immaterial to our analysis.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017             Page 11 of 12
       representatives’ description of its western boundary, and therefore his adverse

       possession claim is precluded by the doctrine of merger by deed. See

       Appellants’ Br. at 30 (“‘In the absence of fraud or mistake, all prior or

       contemporaneous negotiations or executory agreements, written or oral,

       leading up to the execution of a deed are merged therein by the grantee’s

       acceptance of the conveyance in performance thereof.’”) (quoting Warner v.

       Estate of Allen, 776 N.E.2d 422, 427 (Ind. Ct. App. 2002), trans. denied (2003))

       (alteration and emphasis in brief omitted). The Moriaritys cite no cases in

       which the doctrine has been applied to a deed holder and a third party in an

       adverse possession case, and we are aware of none. Therefore, we are inclined

       to find the doctrine of merger by deed inapplicable and affirm the trial court.


[15]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1611-PL-2463 | June 13, 2017   Page 12 of 12
