MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           May 20 2016, 9:48 am

regarded as precedent or cited before any                            CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                 ATTORNEY FOR APPELLEES
George Sistevaris                                       Stephen L. Fink
Fort Wayne, Indiana                                     Barnes & Thornburg, LLP
                                                        Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James H. Calkins and Walnut                             May 20, 2016
Hills Development, LLC,                                 Court of Appeals Case No.
Appellants-Defendants,                                  02A03-1511-CT-1849
                                                        Appeal from the Allen Superior
        v.                                              Court
                                                        The Honorable Stanley A. Levine,
James Leto and Colony Bay                               Judge
Apartments, LLC,                                        Trial Court Cause No.
Appellees-Plaintiffs.                                   02D03-1206-CT-283 & 02D01-
                                                        1310-CT-475



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016      Page 1 of 11
                                   STATEMENT OF THE CASE

[1]   Appellants-Defendants, James H. Calkins (Calkins) and Walnut Hills

      Development, LLC (Walnut Hills) (collectively, Appellants), appeal the trial

      court’s summary judgment in favor of Appellees-Plaintiffs, James Leto (Leto)

      and Colony Bay Apartments, LLC (Colony Bay Apartments), holding that the

      Encroachment Agreement is valid.


[2]   We affirm.


                                                   ISSUES

[3]   Walnut Hills raises two issues on appeal, which we restate as follows:


          (1) Whether the appurtenant easement granted pursuant to the

              Encroachment Agreement includes the right to maintain the light poles;

              and

          (2) Whether the appurtenant easement was extinguished by the doctrine of

              merger.


                           FACTS AND PROCEDURAL HISTORY

[4]   Colony Bay Apartments is an Indiana limited liability company owned by Leto,

      which represents a multifamily apartment complex in Fort Wayne, Indiana.

      Walnut Hills owns a parcel of land immediately north of the Colony Bay

      Apartments’ complex. On May 14, 1987, Colony Bay, an Ohio general

      partnership unrelated to Colony Bay Apartments, owned the Colony Bay

      Apartments and entered into an Encroachment Agreement with Sanford Simon

      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 2 of 11
(Simon), the trustee of a trust which then owned Walnut Hills. The

Encroachment Agreement provides:

        WHEREAS, Colony Bay has constructed a multi-family
        apartment complex on Colony Bay Apartment Parcels and
        through error and mistake a portion of the parking area and
        tennis court encroach over and upon a portion of the Trustee’s
        Parcels and Colony Bay’s Adjacent Parcels as shown on the
        Survey; and


        WHEREAS, Colony Bay desires to obtain from Trustee the right
        to use and maintain said encroachments as hereinafter provided;


        ...


        2. Each party hereto, jointly and severally, consents to and
        expressly agrees to permit and to remain the Encroachments by
        Colony Bay onto the Trustee’s Parcels and Colony Bay’s
        adjacent Parcels as shown on the Survey for the purpose of
        providing parking, driveway access and a tennis court which
        encroach upon Trustee’s parcels, and on Colony Bay’s Adjacent
        Parcels, and for the right to maintain, repair and replace the
        parking areas, driveways and tennis court which comprise the
        Encroachments[.]


        3. This Agreement is a perpetual easement agreement and shall
        run with the land for the benefit of the real property shown on
        the Survey and with the respective parcels into which the same is
        now or may hereinafter be divided or set apart by grant,
        mortgage, subdivision or otherwise[.]


(Appellant’s App. pp. 66-67). The Survey attached and incorporated into the

Encroachment Agreement depicts twenty-two parking spaces and four light

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 3 of 11
      poles with electrical lines located just north of the Colony Bay Apartments’

      north property line.


[5]   On August 21, 2012, Colony Bay Apartments filed its Complaint against

      Calkins asserting, as one of its allegations, criminal trespass because Calkins’

      placement of boulders on the parking spaces located within the encroachment

      parcel interfered with Colony Bay Apartments’ possession and use of the

      encroachment area, and requesting an injunction. On October 29, 2013, under

      a separate cause, Walnut Hills filed a Complaint against Colony Bay

      Apartments and Leto, requesting a declaratory judgment with respect to the

      validity of the Encroachment Agreement. Both causes were consolidated on

      August 18, 2014. On September 4, 2014, Colony Bay Apartments and Leto

      filed a motion for summary judgment against Appellants, seeking a declaration

      that the Encroachment Agreement is valid and granted an “exclusive right to

      park motor vehicles in the area depicted in the Encroachment Agreement and

      the right to maintain the utility poles and lighting depicted in the Encroachment

      Agreement.” (Appellants’ App. p. 93). Appellants filed a memorandum in

      opposition, claiming that the Encroachment Agreement was extinguished by

      merger. On July 20, 2015, the trial court issued its summary judgment, finding

      as a matter of law, that there is no genuine issue of material fact that the

      Encroachment Agreement is valid. The trial court declared that

              1) The Agreement creates an easement appurtenant in favor of
              the owner of Colony Bay Apartments; 2) the Agreement grants to
              the owners of Colony Bay Apartments the right to park motor
              vehicles in the area depicted in the Agreement and the right to

      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 4 of 11
              maintain the utility poles and lighting depicted in the Agreement;
              3) Calkins may not interfere with the use of the parking area
              depicted in the Agreement by the tenants of the owner of Colony
              Bay [Apartments].


      (Appellants’ App. p. 20).


[6]   Appellants now appeal. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION


                                            I. Standard of Review


[7]   Summary judgment is appropriate only when there are no genuine issues of

      material fact and the moving party is entitled to a judgment as a matter of law.

      Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

      outcome of the case, and an issue is genuine if a trier of fact is required to

      resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

      support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

      761 (Ind. 2009).


[8]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

      shoes of the trial court, applying the same standards in deciding whether to

      affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

      891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

      must determine whether there is a genuine issue of material fact and whether

      the trial court has correctly applied the law. Id. at 607-08. In doing so, we

      consider all of the designated evidence in the light most favorable to the non-

      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 5 of 11
       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


[9]    We observe that in the present case, the trial court entered elaborate findings of

       fact and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight unto the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                         II. Encroachment Agreement


[10]   Appellants contend the trial court erred in finding that the Encroachment

       Agreement, which established an appurtenant easement, included a right to

       maintain the light poles on the servient estate. An appurtenant easement is an

       easement which “passes with the dominant tenement by conveyance or

       inheritance.” Larry Mayes Sales, Inc., v. HSI, LLC, 744 N.E.2d 970, 973 (Ind. Ct.

       App. 2001). “An appurtenant easement infers in the land, concerns the

       premises, and is essentially necessary to its enjoyment.” Consolidated Coal Co. v.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 6 of 11
       Mutchman, 565 N.E.2d 1074, 1083 (Ind. Ct. App. 1990), reh’g denied. “[I]n

       construing an alleged creation of an easement through a grant or reservation, no

       particular words are necessary; any words which clearly show the intention to

       give an easement are sufficient.” Larry Mayes Sales, Inc., 744 N.E.2d at 973

       (citing Tanton v. Grochow, 707 N.E.2d 1010, 1013 (Ind. Ct. App. 1999)).

       However, in an instrument creating an express easement, the dominant and

       servient tenement should be described with reasonable certainty. Oakes v.

       Hattabaugh, 631 N.E.2d 949, 951 (Ind. Ct. App. 1994), reh’g denied, trans. denied.

       Nevertheless, an easement may be valid if the document adequately describes

       the dominant and servient estates even though it does not specifically use the

       terms “dominant estate” and “servient estate” in the document. Tanton, 707

       N.E.2d at 1013.


[11]   The Encroachment Agreement clearly describes—and the parties do not

       contest—an appurtenant easement in favor of Colony Bay Apartments, with the

       servient estate being certain areas of Walnut Hills. It designates the encroached

       upon area and included rights to maintenance, repair, and replace. The

       Agreement incorporates a Survey pictorially depicting the dominant and

       servient estates and references the owner of the servient parcel by name.


[12]   Appellants’ main argument focuses on the maintenance of the light poles

       located on the servient estate. Specifically, they allege that the appurtenant

       easement is limited to the parking lot only and does not grant Colony Bay

       Apartments the right to maintain the four light poles located on the parking lot.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 7 of 11
[13]   It is well established that easements are limited to the purpose for which they

       are granted. McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. Ct. App. 2010), reh’g

       denied, trans. denied. The owner of the dominant estate possesses all rights

       necessarily incident to the enjoyment of the easement. Panhandle E. Pipe Line

       Co. v. Tishner, 699 N.E.2d 731, 739 (Ind. Ct. App. 1998). The dominant estate

       holder may make repairs, improvements, or alterations that are reasonably

       necessary to make the grant of the easement effectual. Id. “All rights

       necessarily incident to the enjoyment of the easement are possessed by the

       owner of the dominant estate, and it is the duty of the servient owner to permit

       the dominant owner to enjoy his easement without interference.” Id. The

       servient owner “may not use his land as to obstruct the easement or interfere

       with the enjoyment thereof by the owner of the dominant estate.” Id.

       Moreover, the owner of the dominant estate cannot subject the servient estate

       to extra burdens, any more than the holder of the servient estate can materially

       impair or unreasonably interfere with the use of the easement. Klotz v. Horn,

       558 N.E.2d 1096, 1100 (Ind. 1990).


[14]   Not only did the Encroachment Agreement specifically confer “the right to

       maintain, repair and replace the parking areas[,]” the Agreement also pictorially

       indicated on the Survey, attached to the Agreement, that the parking areas

       included the four light poles. (Appellants’ App. p. 77) 1. Because we conclude




       1
        In their reply brief, Appellants assert that Colony Bay Apartments is relying on a later survey to support its
       argument that the survey references the light poles. We agree that the survey conducted in 2004 is more
       detailed than the original Survey attached to the Encroachment Agreement; nevertheless, the original Survey

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016                Page 8 of 11
       that the Encroachment Agreement was decisive of its inclusion of the light

       poles on the Survey, the enjoyment of the easement necessarily comes with the

       right to maintain the lights. See Panhandle E. Pipe Line Co., 699 N.E.2d at 739.

       Accordingly, Appellants cannot interfere with Colony Bay Apartments’

       easement rights.


                                                      III. Merger


[15]   Next, Appellants maintain that the Encroachment Agreement was extinguished

       through the doctrine of merger. Specifically, Appellants argue that there is

       evidence that Siara Management Ltd. owned both the servient and dominant

       estates in 2003 and points to the filing of two small claims court actions wherein

       Siara Management Ltd. is listed as the plaintiff. Therefore, Appellants

       conclude the easement ceased to exist because the ownership of both parcels

       was merged in hands of the same owner.


[16]   An appurtenant easement “may be extinguished by release from the owner of

       the dominant to the owner of the servient estate, and by merger of the two

       estates under the same title in the same person.” Kammerling v. Grover, 36 N.E.

       922, 923 (Ind. Ct. App. 1894). Colony Bay Apartments offered the trial court

       the Affidavit of Daniel J. Holden, the Commercial Manager/Attorney at

       Fidelity National Title Company (Holden). Holden performed a search of the




       also depicts and makes an annotation to four “pole w/ light (typical)” and the “overhead electrical service
       line.” (See Appellants’ App p. 77 vs. Appellants’ App. pp. 175-79).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016               Page 9 of 11
       Allen County Recorder’s office to determine the chain of title of the two parcels

       of real estate. Based upon his search, Holden concluded that “at no time from

       May 14, 1987 to February 13, 2015 were the Colony Bay [Apartments] parcel

       and the Walnut Hills [p]arcel owned by the same individual or entity.”

       (Appellants’ App. p. 254). Specifically, from March 11, 1971 till October 6,

       2003, Walnut Hills was owned by Simon. Thereafter, the property was owned

       by Siara Management Ltd. until November 18, 2009, when it was recorded as

       owned by TCO Assets Land, LLC. On March 11, 2011, Walnut Hills

       Development LLC acquired the parcel. On the other hand, Holden’s research

       revealed that Colony Bay, an Ohio general partnership, recorded its deed to the

       Colony Bay Apartments’ real estate on March 30, 1972. On November 1,

       2004, Leto acquired the parcel until May 2, 2007, when ownership was

       transferred to Colony Bay Apartments.


[17]   Moreover, even the evidence referred to by Appellants defeat their own

       argument of joint ownership. The small claims court filings submitted by

       Walnut Hills in support of its allegation include a copy of the lease agreement

       in which Siara Management, Ltd. is listed as the company managing the

       Colony Bay Apartments. At no point is Siara Management, Ltd. listed as the

       owner of the parcel.


[18]   Because “[r]ecord title is the highest evidence of ownership, [and] not easily

       defeated[,]” we conclude that there is no material issue of fact supporting

       Walnut Hills’ contention that both parcels were owned by the same entity at

       some point after the execution of the Encroachment Agreement. McCarty v.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-CT-1849 | May 20, 2016   Page 10 of 11
       Sheets, 423 N.E.2d 297, 300 (Ind. 1981). Therefore, the doctrine of merger does

       not apply and the appurtenant easement is not extinguished.


                                              CONCLUSION

[19]   Based on the foregoing, we conclude that there is no issue of material fact that

       the easement granted pursuant to the Encroachment Agreement included the

       right to maintain the light poles; and the easement is not extinguished by the

       doctrine of merger.


[20]   Affirmed.


[21]   Kirsch, J. and Pyle, J. concur




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