MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jun 26 2017, 8:59 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




ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEES
Alex Beeman                                              Kurt V. Laker
Thomas M. Beeman                                         Doyle & Foutty, P.C.
Beeman Law                                               Indianapolis, Indiana
Anderson, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Betty J. Bynum, Timothy L.                               June 26, 2017
Bynum, and Juanita Maxwell,                              Court of Appeals Case No.
Appellants-Plaintiffs,                                   48A02-1608-PL-1921
                                                         Interlocutory Appeal from the
        v.                                               Madison Circuit Court
                                                         The Honorable Angela Warner
David Short, Veronica Short,                             Sims, Special Judge
and Robert Lockhart,                                     Trial Court Cause No.
Appellees-Defendants                                     48C01-1509-PL-113




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017      Page 1 of 8
                                             Case Summary
[1]   Betty J. Bynum, Timothy L. Bynum, and Juanita Maxwell (collectively

      “Appellants”) appeal an order granting summary judgment to David Short,

      Veronica Short, and Robert Lockhart (collectively “Appellees”), in which the

      trial court found as a matter of law that Appellees received a valid easement in

      a 2001 deed. Appellants argue that either the easement is invalid or the deed is

      ambiguous. We disagree and therefore affirm.


                                 Facts and Procedural History
[2]   The relevant facts are undisputed. Betty and her husband Herbert owned a

      twenty-acre tract. In 1979, via a warranty deed, they conveyed a five-acre

      parcel to their son John, as well as an easement for ingress and egress fifty feet

      wide (east-west) and 681.6 feet long (north-south) adjacent to the parcel’s

      eastern boundary and extending past its northern and southern boundaries. See

      Appellants’ App. at 90 (deed) (“Herbert Bynum and Betty Bynum, husband and

      wife … convey and warrant to John S. Bynum … the following REAL

      ESTATE in Madison County in the State of Indiana, To Wit: [legal description

      of five-acre parcel] AN EASEMENT FOR INGRESS AND EGRESS: [legal

      description of easement]”; id. at 94 (2001 survey of parcel, easement, and

      neighboring property). The deed describes both the parcel and the easement

      using metes and bounds. In 1995, John conveyed the parcel and the easement

      to his son Jason via a warranty deed that contains identical language describing

      the parcel and the easement. In 2001, Jason conveyed the parcel and the

      easement to the Shorts via a warranty deed that contains identical language

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017   Page 2 of 8
      describing the parcel and the easement. The Shorts leased a portion of the

      parcel to Lockhart.


[3]   In July 2015, Appellants filed a small claims complaint against Appellees for

      wrongful entry, trespass, and nuisance. The complaint alleged that Appellants

      were joint tenants with rights of survivorship in the “illegally conveyed

      easement[,]” that Appellees had attempted to use it “as an easement leading to

      [Appellees’] property, although they already have an ingress and egress to their

      property[,]” and that Appellees’ “use had now morphed into intermittent

      obstruction of [Appellants’] access.” Id. at 16. The case was transferred to the

      plenary docket. Appellants filed an amended complaint restating their claims

      and seeking to quiet title in the “disputed easement.” Id. at 33.


[4]   Appellees filed a motion for summary judgment as to the validity of what they

      characterized as an unambiguous and appurtenant easement. Appellants filed a

      response asserting that the easement was ambiguous and not appurtenant, i.e.,

      an easement in gross. After a hearing, the trial court issued an order finding

      that Appellees “are entitled as a matter of law to a declaration that they

      received an express, valid, appurtenant easement in the 2001 Deed[,]” but

      reserving the issue of whether Appellees had overburdened the easement for




      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017   Page 3 of 8
      additional factfinding. Appealed Order at 14. This interlocutory appeal

      ensued.1


                                      Discussion and Decision
[5]   “The purpose of summary judgment is to terminate litigation about which there

      can be no factual dispute and which can be determined as a matter of law.”

      Smith v. Butts, 66 N.E.3d 967, 970 (Ind. Ct. App. 2016).


              A party requesting summary judgment must affirmatively negate
              an opponent’s claim by demonstrating that the designated
              evidence raises no genuine issue of material fact and that the
              moving party is entitled to judgment as a matter of law. If the
              moving party succeeds in carrying its burden, the nonmoving
              party must come forward with evidence establishing the existence
              of a genuine issue of material fact in order to preclude summary
              judgment.


      Id. (citation omitted). Our standard of review is the same as the trial court’s:

      whether a genuine issue of material fact exists and whether the moving party is

      entitled to judgment as a matter of law. Id. We review all facts and reasonable

      inferences drawn from those facts in favor of the nonmoving party. Id. A trial

      court’s findings on summary judgment aid our review by giving insight into the

      rationale for its decision, but they are neither required nor binding, and they do

      not change our standard of review. Milbank Ins. Co. v. Ind. Ins. Co., 56 N.E.3d

      1222, 1229 n.6 (Ind. Ct. App. 2016). “Our review is de novo, and if the trial



      1
       Appellants appeal from the summary judgment order, as well as from an order dissolving an injunction that
      prohibited Appellees from using the easement. Appellants specifically address only the former, as do we.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017           Page 4 of 8
      court’s judgment can be sustained on any basis supported by the evidence, we

      will affirm.” Id. The party that lost in the trial court bears the burden of

      persuading us that the trial court erred. Morris v. Crain, 71 N.E.3d 871, 879

      (Ind. Ct. App. 2017).


[6]   Appellants make alternative arguments for reversal: (1) the easement is invalid

      because the deeds in Appellees’ chain of title do not identify the dominant

      estate with reasonable certainty;2 or (2) the deeds are ambiguous regarding

      whether the easement is appurtenant or in gross, and therefore a genuine issue

      of material fact remains on this issue.


            Section 1 – The deeds identify the dominant estate with
                             reasonable certainty.
[7]   “Although Indiana law prefers that an instrument creating an express easement

      describe the dominant and servient tenements with reasonable certainty, an

      easement may be valid even though it does not use the particular terms

      ‘dominant’ and ‘servient’ in referring to the relevant estates.” Kopetsky v. Crews,

      838 N.E.2d 1118, 1125 (Ind. Ct. App. 2005). “[I]f we can identify the

      dominant tenement with reasonable certainty based upon the language of the

      deed, we are not required to find a direct description of that tenement in the

      conveyance.” Id. at 1126 (emphasis omitted). The interpretation of a deed is a




      2
       “The land benefiting from an easement is called the dominant estate; the land burdened by an easement is
      called the servient estate.” BLACK’S LAW DICTIONARY (10th ed. 2014) (emphases omitted). Appellants
      generally assert that the deeds also “should have specifically set forth” the servient estates, but they make no
      specific argument in this regard. Appellants’ Br. at 16. Consequently, we do not address this assertion.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017                  Page 5 of 8
      pure question of law. Rennaker v. Gleason, 913 N.E.2d 723, 729 (Ind. Ct. App.

      2009).


[8]   Here, the trial court found that “[e]ach deed specifically grants a plot of land to

      the grantee, as well as an easement for ingress and egress to that property. This,

      by self-evident implication, makes the grantee the dominant tenant of whatever

      property the easement passes through.” Appealed Order at 6. The court also

      found that “it would not make sense to interpret the deeds as making the

      grantee ‘subject’ to the easement [i.e., a servient tenant], since it does not run

      through their real estate.” Id. at 7.3 We agree with this reasoning and find

      Appellants’ contrary argument unavailing.4


          Section 2 – The deeds unambiguously convey an appurtenant
                                   easement.
[9]   In the alternative, Appellants argue that the deeds are ambiguous regarding

      whether the easement is appurtenant or in gross, i.e., “personal to the Bynums

      or their family[,]” and therefore a genuine issue of material fact remains on this

      issue. Appellants’ Br. at 22. “The object of deed interpretation is to identify




      3
       The 1979 and 1995 deeds contain no “subject to” language whatsoever. The 2001 deed states that the
      conveyance from Jason to the Shorts is “[s]ubject to all easements, restrictions, assessments,” etc.,
      Appellants’ App. at 93, but it is undisputed that the easement at issue does not run through the Shorts’ real
      estate.
      4
        Appellants rely primarily on Oakes v. Hattabaugh, 631 N.E.2d 949 (Ind. Ct. App. 1994), trans. denied, which
      is factually distinguishable because the easement in that case was described in the deeds to the servient estate,
      which “failed to name any dominant tenement or specify that the easement was created in favor of any
      particular landowner.” Id. at 951.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017                  Page 6 of 8
       and implement the intent of the parties to the transaction as expressed in the

       plain language of the deed.” Kopetsky, 838 N.E.2d at 1124 (citation omitted).


               Whenever possible, we apply the terms of the deed according to
               their clear and ordinary meaning. We presume that the parties
               intended for every part of a deed to have some meaning, and we
               favor a construction that reconciles and harmonizes the entire
               deed. Courts may resort to extrinsic evidence to ascertain the
               intent of the parties only where the language of the deed is
               ambiguous. A deed is ambiguous if it is susceptible to more than
               one interpretation and reasonably intelligent persons would
               honestly differ as to its meaning.


       Id. (citations and quotation marks omitted). “Extrinsic evidence cannot be used

       to create an ambiguity.” Bar Plan Mut. Ins. Co. v. Likes Law Office, LLC, 44

       N.E.3d 1279, 1285 (Ind. Ct. App. 2015) (referring to contracts).


[10]   “To be appurtenant, an easement must inhere in the land, concern the premises

       and be essentially necessary to its enjoyment.” Consol. Coal Co. v. Mutchman,

       565 N.E.2d 1074, 1083 (Ind. Ct. App. 1990), trans. denied (1991). “Appurtenant

       rights are those which benefit the owner of land in a way that cannot be

       separated from the land.” Id. “An easement is appurtenant if it passes with the

       dominant tenement by conveyance or inheritance. An easement is in gross if it

       is a mere personal right which cannot be granted to another person or

       transmitted by descent.” Jeffers v. Toschlog, 178 Ind. App. 603, 605, 383 N.E.2d

       457, 458 (1978). “An easement will not be presumed to be in gross when it can

       be construed fairly to be appurtenant to the land.” Id. at 606, 383 N.E.2d at

       459.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017   Page 7 of 8
[11]   The trial court noted that “[t]he 1979 deed grants an easement for ‘ingress and

       egress’ to the property deeded to John Bynum[,]” which “indicates that the

       easement was intended to benefit a land possessor (John Bynum) in his use of

       the possessed land.” Appealed Order at 11. The trial court further noted that

       although Appellants argued that “the easement was meant to stay in the Bynum

       family, … they [did] not contest the fact that John Bynum transferred the

       easement to his son Jason. This transfer alone contradicts the rule that

       easements in gross are personal, cannot be granted to another person, and

       cannot be transferred by descent.” Id. The same can be said for Jason’s

       conveyance of the easement to the Shorts. Quite simply, the deeds

       unambiguously convey an appurtenant easement to the successive grantees, and

       Appellants’ designated evidence that Betty and her husband intended for the

       easement to remain in the family cannot be used to create an ambiguity or a

       genuine issue of material fact that would preclude summary judgment in

       Appellees’ favor. Accordingly, we affirm the trial court.


[12]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-PL-1921 | June 26, 2017   Page 8 of 8
