Patricia Whitt v. Denise R. Devos (mem. dec.)

      MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2020, 9:10 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Janette E. Surrisi Lindsay

      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Dec 30 2020, 9:10 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Janette E. Surrisi                                       Lindsay N. Shively
      Plymouth, Indiana                                        James E. Easterday
                                                               Plymouth, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Patricia Whitt,                                          December 30, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               20A-CT-810
              v.                                               Appeal from the Marshall Circuit
                                                               Court
      Denise R. Devos,                                         The Honorable Curtis D. Palmer,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               50C01-1905-CT-30



      Altice, Judge.


                                             Case Summary
[1]   This is a property line dispute that involves a small, triangular swath of land

      (the Disputed Property) between two residential lots, one owned by Patricia


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020                  Page 1 of 16
      Whitt and the other owned by Denise Devos. Whitt filed a complaint for

      encroachment and continuing trespass against Devos after Devos refused to

      move a shed that Whitt alleged encroached on her property by as much as 2.7

      feet. Devos filed an answer and a counterclaim requesting a declaratory

      judgment that she was the true and rightful owner of the Disputed Property by

      way of adverse possession. Following a bench trial, the trial court entered

      judgment in favor of Devos, finding that she acquired title to the Disputed

      Property by adverse possession. The court ordered that the legal description for

      Devos’s property be changed to include the Disputed Property. Whitt now

      appeals.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Whitt owns real estate in Argos, Marshall County, Indiana, and Devos owns

      the residential parcel contiguous to Whitt’s. The parcels are rectangular, single-

      family residential properties that front onto West South Street and have

      detached garages located on an alleyway at the rear of their respective parcels.

      The garages are approximately four feet apart.


[4]   Claude Howell owned and resided on what is now Whitt’s property from 1988

      until 2006. At some point during that time, Howell constructed a six-foot

      wooden privacy fence (the Fence) around his back yard. The Fence ran right

      up beside his garage and to the house, including between the two properties.

      Howell believed he erected the Fence on his property but along the property

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 2 of 16
      line. While Howell resided at the property, he never had any conversation or

      entered into any agreement with anyone regarding the location of the property

      line or the location of the property line in relation to the Fence.


[5]   In 2004, Donald Walls purchased Howell’s property at a tax sale and took

      possession after he received the tax deed in January 2006. Walls never resided

      on the property as he purchased it to fix up and resell. While Walls owned the

      property, he never had any discussion with Devos about the location of the

      property line between their respective parcels. In 2007, Walls entered into a

      land contract to sell the property to Johnny Whitt, Sr., and Whitt.1 After

      completion of the land contract, Walls deeded the property to the Whitts. In

      December 2012, Johnny quitclaimed his interest in the property to Whitt. They

      have continuously resided on the property since 2007. They have never had

      any conversations or agreements regarding the location of the property line

      shared with Devos.


[6]   Devos (and her then husband) purchased the property adjacent to what is now

      Whitt’s in 1998, and Devos has continuously resided on the property since that

      time. Her current husband, Pete Devos, now resides on the property with her.

      The Fence was in place when Devos purchased her parcel and her prior

      husband planted a row of elm trees continuing from and along the same line as

      the Fence toward the front property line. Devos and her current husband



      1
       On the warranty deed, Whitt is identified as “Patricia Belcher” as she had not yet married Johnny.
      Appellant’s Appendix Vol. 3 at 16.

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020                Page 3 of 16
      always maintained the property on their side of and up to the Fence and row of

      elm trees (now a row of shrubs), including mowing, fertilizing, and weeding.

      Devos obtained a fiberglass shed and placed it in the back yard very near the

      Fence in 2005. Although the shed is not permanently affixed to the ground, it

      has remained in the same location since. For all but one year, Devos timely

      paid taxes on her property. Although Devos did not pay their property taxes in

      2015 for the 2014 tax year, by 2018 she had paid all taxes due such that there

      “is currently no balance due on that parcel.” Transcript Vol. 2 at 53. Starting in

      2012, Devos’s tax liability included the fiberglass shed after it was physically

      discovered during a general assessment of the property.


[7]   The boundary line between the properties was called into question in 2017

      when Whitt tore down her garage and sought to replace it with a new, larger

      garage. As part of this process, Whitt had to seek a variance from the Argos

      Board of Zoning Appeals (the Board). In response, the Board required that a

      survey be performed to establish the property line between Whitt’s and Devos’s

      property.


[8]   Whitt had a legal survey completed, which was recorded with the Marshall

      County Recorder on August 18, 2017. When the survey was performed, only a

      small portion of the Fence along the shared property line remained. There was

      also a row of shrubs the Whitt had planted that continued near the same line

      where the elm trees once stood. On the survey, the surveyor noted an

      “inconsistency in lines of occupation” in that the actual property line was

      something other than the location of the still-existing portion of the Fence and

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 4 of 16
      the row of shrubs. Exhibit Index at 7. The survey also showed that Devos’s shed

      was two point seven feet over the property line and her garage was half a foot

      over the property line. 2 Whitt started to erect a new fence alone the boundary

      line as determined by the survey but could not complete the project because of

      the location of the shed. Whitt asked the Devos to move the shed and,

      according to Johnny, Devos initially indicated she would do so. Whitt,

      however, received a letter from counsel for Devos stating that the shed was

      located on Devos’s property and would not be moved.


[9]   On May 22, 2019, Whitt filed a complaint for encroachment against Devos

      requesting an order that Devos remove her shed from Whitt’s property. On

      August 13, 2019, Devos filed her answer and counterclaim, wherein she

      requested, in part, a declaratory judgment that she was the true and rightful

      owner of the Disputed Property by way of adverse possession. 3 The trial court

      held a bench trial on February 20, 2020. On March 6, 2020, the trial court

      entered judgment in favor of Devos on her counterclaim. Specifically, the trial

      court concluded that Devos’s maintenance and use of the property, including

      installation of the shed, were sufficient to establish her control over the

      Disputed Property, an intent to claim full ownership of the Disputed Property,




      2
        Whitt acknowledges that Walls informed her that Devos’s garage encroached on her property by a few
      inches.
      3
        Devos also claimed $9000 in damages to her garage foundation and personal property due to Whitt’s
      installation of a rubber barrier and gravel between their garages that Devos claimed caused water to run off
      into her garage.

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020                  Page 5 of 16
       and notice to Whitt that she was exercising exclusive control over the Disputed

       Property. The court also found that Devos established that she exercised

       control, intent, and notice for the requisite ten-year period. With regard to

       payment of real estate taxes, the court concluded:


                  There is no evidence regarding any reasonable and good faith
                  belief of either owner that they paid any more or less property
                  taxes than what they believed their property encompassed. For
                  [Devos] that was up to the wooden fence line, and the same for
                  [Whitt] on her side of the wooden fence line. Given the
                  historical uses of that area and the historical mowing patterns,
                  their beliefs were not unreasonable.


       Appellant’s Appendix Vol. II at 13. The court therefore concluded that Devos

       acquired ownership to the Disputed Property by adverse possession and was the

       rightful owner thereof. 4 Whitt now appeals. Additional information will be

       provided as necessary.


                                           Discussion & Decision
[10]   We begin by noting that the trial court entered findings of fact and conclusions

       pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or

       judgment unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 

726 N.E.2d 1206

, 1210 (Ind. 2000). In our review, we first consider whether the

       evidence supports the factual findings.

Id. Second, we consider

whether the




       4
           The trial court denied Devos’s claim for damages.


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 6 of 16
       findings support the judgment.

Id. “Findings are clearly

erroneous only when

       the record contains no facts to support them either directly or by inference.”

       Quillen v. Quillen, 

671 N.E.2d 98

, 102 (Ind. 1996). A judgment is clearly

       erroneous if it relies on an incorrect legal standard. 

Menard, 726 N.E.2d at 1210

. We give due regard to the trial court’s ability to assess the credibility of

       witnesses.

Id. We do not

reweigh the evidence; rather we consider the

       evidence most favorable to the judgment with all reasonable inferences drawn

       in favor of the judgment. Yoon v. Yoon, 

711 N.E.2d 1265

, 1268 (Ind. 1999). We

       evaluate questions of law de novo and owe no deference to a trial court’s

       determination of such questions. Kwolek v. Swickard, 

944 N.E.2d 564

, 570 (Ind.

       Ct. App. 2011) (citing McCauley v. Harris, 

928 N.E.2d 309

, 313 (Ind. Ct. App.

       2010), trans. denied), trans. denied.


[11]   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. at 486.

In reviewing a judgment requiring

       proof by clear and convincing evidence,


               an appellate court may not impose its own view as to whether the
               evidence is clear and convincing but must determine, by
               considering only the probative evidence and reasonable
               inferences supporting the judgment and without weighing
               evidence or assessing witness credibility, whether a reasonable
               trier of fact could conclude that the judgment was established by
               clear and convincing evidence.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 7 of 16
       Fraley v. Minger, 

829 N.E.2d 476

, 483 (Ind. 2005) (quoting In re Guardianship of

       B.H., 

770 N.E.2d 283

, 288 (Ind. 2002)).


[12]   In Fraley, our Supreme Court reformulated the common law elements necessary

       for a person to obtain title to land through the doctrine of adverse possession

       and held that the claimant must establish clear and convincing proof of control,

       intent, notice, and duration. The Court explained each of these elements,

       noting their relationship with the prior common law elements, 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. The requisite period

of time to establish adverse possession is ten years.

Id. at 484.

In addition to the common law elements for adverse possession, the

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 8 of 16
       General Assembly “has added 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.” Celebration Worship Center, Inc. v. Tucker, 

35 N.E.3d 251

, 254 (Ind.

       2015) (citing Ind. Code § 32-21-7-1).


[13]   Whitt first challenges the trial court’s determination that Devos’s maintenance

       activities, i.e., mowing, fertilizing, etc., sufficiently established the elements of

       control, intent, and notice. In support of her argument, Whitt directs us to

       McCarty v. Sheets, 

423 N.E.2d 297

(Ind. 1981). In McCarty, the defendants’

       garage encroached on the adjoining neighbor’s lot. The defendants testified

       that they cut the grass along the side of his garage and the general area in front

       and in back of it and that they paid all of the taxes assessed against the real

       estate, including the taxes assessed against the garage. The court quieted title in

       the defendants, not only to the land upon which his garage stood but also to a

       four-foot-two-inch wide strip of land along the shared property line with the

       stated intention “to establish the boundary line at a point midway between the

       garages of the plaintiff and the defendants.”

Id. at 300.

The Supreme Court

       reversed, concluding that “the only ‘palpable and continuing’ act of ownership

       went to the land actually encroached upon by Defendants’ garage.”

Id. The Court acknowledged

that “maintenance activities in a residential area are a

       factor in a property dispute,” but nevertheless found that the defendants’ acts of

       maintaining the property generally around the garage did not, “standing alone,”


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 9 of 16
       support divesture of the additional strip of land by adverse possession.

Id. The Court found

the defendants’ actions to be in the nature of periodic and sporadic

       acts of ownership, which “are not sufficient to constitute adverse possession.”

Id. at 301.

The Court held that the trial court erred in awarding defendants

       more land than that occupied by their garage.


[14]   We find the McCarty case distinguishable here. Since Devos purchased the lot

       in 1998, she has consistently maintained the property up to the Fence. As the

       trial court found, in addition to mowing, weeding, and fertilizing the Disputed

       Property, Devos had the fiberglass shed erected near the Fence in 2005.

       Clearly, Devos did more than sporadically maintain some undefined strip of

       land; rather, she consistently maintained the Disputed Property. Her

       maintenance activities taken with the placement of the shed is sufficient

       evidence from which the trial court could have concluded that Devos satisfied

       the elements of control, intent, and notice as to the Disputed Property. See

       Herrell v. Casey, 

609 N.E.2d 1145

, 1148 (Ind. Ct. App. 1993) (maintaining,

       building a shed, and storing possessions on disputed property held sufficient);

       Penn Cent. Transp. Co. v. Martin, 

353 N.E.2d 474

, 477-78 (Ind. Ct. App. 1976)

       (mowing grass and erecting improvements held sufficient).


[15]   Whitt also asserts that the trial court’s judgment was in error because the court

       had “an important misunderstanding concerning the position of the fence.”

       Appellant’s Brief at 12. Specifically, Whitt suggests that the court erroneously

       understood that the Fence ran the entire length of the property line between the

       adjacent parcels, when in fact it did not. To the extent Whitt is suggesting that

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 10 of 16
       adverse possession requires a fence or other type of landmark to identify land

       claimed to be adversely possessed, she is mistaken. There is no such

       requirement in the law.


[16]   Here, Pete Devos testified that he “just assumed” that the perceived property

       line “followed that fence line up on out to the street” and that they always

       maintained the property up to that line. Transcript Vol. 2 at 90. The court

       awarded Devos only the sliver of property created by running the new property

       line starting at the shed and running at such an angle to keep a nearly straight

       line intact as between the two parcels, not any additional property as the trial

       court in McCarty erroneously awarded. Even if, as Whitt claims, the trial court

       mistakenly believed the Fence ran the entire length of the property, its

       conclusion that Devos acquired title to the Disputed Property by adverse

       possession is not affected.


[17]   Whitt also argues that Devos did not establish the elements of adverse

       possession for the requisite duration of ten years. Whitt asserts no “reasonable

       trier of fact could determine that the element of duration was proved by clear

       and convincing evidence” when the only evidence supporting the trial court’s

       finding that the shed was erected in 2005 is the “self-serving” testimony of

       Devos and her current husband. Appellant’s Brief at 16, 17.


[18]   Whitt’s predecessors in title (Howell and Walls) testified that they did not recall

       the shed being in place when they held title. Howell was shown Plaintiff’s

       Exhibit 8, a picture of the remaining partial fence and the shed, and he testified


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 11 of 16
       that he did not “recognize” the “storage building.” Transcript Vol. 2 at 32.

       Walls testified that Devos’s shed was not there when he purchased the property,

       but in later questioning, he clarified, “I don’t remember a shed being there.”

Id. at 40.

Walls never lived on the property. The Marshall County Assessor

       testified that Devos’s shed did not show up on the property record card until

       2012. Her testimony in this regard was based on the fact that the shed was not

       identified on a prior general assessment of the property. She did not identify

       when the prior general assessment occurred but noted that at that time such

       were occurring every “five or ten years.”

Id. at 50.

The Assessor did not testify

       that the shed was erected in any specific year. Finally, Whitt points to her

       testimony and that of her husband in which they stated that the shed was

       erected in August of 2007.


[19]   In contrast to this testimony, Pete testified unequivocally that he erected the

       shed in 2005. He explained how he acquired the shed from a friend, dismantled

       the shed and numbered each piece, and then erected the shed on Devos’s

       property the following weekend. He testified that before the bench trial, he

       reached out to his friend and confirmed the year he received the shed. He also

       recalled that he placed the shed next to a line of elm trees and that the row of

       elm trees fell over a couple years later during a storm in May 2007. Devos

       testified that she helped her husband erect the shed on her property in 2005.


[20]   To the extent there was conflicting evidence, such was for the trial court to

       assess witness credibility and weigh the evidence. As we noted above:



       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 12 of 16
               an appellate court may not impose its own view as to whether the
               evidence is clear and convincing but must determine, by
               considering only the probative evidence and reasonable
               inferences supporting the judgment and without weighing
               evidence or assessing witness credibility, whether a reasonable
               trier of fact could conclude that the judgment was established by
               clear and convincing evidence.


       

Fraley, 829 N.E.2d at 483

(quoting In re 

B.H., 770 N.E.2d at 288

).


[21]   Here, the trial court clearly believed the testimony of the Devos and her

       husband. Pete testified as to when the shed was erected on Devos’s property

       and his testimony supports the trial court’s finding that the shed was erected in

       2005 and had been in the same location for more than ten years. The evidence

       supports the trial court’s determination that the duration element of adverse

       possession was met.


[22]   Finally, Whitt argues that Devos did not demonstrate compliance with the

       adverse possession tax statute. I.C. § 32-21-7-1(a) provides:


               Except as provided in subsection (b), in an action to establish title
               to real property, possession of the real property is not adverse to
               the owner in a manner as to establish title to the real property
               unless the adverse possessor pays 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. However, this section does not relieve any adverse
               possessor from proving all the elements of title by adverse
               possession required by law.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 13 of 16
       (Emphasis supplied). Whitt contends that the emphasized language “suggests

       that the [tax] payments must be made, on time, within the time period in which

       the claimant is asserting adverse possession.” Appellant’s Brief at 20. Whitt thus

       argues that because the evidence showed Devos did not pay her property taxes

       in 2015 (for the 2014 tax year) her claim of adverse possession fails.


[23]   As our Supreme Court has held, 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.” 

Fraley, 829 N.E.2d at 493

. Here, Devos and Pete testified

       that they had paid the taxes due on their property since they owned it and that

       they believed their property ran up to the Fence and then in a straight line from

       the Fence. Although Devos did not timely pay the 2014 property taxes when

       due in 2015, the county treasurer testified that Devos eventually paid her

       property taxes in full through 2018. Based on this evidence, we conclude that

       Devos substantially complied with the adverse possession tax statute.


[24]   We also disagree with Whitt’s reliance on Celebration, 

35 N.E.3d 251

, as support

       for her reading of the adverse possession tax statute. In Celebration Worship,

       there was a boundary dispute similar in nature to that at issue here. In

       considering the evidence pertaining to payment of property taxes, the Court

       noted, as is pertinent here, that the county tax records showed there was “no

       arrearage in taxes.”

Id. at 255.

Payment of the property tax, however, was not

       at issue. Rather, the Court was asked to consider whether the homeowners

       claiming adverse possession had a good faith belief that they had paid all taxes

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 14 of 16
       on the disputed real estate. The Court’s statement that there was “no arrearage

       in taxes” was an acknowledgment of the evidence, not a statement that the

       adverse tax possession statute requires continuous and timely payments of all

       property taxes. To interpret the Court’s statement in that manner does not

       comport with the Court’s statement that substantial compliance with the

       adverse possession tax statute is all that is required. Here, as we stated above,

       the evidence presented demonstrates that Devos substantially complied with the

       adverse possession tax statute.


[25]   As we concluded above, Devos exercised palpable and continuing acts of

       ownership, including mowing, fertilizing, weeding, and placing a shed within

       the Disputed Property. In granting Devos adverse possession, the trial court

       provided the following legal description for the Disputed Property:


               Commencing 218.43 feet west of Michigan Road on the South
               side of South Street in the Town of Argos, Indiana; thence South
               20°33’08” E 140.09 feet to an alley in Lowery’s Continued
               Addition to the Town of Argos, thence West along the North
               side of said alley 3.8 feet; thence Northerly in a straight line to
               the place of beginning.


       Exhibit Index at 211. Thus, at its widest, the Disputed Property is 3.8 feet and

       the new property line that is created is a straight line between the properties that

       accounts for the placement of Devos’s garage and shed, areas that she

       consistently maintained and occupied. The trial court did not err in granting

       Devos’s request for adverse possession to the Disputed Property in its entirety.


[26]   Judgment affirmed.
       Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 15 of 16
Riley, J. and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A-CT-810 | December 30, 2020   Page 16 of 16

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