Stewart H. Hudson and Shelia D. Hudson v. The Winford D. Dixon Revocable Living Trust, Crystal J. Dixon, Trustee, Trevor Robbins, Amanda Robbins (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                FILED
    regarded as precedent or cited before any                       Dec 13 2017, 7:09 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                                  ATTORNEYS FOR APPELLEES
    R. Patrick Magrath                                       Brent E. Steele
    Alcorn Sage Schwartz & Magrath, LLP                      Steele & Steele, LLC
    Madison, Indiana                                         Bedford, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Stewart H. Hudson and                                    December 13, 2017
    Shelia D. Hudson,                                        Court of Appeals Case No.
    Appellants-Defendants,                                   47A01-1704-PL-865
    Appeal from the Lawrence Circuit
    v.                                               Court
    The Honorable Andrea K.
    The Winford D. Dixon                                     McCord, Judge
    Revocable Living Trust,                                  Trial Court Cause No.
    Crystal J. Dixon, Trustee,                               47C01-1505-PL-699
    Trevor Robbins,
    Amanda Robbins,
    Appellees-Plaintiffs
    Baker, Judge.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 1 of 15
    [1]   Stewart and Shelia Hudson appeal the trial court’s order granting the quiet title
    action filed by The Winford D. Dixon Revocable Living Trust (the Dixon
    Trust) and Trevor and Amanda Robbins. The Hudsons contend that the trial
    court erroneously determined that the Dixon Trust and the Robbinses
    established adverse possession of the disputed property. Additionally, the
    Hudsons appeal the trial court’s denial of their request for an easement of
    necessity over a portion of land owned by the Dixon Trust. Finding no error,
    we affirm.
    Facts
    [2]   In 1881, Mary Dixon acquired a parcel of real estate in Lawrence County. In
    1898, Mary sold a portion of that real estate to Emma (Dixon) Dodds. That
    real estate is now owned by the Dixon Trust (the Dixon Trust Property). 1 In
    1899, Mary sold the other portion of her real estate to Josiah and Thomas
    Dixon. That property was transferred five times within the Dixon family
    between 1899 and 2006, when it was sold to Kevin and Tammie Biddle. In
    2013, the Biddles lost the property in foreclosure to Farm Credit Services,
    which sold it to the Hudsons in 2014. The Hudsons are the current owners of
    that real estate (the Hudson Property). The Dixon Trust Property, which is
    approximately 19 acres, and the Hudson Property, which is approximately 108
    acres, abut one another.
    1
    The Robbinses have an equitable interest in the Dixon Trust Property pursuant to a land contract.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017            Page 2 of 15
    [3]   The area of real estate in dispute (the Disputed Property) is a 2.5-acre tract that
    is wholly contained within the legal description of the Hudson Property. The
    Disputed Property is located between a creek and the legal boundary line
    separating the Dixon Trust Property from the Hudson Property. Some parts of
    the Disputed Property are mowed, while others are overgrown with brush and
    trees. Many decades ago, a fence was erected along the creek. Throughout the
    history of the two properties, the owners have treated the creek/fence line as the
    boundary line.
    [4]   Hubert Thomas Dixon (Tommy) was a predecessor in title to the Hudsons; he
    owned the Hudson Property from 1980 through 2006. Tommy testified that the
    Disputed Property was always used and maintained by the Dixon family.
    According to Tommy, Winford Dixon—prior owner of the Dixon Trust
    Property, which was placed in the family trust in 2008—had the hay cut from
    the Disputed Property from the time he acquired the real estate in 1958.
    Additionally, Winford installed a septic system at some point during his
    ownership of the real estate, and the septic field extends underneath the
    Disputed Property. Winford farmed part of the Disputed Property and his
    family occasionally used part of it as a softball field.
    [5]   The Hudson Property contains a field on the northeast segment of the real
    estate (the Back Property). When Tommy owned this real estate, he used the
    Dixon driveway and a trail beyond it to access the Back Property, but always
    got permission from Winford before doing so. No one accessed the Back
    Property or the trail beyond it without Winford’s permission.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 3 of 15
    [6]   When Tommy sold the Hudson Property to the Biddles in 2006, he told them
    that he would introduce them to Winford and that they would have to resolve
    any desired use of Winford’s property with him. An old road, since overgrown,
    called the Hubert Dixon Road, can also be used to access the Back Property;
    that road is on the Hudson Property. The Hudsons have used a tractor to
    access the Back Property via the Hubert Dixon Road. Winford gave permission
    to the Biddles to use the driveway and trail to the Back Property. He later
    withdrew that permission, however, because the Biddles were driving up and
    down the driveway too fast on their four-wheeled vehicles and had turned his
    driveway into “a playground for the kids that lived with the Biddles.” Tr. Vol.
    II p. 34. After that, no one aside from Winford, his family, and people hired by
    them used the driveway.
    [7]   After Tommy sold the Hudson Property to the Biddles, the person with whom
    Winford contracted to cut and remove the hay on the Disputed Property
    continued to do so. The Biddles did not tell that individual to get off their
    property.
    [8]   In August 2014, Amanda and Trevor Robbins entered into a contract to
    purchase the Dixon Trust Property. Two months later, the Hudsons acquired
    their real estate. Stewart Hudson asked Amanda where she thought the
    property line was, and she replied that she believed it was the creek. He also
    asked her for permission to come through her back field if water blocked the
    bridge to his house; the Robbinses agreed. After having a survey performed, the
    Hudsons presented the Robbinses with a contract to exchange a fifty-foot
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 4 of 15
    easement for the Disputed Property.2 The Hudsons intended to use the
    easement to build a county-managed road, install utilities, and build houses on
    the Back Property. The easement would have removed a portion of the
    Robbinses’ garage, and the Robbinses believed that the Disputed Property
    already belonged to them, so they refused to sign. After that, relations between
    the neighbors deteriorated dramatically.
    [9]    On May 29, 2015, the Dixon Trust and the Robbinses filed a complaint to quiet
    title to the Disputed Property. On July 28, 2015, the Hudsons filed an answer
    and a counterclaim seeking a prescriptive easement and an easement of
    necessity for access to the Back Property. A bench trial took place on February
    16, 2017. At this time, the Lawrence County Courthouse was under
    reconstruction and work was being done on the roof. The trial proceeded, and
    none of the parties objected based on noise levels. Subsequent to the hearing,
    the trial court judge conducted a visual inspection of the real estate at issue.
    [10]   On March 27, 2017, the trial court ruled in favor of the Dixon Trust and the
    Robbinses on their quiet title action and ruled against the Hudsons on their
    request for an easement. In pertinent part, the trial court found as follows:
    2
    The Hudsons presented a similar agreement to the trustee of the Dixon Trust; she also declined.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017               Page 5 of 15
    Easement of Necessity
    20.     The [Hudsons’] home residence abuts a blacktop county
    road which provides access to any and all of the
    [Hudsons’] real estate.
    21.     The aerial pictures entered into evidence at the trial show
    there were trails and roadways leading across various
    places on the lands of the [Hudsons] to [the Back
    Property].
    22.     Upon a physical examination and walk-through of the real
    estate, the Court saw what appeared to be a road made
    with some sort of heavy equipment with gravel on it, with
    an incline that appeared able to be traveled on by a four-
    wheel drive vehicle and did not appear particularly
    cumbersome.
    ***
    24.     The court finds in favor of [the Dixon Trust] and against
    the [Hudsons] in their request for an easement of necessity.
    Adverse Possession
    25.     Upon a physical examination of the property by the Court,
    old, rusted wire was found growing out of the dead center
    of a large sycamore tree. Old, but newer wire fencing had
    been installed outside the tree. The Court could see the
    fence had been placed and maintained over many years,
    with fence ranging from woven wire embedded in the trees
    to barbed wire from two (2) different periods of time, one
    more dilapidated and rusted than the newer. The Court
    finds that the wire fence along the branch of the creek
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 6 of 15
    bordering the [Disputed Property] had been placed along
    this property line a very long time ago in the history of this
    real estate.
    26.     [Tommy] testified that he was born on this property in
    1936, grew up on the real estate and the wire fence along
    the creek had been the boundary line since his father
    acquired the real estate. . . . He testified he never thought
    he owned any real estate beyond the creek.
    27.     [Multiple witnesses] all testified that the [Dixon Trust] and
    its predecessors in title used the [Disputed Property] for
    everything from placement of a wrought iron fence in the
    early 1900s, septic fingers and tank in 1959, erecting
    clothesline and poles many years ago . . . , placing satellite
    TV antennae in the 1990s, farming operations cutting hay,
    planting and harvesting crops for decades and as a softball
    field.
    ***
    29.     The fence in this case was in existence for over seven (7)
    decades prior to the Hudson’s [sic] purchase of their real
    estate in 2014, far in excess of the ten (10) years required
    for adverse possession. The Dixon family acquiesced to
    and set this fence line a long, long time ago.
    30.     The [Disputed Property] was always used by [the Dixon
    Trust] and its predecessors in title and never by the
    [Hudsons’] or their predecessors in title.
    ***
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 7 of 15
    37.     [The Dixon Trust and the Robbinses] have met their
    burden of proof regarding adverse possession . . . .
    38.     Title to the [Disputed Property] should be quieted in the
    name of the [Dixon Trust], free and clear of any claim of
    the [Hudsons].
    Appealed Order p. 6-10. The Hudsons now appeal.
    Discussion and Decision
    I. Due Process
    [11]   First, the Hudsons argue that their procedural due process rights were violated
    because of the construction to the courthouse that was ongoing during the trial.
    According to the Hudsons, the noise made it difficult to hear testimony and
    caused many portions of the transcript to be indecipherable. Procedural due
    process “is the opportunity to be heard at a meaningful time and in a
    meaningful manner,” Perdue v. Gargano, 
    964 N.E.2d 824
    , 832 (Ind. 2012), and
    generally includes “‘an opportunity to present every available defense,’” Morton
    v. Ivacic, 
    898 N.E.2d 1196
    , 1199 (Ind. 2008) (quoting Lindsey v. Normet, 
    405 U.S. 56
    , 66 (1972)).
    [12]   Initially, we note that the Hudsons did not object to the trial court’s decision to
    proceed with the trial in the midst of the ongoing construction. Moreover, they
    did not file a motion to correct error or a motion for relief from judgment
    related to the construction noise. As a result, this argument has been waived.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 8 of 15
    [13]   Waiver notwithstanding, we note that the court reporter executed an affidavit
    explaining that the numerous instances of “indiscernible” in the transcript were
    the result of malfunctioning recording equipment, not of the noise in the
    courtroom. Appellees’ App. Vol. II p. 15. Moreover, the court reporter
    attested that there was special equipment available for people with hearing
    impairments, but no one requested to use that equipment during the trial.
    [14]   In any event, the Hudsons received a full and fair trial, including direct and
    cross-examination of witnesses and an in-person trip to the properties by the
    trial court judge. The Hudsons also filed a post-trial brief in support of their
    positions, meaning that they were able to present the trial court with their
    arguments in writing—a format entirely unaffected by the noise in the
    courtroom. Under these circumstances, we decline to reverse based on due
    process concerns.
    II. Adverse Possession
    [15]   The Hudsons next argue that the trial court erroneously determined that the
    Dixon Trust is entitled to adverse possession of the Disputed Property. To
    establish adverse possession, a claimant must show “clear and convincing proof
    of control, intent, notice, and duration.” Fraley v. Minger, 
    829 N.E.2d 476
    , 485
    (Ind. 2005). These elements, which must be satisfied for a period of ten years,
    are defined 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
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 9 of 15
    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. In evaluating the trial court’s conclusion that adverse possession was
    established, we may consider only the probative evidence and reasonable
    inferences supporting the judgment, may not reweigh evidence or assess witness
    credibility, and will affirm if a reasonable trier of fact could conclude that the
    judgment was established by clear and convincing evidence. Id. at 483.
    A. Notice
    [16]   The only Fraley element challenged by the Hudsons in this case is the element
    of notice. According to the Hudsons, the actions of the Dixon Trust and its
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 10 of 15
    predecessors in title were not sufficiently visible, open, and notorious to
    establish this element by clear and convincing evidence.
    [17]   The record reveals the following evidence regarding the use of the Disputed
    Property by the Dixon Trust and its predecessors in title:
    • The Dixon family had large portions of the Disputed Property mowed.
    • They also farmed part of the Disputed Property.
    • The Disputed Property included a yard in which the family sometimes
    played softball, as well as a clothesline and a satellite television dish.
    • Winford had a septic system constructed, and the septic field underlies
    part of the Disputed Property.
    • A fence consistent with the use of the Disputed Property by the Dixon
    Trust and its predecessors in title has been in place for many decades.
    • Throughout the years, the respective owners of the Dixon Trust Property
    and the Hudson Property have believed that the Disputed Property is
    part of the Dixon Trust Property and have acted accordingly.
    This evidence supports the trial court’s conclusion that the Dixon Trust
    established the notice element of adverse possession. While the Hudsons direct
    our attention to other evidence in the record supporting their argument that
    notice was not established, this amounts to a request that we reweigh the
    evidence—a request we decline.
    B. Taxes
    [18]   In addition to the elements described by our Supreme Court in Fraley, an
    adverse possessor must also comply with Indiana Code section 32-21-7-1
    regarding payment of taxes. This statute requires an adverse possessor to pay
    all taxes and special assessments that the adverse possessor reasonably believes
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 11 of 15
    in good faith to be due on the property during the period of claimed adverse
    possession. I.C. § 32-21-7-1(a).
    [19]   The Hudsons contend that the Dixon Trust failed to establish compliance with
    Indiana Code section 32-21-7-1 and that the trial court erred by neglecting to
    make a finding regarding payment of taxes.
    [20]   At the outset of the trial, the parties informed the trial court that “[w]e’ve also
    stipulated through the (indiscernible) decision that taxes are what they are. The
    Plaintiff and Defendant have each paid the taxes in accordance with their tax
    papers as sent by the Treasurer.” Tr. Vol. II p. 3-4. The Hudsons argue that
    the Dixon Trust should have entered those “tax papers” into evidence, but we
    cannot agree that this action was required given that the parties had stipulated
    to the issue.
    [21]   While this stipulation is far from a model of clarity, it is apparent that the
    parties were endeavoring to simplify the litigation by agreeing on the issue of
    taxes from the outset. Stipulations are binding upon the parties and the trial
    court and may not be challenged on appeal. E.g., Norris Ave. Prof’l Bldg. P’ship v.
    Coordinated Health, LLC, 
    28 N.E.3d 296
    , 299 (Ind. Ct. App. 2015); Wayne Twp.
    v. Lutheran Hosp. of Fort Wayne, Inc., 
    590 N.E.2d 1130
    , 1133 (Ind. Ct. App.
    1992). Because the parties stipulated that the Dixon Trust had paid all taxes,
    presumably including the Disputed Property, the Hudsons may not now
    challenge that fact.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 12 of 15
    [22]   As for whether the trial court was required to include a finding regarding taxes,
    we agree that it would have been the better practice to have done so. But we
    cannot say that the trial court was required to do so, since the parties had
    expressly agreed on the issue. Furthermore, were we to rule in favor of the
    Hudsons on this point, the remedy would be to remand to the trial court to add
    a finding regarding taxes, which would just be a recitation of the parties’
    stipulation—hardly an efficient use of judicial resources. Therefore, we decline
    to reverse or remand on this basis.
    III. Easement
    [23]   Finally, the Hudsons argue that the trial court erred by denying their request for
    an easement of necessity on a portion of the Dixon Trust Property.3 This Court
    has explained easements of necessity as follows:
    An easement of necessity will be implied when “there has been a
    severance of the unity of ownership of a tract of land in such a
    way as to leave one part without access to a public road.” An
    easement of necessity may arise, if ever, only at the time that the
    parcel is divided and only because of inaccessibility then existing.
    To demonstrate that an easement of necessity should be implied,
    a plaintiff must establish both unity of title at the time that tracts
    of land were severed from one another and the necessity of the
    easement.
    ***
    3
    They do not appeal the trial court’s finding that they are not entitled to a prescriptive easement.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017               Page 13 of 15
    To demonstrate that the easement is “of necessity,” a plaintiff
    must demonstrate more than that the easement would be
    beneficial or convenient. If the plaintiff has another means of
    accessing his land, he may not claim a right to pass over the land of
    another. This rule controls even if the alternate means of access would be
    more difficult or expensive for the plaintiff.
    Cockrell v. Hawkins, 
    764 N.E.2d 289
    , 292 (Ind. Ct. App. 2002) (emphasis added)
    (internal citations omitted).
    [24]   Stewart testified that there was no “practical” way to get to the Back Property
    other than through the Dixon Trust Property. Tr. Vol. II p. 95. But he also
    testified that he was able to use a tractor to access the Back Property over his
    own land to clear trees on the Back Property. Id. at 95-96. Additionally, the
    trial court found further evidence that the Hudsons would be able to access the
    Back Property without having to traverse the Dixon Trust Property:
    • The Hudsons’ home abuts a blacktop road that “provides access to any
    and all of the [Hudsons’] real estate.” Appealed Order p. 6.
    • Aerial pictures establish that there are “trails and roadways leading
    across various places” on the Hudson Property to the Back Property. Id.
    • The trial court judge herself walked through the property and observed
    “what appeared to be a road made with some sort of heavy equipment
    with gravel on it, with an incline that appeared able to be traveled on by
    a four-wheel drive vehicle and did not appear particularly cumbersome.”
    Id.
    This evidence readily supports the trial court’s conclusion that the Hudsons
    have a means—possibly multiple means—of accessing the Back Property that
    does not involve traveling over a portion of the Dixon Trust Property.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 14 of 15
    Consequently, we find that the trial court did not err by denying the Hudsons’
    request for an easement of necessity.
    [25]   The judgment of the trial court is affirmed.
    Riley, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 15 of 15
    

Document Info

Docket Number: 47A01-1704-PL-865

Filed Date: 12/13/2017

Precedential Status: Precedential

Modified Date: 12/13/2017