Richard D. Moseley and Lisa M. Moseley v. Trustees of Larkin Baptist Church and the Larkin Baptist Church, an unincorporated association ( 2020 )

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Glen E. Koch II Andrew W. Foster FILED
Boren, Oliver & Coffey, LLP The Law Office of Andrew W. Sep 11 2020, 7:52 am
Martinsville, Indiana Foster, LLC CLERK
Rockport, Indiana Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
COURT OF APPEALS OF INDIANA
Richard D. Moseley and Lisa M. September 11, 2020
Moseley, Court of Appeals Case No.
Appellants-Defendants, 20A-PL-98
Appeal from the Spencer Circuit
v. Court
The Honorable Mark R.
Trustees of Larkin Baptist McConnell, Judge
Church and the Larkin Baptist Trial Court Cause No.
Church, an unincorporated 74C01-1710-PL-544
association,
Appellees-Plaintiffs.
Najam, Judge.
Statement of the Case
[1] Richard Moseley and Lisa Moseley appeal the trial court’s order granting
summary judgment for the Trustees of Larkin Baptist Church and the Larkin
Baptist Church, an unincorporated association (collectively “the Church”) on
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the Moseleys’ adverse possession counterclaim in the Church’s action to quiet
title. The Moseleys present a single issue for our review, namely, whether the
trial court erred when it entered partial summary judgment in favor of the
Church. We affirm.
Facts and Procedural History
[2] In 1991, the Moseleys bought a home in Rockport on a one-acre parcel next to
the Church. Between 1991 and 2017, Richard regularly mowed and
maintained a grassy area located along their common boundary line, which
would later become the subject of a quiet title action by the Church (the
“disputed area”). Richard would also park different vehicles at various times
on a small portion of the disputed area.
[3] In early 2017, the Church commissioned a survey of its property, and the
survey indicated that the Church owned the disputed area. The Church’s
pastor and a trustee spoke with Lisa and showed her the location of the
property line between the two properties. Soon thereafter, Richard installed
fence posts along the edge of the disputed area. Accordingly, on March 28, the
Church wrote the Moseleys a letter asking them “to respect the property lines”
between the properties and to “cease and desist the trespassing” on the
Church’s property. Appellants’ App. Vol. 2 at 185. A few months later,
Richard completed the fence along the edge of the disputed area.
[4] On October 26, 2017, the Church filed a complaint against the Moseleys
alleging trespass, conversion, and nuisance and seeking to quiet title to the
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disputed area. On October 30, the Moseleys filed a complaint to quiet title and
for adverse possession. The two actions were then consolidated and the
Moseleys’ complaint was converted to a counterclaim.
[5] In a deposition, Richard testified in relevant part as follows:
Q: You say in your [counterclaim] against the church . . . that
you have actively and continuously occupied the [disputed area].
Can you tell me how you have occupied the [disputed area]?
A: I’ve mowed it; I’ve tended to it; I’ve used it for parking; I’ve
dr[iven] on it. Everything about that property I have taken care
of. If there was trash on it, I picked it up. If a tree limb fell on it,
I cleaned it up.
Q: Aside from what I’ll describe as the maintenance issues of the
property, tell me how it’s been physically occupied. You would
agree it’s not been physically occupied except for some of your
vehicles at various times.
A: Physical as in?
Q: You haven’t built anything on it.
A: No.
Q: There’s no structure on it.
A: No.
Q: There’s no fence on it. There wasn’t a fence on it prior to
2017.
A: Correct.
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Q: So the only use you would’ve had of that, for purposes of
using land, would be to park some vehicles at various times.
A: And maintain it; yes.
Id. at 69-70.
[6] In October 2018, the Church moved for summary judgment on the Moseleys’
adverse possession counterclaim. In January 2019, the trial court granted
summary judgment on the counterclaim in favor of the Church following a
hearing. In November 2019, the trial court held a bench trial on the Church’s
complaint. On November 27, the court issued a partial judgment in favor of the
Church on the trespass and quiet title claims. And on December 16 the court
issued a final judgment on the remaining claims and awarded the Church
$1,300 in damages and $18,000 in attorney’s fees. This appeal of the trial
court’s January 2019 summary judgment order on the Moseleys’ adverse
possession counterclaim ensued.
Discussion and Decision
[7] The Moseleys appeal the trial court’s grant of summary judgment in favor of
the Church on their adverse possession counterclaim. Our standard of review
in an appeal from summary judgment is clear:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
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party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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 material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court's decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to
Hughley).
[8] Initially, we note that the Church owns the record title to a tract containing 3.5
acres and the Moseleys own the record title to an adjacent tract containing 1.0
acre. Both parties employed land surveyors who agreed that the disputed area
is located within the Church’s legal description and that no part of the disputed
area is located within the Moseleys’ legal description. The Moseleys’ surveyor
found no discrepancies in the legal descriptions, that the deeds to the two
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properties are “consistent,” and found the survey of the Church’s surveyor “to
be correct.” Appellants’ App. Vol. 2 at 65-66.
[9] The Moseleys abandoned their contention that the disputed area is located
within their legal description and, thus, their counterclaim to quiet title. In his
deposition, Richard testified he understood that the legal description in his deed
does not include the disputed area but that he “always believed that property
was [his].” Id. at 77. Thus, the Moseleys do not seek to establish ownership of
the disputed area upon the strength of their own title but entirely by adverse
possession.
[10] Under Indiana Trial Rule 56, “[a] trial court’s findings and conclusions offer
insight into the rationale for the court’s judgment and facilitate appellate review
but are not binding on this Court.” Denson v. Estate of Dillard, 116 N.E.3d 535,
539 (Ind. Ct. App. 2018). Here, in its summary judgment order the trial court
found that:
The facts most favorable to [the Moseleys] are that the area in
question is a grassy area and that they performed yard
maintenance such as cutting grass, and generally cleaning up for
a period exceeding ten years. They also parked vehicles on the
property dozens of times between 1991 and 2016.
Appellants’ App. Vol. 2 at 220. The trial court also found that the different
vehicles, which the Moseleys parked on numerous occasions, occupied only “a
small portion” of the disputed area. Id. And the trial court concluded that
neither the yard maintenance activities nor the periodic or sporadic use of a
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small portion of the disputed area constituted the control required to establish
adverse possession by clear and convincing evidence as a matter of law. We
must agree.
[11] But the Moseleys contend that there are genuine issues of material fact that
preclude summary judgment for the Church on their adverse possession
counterclaim. 1 In Fraley v. Minger, our Supreme Court redefined adverse
possession 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 control, intent, notice, and duration, 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
1
The Moseleys do not appeal from the trial court’s judgment on the Church’s complaint. Rather, they
appeal only the entry of partial summary judgment for the Church following the court’s entry of final
judgment.
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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).
829 N.E.2d 476, 486 (Ind. 2005). These elements must be satisfied for a period
of ten years. Hoose v. Doody, 886 N.E.2d 83, 92 (Ind. Ct. App. 2008), trans.
denied; Ind. Code § 34-11-2-11 (2020). In addition, Indiana Code Section 32-21-
7-1 provides that
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.
[12] Here, in its motion for summary judgment on the Moseleys’ counterclaim for
adverse possession, the Church designated evidence showing that it has owned
the disputed area since 1973 and that it has mowed the disputed area and used
it for recreational activities since at least 1991. The Church also designated
evidence that, while Richard “occasionally parked vehicles” on the disputed
area, he did not park vehicles there “continuously for any length of time.” Id. at
107. As the summary judgment movant, the Church was required to negate at
least one element of the Moseleys’ adverse possession counterclaim. The
Moseleys do not dispute on appeal that the Church satisfied this initial burden.
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Accordingly, the burden shifted to the Moseleys to present contrary evidence
showing an issue for the trier of fact. See Hughley, 15 N.E.3d at 1003.
[13] On appeal, the Moseleys assert that, in opposition to summary judgment, they
designated evidence to satisfy each of the elements of adverse possession. The
Moseleys designated evidence that: in 1991, survey stakes were present
indicating that the disputed area was a part of their property; the Church had
mowed up to the location of the stakes outside of the disputed area; since 1991,
Richard had mowed and maintained the disputed area regularly; since 1991,
Richard has, “at various times,” parked vehicles on the disputed area; when the
Church installed a new septic system, Richard told the installer not to encroach
on the disputed area; when, in 2016, the Church mowed the disputed area
twice, Richard told the person mowing to stop mowing the disputed area;
Richard reasonably believed that his property tax payments included the
disputed area; and a local resident who knew the Moseleys had seen vehicles
belonging to Richard parked on the disputed area “many times” over fifteen
years. Appellants’ App. Vol. 2 at 141, 215. While this evidence may tend to
show Richard’s subjective belief or intent, the only designated evidence
showing actual use of the disputed area is that Richard mowed and maintained
the area and parked different vehicles on a small portion of the area “at various
times” since 1991. Id. at 141. Such occasional use is not equivalent to actual
control.
[14] Our Supreme Court has held that, “while maintenance activities in a residential
area are a factor in a property dispute, standing alone, they are not sufficient to
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support a divesture of property based upon adverse possession.” McCarty v.
Sheets, 423 N.E.2d 297, 300-01 (Ind. 1981). And the Court has also held that
“plowing, grading, seeding, mowing, fertilizing, planting a small tree and
placing a water meter on [disputed] property are not enough to establish
adverse possession.” Beaver v. Vandall, 547 N.E.2d 802, 803-04 (Ind. 1989). In
Beaver, the Court noted that “no fence was ever built or maintained on the
disputed property, no permanent structures were erected on said land, [and] no
temporary structure existed on said land for the required ten years. . . .” Id. at
804. Here, given that the Moseleys’ use of the disputed area included no
structures, either permanent or temporary, for a ten-year period and consisted
only of yard maintenance and the intermittent parking of different vehicles,
their designated evidence is insufficient to create a genuine issue of material
fact.
[15] Still, the Moseleys contend that their designated evidence is distinguishable
from the evidence in McCarty and Beaver because “the pattern of mowing was
visibly different” and Richard “parked various vehicles in the disputed area at
various times . . . [and] for a considerable amount of time.” Appellants’ Br. at
14, 16. The Moseleys maintain that their occupation of the disputed area is
analogous to that in Celebration Worship Center, Inc. v. Tucker, 35 N.E.3d 251(Ind. 2015). In Celebration Worship Center, homeowners who lived next door to
a church had used and maintained a gravel driveway near the property line for
approximately thirty years. The mother of one of the homeowners testified as
follows:
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During my ownership of the Real Estate and my use of the gravel
drive, I controlled the activities thereon, and even paid for maintenance
of the gravel driveway, including purchase of gravel and spreading of the
same on the gravel drive, and I continuously maintained my yard
over to the gravel, and at no time did the church neighbor cut the
grass or do any other maintenance to what was my yard and
what is now claimed to be the yard of my daughter.
Id. at 256 (emphasis added). And our Supreme Court observed that there was
“no evidence countering [that] sworn testimony that she, ‘along with other
members of [her] family, continuously used, controlled and occupied the Real
Estate’ for over thirty years.” Id. at 257.
[16] The Moseleys’ reliance on Celebration Worship Center is unpersuasive. The
Moseleys did not maintain any structure or any improvement akin to a gravel
driveway within the disputed area, and they do not cite any authority that a
different “pattern of mowing” would establish possession of the area.
Appellants’ Br. at 14. This Court has held that “periodic or sporadic acts of
ownership are not sufficient to constitute adverse possession.” Thompson v.
Leeper, 698 N.E.2d 395, 398 (Ind. Ct. App. 1998). Adverse possession cases are
fact-sensitive and must be decided on an individual basis. Id. There is a
substantial and material difference between the occasional, periodic, and
intermittent use here and the continuous use, control, and occupancy described
by our Supreme Court in Celebration Worship Center.
[17] The Church designated evidence in support of summary judgment sufficient to
negate the control element of the Moseleys’ adverse possession counterclaim.
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In response, the Moseleys did not designate evidence sufficient to create a
genuine issue of material fact. Accordingly, we hold that the trial court did not
err when it entered summary judgment for the Church on the Moseleys’ adverse
possession counterclaim.
[18] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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