Kay Morken v. Michael Koltz ( 2023 )

FILED
Aug 11 2023, 10:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jason M. Kuchmay Maggie L. Smith
Snyder, Morgan, & Kuchmay, LLP Darren A Craig
Fort Wayne, Indiana Frost Brown Todd LLP
Indianapolis, Indiana
James A. Federoff
Federoff Law, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kay E. Morken, August 11, 2023
Appellant-Defendant, Court of Appeals Case No.
Third-Party Plaintiff 23A-PL-295
v. Appeal from the
Steuben Circuit Court
Michael L. Koltz, The Honorable
Allen N. Wheat, Judge
Appellee-Plaintiff,
Third-Party Defendant Trial Court Cause No.
76C01-2006-PL-232
Opinion by Judge Vaidik
Judges Mathias and Pyle concur.
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Vaidik, Judge.
Case Summary
[1] After years of disagreement over an easement on his property, Michael Koltz
sued his neighbor, Kay Morken, seeking a declaratory judgment, an injunction,
and damages. After Morken successfully defended against the claim, she sought
attorney’s fees under Indiana Code section 32-30-6-7, which addresses nuisance
actions. The court denied fees, and Morken now appeals. Finding that Morken
is entitled to fees under the statute, we reverse.
Facts and Procedural History
[2] Koltz owns a home abutting Lake George in Fremont. The property includes
an easement granting several neighbors, including Morken, ingress and egress
to the lake. After Morken purchased her home in 2017, the parameters of the
easement became a source of friction. Specifically, Koltz planted landscaping
within the easement, which Morken contended obstructed her access to the
lake. Koltz refused to remove the landscaping, so Morken had it removed in
April 2022.
[3] Koltz then filed suit against her. The complaint alleged two counts. The first,
captioned “Declaratory Judgment,” sought a declaration from the court as to
the parties’ rights regarding the easement, specifically that Morken does not
have the right to remove landscaping from the easement, as well as an
injunction preventing her from doing so. Appellant’s App. Vol. II p. 38. The
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second, captioned “Nuisance,” cited Indiana Code section 32-30-6-7 and stated
that Morken’s “activities in removing the Landscaping and threats to remove
the Landscaping . . . constitute a nuisance” and requested damages. Id. at 40.
[4] In Morken’s response, she presented several counterclaims, similarly requesting
a declaration as to the parties’ rights, an injunction against Koltz, and damages.
Both parties eventually filed for summary judgment. The trial court granted
summary judgment for Morken, finding Koltz’s landscaping obstructed the
easement and ordering him to remove any remaining landscaping. A damages
hearing was held, and Morken requested attorney’s fees under Section 32-30-6-
7. The trial court awarded no attorney’s fees, finding in part that Koltz’s
nuisance claim did not request the alleged nuisance be abated or enjoined and
therefore Section 32-30-6-7 did not apply.1
[5] Morken now appeals on the issue of attorney’s fees.
Discussion and Decision
[6] Morken challenges the trial court’s decision to deny her attorney’s fees.
Generally, a court’s decision to grant or deny an award of attorney’s fees is
reviewed for an abuse of discretion. Knowledge A-Z, Inc. v. Sentry Ins., 857
1
Morken also asked for attorney’s fees under Indiana’s frivolous-litigation statute, Ind. Code § 34-52-1-1,
which the court denied. She does not challenge this decision on appeal.
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N.E.2d 411, 423 (Ind. Ct. App. 2006), trans. denied. However, the court’s legal
conclusions are reviewed de novo. Id.[7] Morken requested attorney’s fees under Section 32-30-6-7, which provides in
part,
(a) An action to abate or enjoin a nuisance may be brought by
any person whose:
(1) property is injuriously affected; or
(2) personal enjoyment is lessened;
by the nuisance.
***
(d) A person that successfully defends an action under this
section is entitled to reasonable costs and attorney’s fees incurred
in defending the action.
“If a proper case is made, the nuisance may be enjoined or abated and damages
recovered for the nuisance.” Ind. Code § 32-30-6-8. Generally, a nuisance claim
contemplates an action designed to cease or lessen the defendant’s behavior. KB
Home Ind. Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 307 (Ind. Ct. App. 2010).
[8] Koltz contends, and the trial court found, that Morken is not entitled to fees
because Koltz’s complaint did not include a request to “abate or enjoin” a
nuisance under Section 32-30-6-7. We disagree.
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[9] When determining the categorization of a claim, we “look beyond the labels
used by [the plaintiff] and look instead to the substance and central character of
the complaint, the rights and interests involved, and the relief demanded.”
Alvarado v. Nagy, 819 N.E.2d 520, 525 (Ind. Ct. App. 2004). Here, it is clear
from Koltz’s complaint that he was requesting an abatement of an alleged
nuisance. The first count, although not explicitly referencing nuisance, asks for
a declaration that Morken cannot remove the landscaping and an injunction
prohibiting her from doing so. He then alleges that exact behavior—removing
and threatening to remove the landscaping—is a nuisance, cites Section 32-30-
6-7, and asks for damages under that statute. Altogether, this is a request to
abate or enjoin a nuisance. Therefore, under Section 32-30-6-7 Morken is
entitled to fees for successfully defending against it. We reverse and remand for
the determination of appropriate attorney’s fees.
[10] Reversed and remanded.
Mathias, J., and Pyle, J., concur.
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