Heather M. (Varner) France v. Mary Sparling (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 26 2018, 6:05 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Katrina M. Lynn R.P. Fisher
Lynn and Stein, P.C. Fisher & Ireland
Wabash, Indiana Wabash, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Heather M. (Varner) France, June 26, 2018
Appellant-Defendant, Court of Appeals Case No.
85A02-1710-PL-2472
v. Appeal from the Wabash Circuit
Court
Mary Sparling, The Honorable Robert R.
Appellee-Plaintiff McCallen, III
Trial Court Cause No.
85C01-1609-PL-593
Baker, Judge.
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[1] Heather France appeals the trial court’s orders granting Mary Sparling’s motion
to dismiss France’s adverse possession counterclaim and entering judgment for
Sparling on Sparling’s trespass complaint against France. Finding that the
motion to dismiss should not have been granted and that France is entitled to
her day in court, we reverse and remand for further proceedings.
Facts
[2] In July 2012, France purchased her Wabash home, which includes a fence,
pool, permanent shed, and an addition on the back of the home. All of these
features were maintained by France’s predecessors in title and have continued
to be maintained by France. She has also paid property taxes on this parcel of
land, as did her predecessors.
[3] In May 2016, a land survey was conducted. The surveyor learned that the
fence, permanent wood shed, part of the addition to the back of the house, and
most of the pool actually sit on part of the abutting tracts of land owned by
France’s neighbors. Sparling is one of those neighbors; her forty-acre tract
abuts France’s property to the west. At some point following the survey,
Sparling demanded that France remove the fence, shed, and pool from her
property. France refused to do so.
[4] On September 8, 2016, Sparling filed a complaint alleging that France
committed trespass by having the fence, shed, and pool located on Sparling’s
property. On October 20, 2016, France filed her answer, in which she admitted
that Sparling “holds legal title of the property” on which the fence, shed, and
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pool are located. Appellant’s App. Vol. II p. 21. Together with the answer,
France filed a counterclaim, arguing that she owns the property by adverse
possession and seeking to quiet title in her favor.
[5] The trial began on August 3, 2017. Sparling presented evidence on her
complaint and rested. Her attorney then moved to dismiss France’s
counterclaim pursuant to Indiana Trial Rules 12(B)(6) and 12(H). The trial
court granted the motion and entered judgment in Sparling’s favor on the
complaint. France was not permitted to offer any evidence to support her
defense or counterclaim. She now appeals.
Discussion and Decision
[6] France first argues that the trial court erroneously dismissed her counterclaim
for adverse possession. A motion to dismiss for failure to state a claim tests the
legal sufficiency of the claim rather than the facts supporting it. E.g., Mainstreet
Prop. Group, LLC v. Pontones, 97 N.E.3d 238, 243 (Ind. Ct. App. 2018). We
apply a de novo standard of review to the trial court’s ruling, viewing the
pleadings in the light most favorable to the nonmovant, with every reasonable
inference construed in that party’s favor. Id.
[7] In this case, the trial court dismissed the adverse possession counterclaim based
on what it found to be France’s “conclusive and binding judicial admission[]”
in her answer that Sparling holds the legal title to the property. Tr. p. 19. We
cannot agree with this conclusion. Initially, we note that to grant the motion to
dismiss and enter judgment in favor of Sparling on this basis is to countenance a
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type of “gotcha” litigation that we do not condone or tolerate. E.g., Pinkowski v.
Calumet Twp. of Lake Cty., 852 N.E.2d 971, 980 (Ind. Ct. App. 2006).
[8] Moreover, while France did state that Sparling holds the legal title to the
property, that statement was paired with a counterclaim in which France
claimed to be the rightful owner of the property by virtue of adverse possession.
It is apparent, when considering the entirety of this pleading, that France
intended to admit only that Sparling is the title holder of record while
maintaining that France herself is the legal owner of the property based on
adverse possession, seeking to quiet title in her own favor. Given that we must
view the pleadings in the light most favorable to France, with every reasonable
inference construed in her favor, we believe that Sparling’s motion to dismiss
the adverse possession counterclaim should have been denied.
[9] As France’s adverse possession counterclaim survives, she is entitled to her day
in court to pursue that counterclaim and defend against Sparling’s trespass
claim. Therefore, judgment should not have been entered in Sparling’s favor
and France should have been allowed to present her evidence and make her
case. We reverse and remand for further proceedings.
[10] The judgment of the trial court is reversed and remanded for further
proceedings.
Kirsch, J., and Bailey, J., concur.
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