Margaret J. Wilkinson v. Ivan H. Kuehn and Micki L. Kuehn (mem. dec)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Feb 03 2017, 9:27 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Krista B. Lockyear John G. Wetherill
Joseph H. Langerak, IV Wetherill Law Office
Jackson Kelly PLLC Rockport, Indiana
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Margaret J. Wilkinson, February 3, 2017
Appellant-Defendant, Court of Appeals Case No.
74A05-1608-PL-1994
v. Appeal from the Spencer Circuit
Court
Ivan H. Kuehn and Micki L. The Honorable Jon A. Dartt, Judge
Kuehn, Trial Court Cause No. 74C01-1605-
PL-169
Appellees-Plaintiffs.
Bradford, Judge.
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Case Summary
[1] In 1998, Appellant-Defendant Margaret Wilkinson sold a portion of her land to
Appellee-Plaintiffs Ivan and Micki Kuehn (“the Kuehns”). The conveyance
created a scenic easement (“the Easement”), a strip of land in the Kuehns’
parcel running along the property line with Wilkinson’s parcel, upon which
they were restricted from building. In 2007, the Kuehns indicated to Wilkinson
that they planned to build a house (“the House”), and informed her that its
intended location did not encroach on the Easement. As it happens, it did.
Wilkinson, however, never objected to the construction or had a survey
performed.
[2] In April of 2016, when the Kuehns attempted to sell the House, it was
discovered that part of the House was, in fact, on the Easement. The Kuehns
petitioned the trial court for partial relief from the Easement. Wilkinson was
granted a continuance to retain counsel and a second request for a continuance,
made the day of the evidentiary hearing, was denied. Following the hearing,
the trial court granted the Kuehns’ petition for partial relief from the Easement
and quieted title to a portion of the Easement in the Kuehns. Wilkinson
contends that the trial court erred in releasing a portion of the Easement,
abused its discretion in denying her second continuance request, and abused its
discretion in consolidating the hearing on the Kuehns’ emergency petition with
a trial on the merits. Because we disagree, we affirm the judgment of the trial
court.
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Facts and Procedural History
[3] In August of 1998, when Wilkinson conveyed a portion of her Spencer County
property to the Kuehns, the Easement was created, a 150-foot-wide strip of the
Kuehns’ parcel where it abuts Wilkinson’s. The Easement restricts the Kuehns
from constructing any “residences, buildings or improvements” on it.
Appellant’s App. Vol. II p. 13. In approximately 2007, the Kuehns built the
House. Before beginning construction, the Kuehns showed Wilkinson flags
marking the future location of the House and assured her that it would be
located outside of the Easement. Although Wilkinson commented at the time,
apparently to the Kuehns, that she would have preferred that the House be built
further from the property line, she did not otherwise object, then or later, or
have a survey performed.
[4] In April of 2016, the Kuehns agreed to sell their house to Joshua and Brittany
Pickerill. A survey performed by the Pickerills revealed that the House
encroached onto the Easement approximately eighteen feet in one place and
approximately seven feet in another. On May 11, 2016, the Kuehns petitioned
the trial court for emergency partial relief from the Easement and requested an
emergency hearing. The trial court set a hearing for May 23, 2016. On May
20, 2016, Wilkinson called the court and requested a continuance to retain
counsel, which the trial court granted, resetting the hearing for June 8, 2016.
[5] On the day of the hearing, Wilkinson requested a second continuance, which
request the trial court denied. On June 22, 2016, the parties submitted post-
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hearing briefs. On August 4, 2016, the trial court issued an order providing, in
part, as follows:
1. The Plaintiffs, Ivan H. Kuehn and Micki L. Kuehn, filed
their Petition For Emergency Partial Relief From Scenic
Easement on May 11, 2016 which the Court construes as a
declaratory judgment request to quiet title as to the claim
Plaintiffs mistakenly encroached upon the scenic easement of
Defendant by approximately seven (7) feet on the front of
Plaintiffs’ house and eighteen (18) feet on the backside of
Plaintiffs’ house.
2. Time is of the essence as Plaintiffs have entered into a
purchase agreement with Joshua and Brittany Pickerill and the
issue must be resolved immediately as it is holding up the
completion of the real estate transaction at costs to everyone
involved and the Pickerills have already moved into the property.
3. As a result, the Court set the trial in this cause on an
expedited basis, first on May 23, 2016 and then upon Defendant
Wilkinson’s request for continuance to June 8, 2016. Defendant
obtained counsel who entered an appearance and requested
another continuance after the close of Court on June 7, 2016 and
who appeared on June 8, 2016 and requested the same at trial
which the Court denied due to the exigency of the circumstances
and one prior continuance already being given to Defendant
Wilkinson.
4. The Court heard evidence and arguments on Plaintiffs’
Petition and the Court allowed the parties to submit post-hearing
briefs in support of their petitions.
5. The Court finds Defendant, Margaret Wilkinson has a
scenic easement by deed since 1998 which was and has been
encroached upon by Plaintiff’s since they built their home
adjacent to her property in 2007.
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6. The Court finds the encroachment on her scenic easement
is about seven (7) feet on the front of Plaintiffs’ residence and
about eighteen (18) feet on the backside of Plaintiffs’ residence
for a total encroachment of the scenic easement of about one-one
hundredth [sic] of an acre.
7. The Court finds the Plaintiffs encroached upon the scenic
easement unintentionally when they constructed their residence
in 2007 and both Plaintiffs and Defendant admitted no one
objected to the encroachment which appears to have been
unknown to the parties until a recent survey was conducted when
the property was sold to the new purchasers, the Pickerills.
8. There has been no objection relayed by Defendant to
Plaintiffs for approximately nine (9) years since the residence was
built but Defendant Wilkinson now claims the encroachment
affects her use and enjoyment of her property.
9. Defendant Wilkinson testified she does not object to
Plaintiffs selling the house to the Pickerills but that she objects to
the house being on the easement. She claims she never told the
Plaintiffs but she never liked the house being built so close to her
property and even though her home is built in the middle of a
wooded area, Defendant claims she can still see Plaintiffs’
residence from her property when the leaves are off which the
scenic easement was meant to protect against. The Plaintiffs
claim they cannot see her residence from their house or their
front yard.
10. Defendant Wilkinson claims her use and enjoyment of her
property is damaged by the partial encroachment of Plaintiffs’
residence on her scenic easement.
11. The Court now Finds based upon the evidence and the law
at the trial of this cause, this is a relatively easy case to decide as
the Court now ORDERS title should be quieted and a
declaratory judgment should be entered making it clear that the
Court is not going to Order the Plaintiffs’ residence (soon to be
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the Pickerills’ residence) to be torn down in part or removed as a
result of the encroachment under the unique circumstances of
this case.
12. Instead, the Court Orders there shall be a partial release of
the scenic easement as to the relatively small area of the
encroachment pursuant to the surveyor’s Plat of Survey listed in
Plaintiffs’ Exhibit #4. The Court will sign off on an Order
quieting title as to the small area of the encroachment and will
Order it is exempt from the original scenic easement in this case
which was entered in 1998. Plaintiffs’ counsel shall prepare at
the expense of Plaintiffs said Quiet Title Order and any necessary
accompanying paperwork or filing fees to effectuate this Order
which should allow the emergency portion of this case to be
resolved so the new purchasers, the Pickerills, can complete the
purchase of the real estate to them with a small portion of the
original scenic easement exempted and removed.
13. However, Plaintiffs will still owe damages to Defendant
Wilkinson for the encroachment and taking of the right protected
by the easement which will need to be determined by this Court
upon the evidence and the law. The parties’ counsel shall
contact the Court and setup a damages hearing date and time so
that matter may be fully heard and decided.
Order pp. 1-4.
[6] Wilkinson contends that the trial court’s decision extinguishing a portion of the
Easement is contrary to law and unsupported by sufficient evidence, the trial
court abused its discretion in denying her second motion for continuance, and
the trial court abused its discretion in consolidating the emergency hearing with
a full trial on the merits.
Discussion and Decision
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[7] The trial court entered findings of fact and conclusions of law pursuant to
Indiana Trial Rule 52.
When a court has made special findings of fact, an appellate
court reviews sufficiency of the evidence using a two-step
process. “First, it must determine whether the evidence supports
the trial court’s findings of fact; second, it must determine
whether those findings of fact support the trial court’s
conclusions of law.” Estate of Reasor v. Putnam County, 635
N.E.2d 153, 158 (Ind. 1994) (citation omitted). Findings will
only be set aside if they are clearly erroneous. Id. “Findings are
clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Id. (citation
omitted). A judgment is clearly erroneous if it applies the wrong
legal standard to properly found facts. State v. Van Cleave, 674
N.E.2d 1293, 1296 (Ind. 1996), reh’g granted in part, 681 N.E.2d
181 (Ind. 1997). In order to determine that a finding or
conclusion is clearly erroneous, an appellate court’s review of the
evidence must leave it with the firm conviction that a mistake has
been made. Id. at 1295.
Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). “On appellate review,
however, a trial court judgment may be affirmed if sustainable on any basis in
the record, even though not on a theory used by the trial court.” Benham v.
State, 637 N.E.2d 133, 138 (Ind. 1994).
I. Partial Extinguishment of the Easement
[8] All agree that the Kuehns built the House, in part, in the Easement. There is
also no dispute that Wilkinson failed to object to the House, either before it was
built or at any time afterwards. These two facts are sufficient to decide the
issue. Although not specifically argued by the parties or cited as a basis for the
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judgment, the undisputed evidence supports the trial court’s judgment on the
basis that Wilkinson acquiesced in the infringement of the Easement.
[9] “Acquiescence *** ‘is a release or an abandonment of one’s rights if, having
rights, he stands by and sees another dealing with his property in a manner
inconsistent with such rights, and makes no objection while the act is in
progress.’” Henning v. Neisz, 148 Ind. App. 576, 585, 268 N.E.2d 310, 316
(1971) (quoting Bd. of Comm’rs of Cass Cty. v. Plotner, 149 Ind. 116, 121, 48 N.E.
635, 637 (1897)). “Acquiescence is like permission to do the thing done, and
equity would treat as unconscionable the denial of that to which one has
assented or acquiesced.” Plotner, 149 Ind. at 121, 48 N.E. at 637.
[10] Wilkinson made no objection to the House, either before or after its
construction, despite being informed of the Kuehns’ plans beforehand.
Wilkinson does not claim that she had insufficient time to commission a survey
before construction began, and yet she did not do so. In summary, because
Wilkinson witnessed the Kuehns using the Easement in a manner inconsistent
with her rights and made no objection, it would be unconscionable to enjoin
that use now. See Henning, 148 Ind. App. at 585, 268 N.E.2d at 316 (in case
where appellee had easement for driveway over appellant’s land and moved
driveway but appellant made no objection for over five years, concluding that
appellant had acquiesced in new location of driveway). The trial court’s
judgment may be affirmed on the basis of Wilkinson’s acquiescence to the
construction of the House.
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II. Wilkinson’s Second Request for a Continuance
[11] Wilkinson contends that the trial court abused its discretion denying her second
motion for continuance, which was filed on the day of the hearing.
Regarding our standard of review of a denial of a motion for
continuance, this Court has explained, “[i]f good cause is shown
for granting the motion, denial of a continuance will be deemed
to be an abuse of discretion.” Evans v. Thomas, 976 N.E.2d 125,
127 (Ind. Ct. App. 2012) (quoting Hess v. Hess, 679 N.E.2d 153,
154 (Ind. Ct. App. 1997)), trans. denied 982 N.E.2d 298 (Ind.
2013); see also Ind. Small Claims Rule 9(A) (stating “[e]ach party
may be granted a continuance for good cause shown”). An
abuse of discretion exists “when a decision is clearly against the
logic and effect of the facts and circumstances before the court or
where the record demonstrates prejudice to the defendant from a
denial of the continuance.” Gingerich v. State, 979 N.E.2d 694,
702 (Ind. Ct. App. 2012), trans. denied 984 N.E.2d 221 (Ind.
2013).
Destination Yachts, Inc. v. Fine, 22 N.E.3d 611, 616 (Ind. Ct. App. 2014). “We
must also consider whether a delay would have prejudiced the opposing party
to an extent sufficient to justify denial of the continuance.” Id. (citation
omitted).
[12] As mentioned, the trial court denied Wilkinson’s second request for a
continuance, which was made on the day of the evidentiary hearing. Given the
relatively straightforward nature of the legal question presented by this case and
the circumstances surrounding it, Wilkinson has failed to show an abuse of
discretion. Wilkinson conceded the facts necessary to establish acquiescence,
and that, essentially, disposes of the entire case. We cannot imagine what
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advantage Wilkinson could have gained with more time. Moreover, the trial
court found that the dispute was delaying the sale of the House to the Pickerills,
causing all involved to incur additional costs. A further continuance would
only have increased the inconvenience and cost to the Pickerills and Kuehns,
not to mention Wilkinson herself. Wilkinson has failed to establish that the
trial court abused its discretion in denying her second request for a continuance.
III. Consolidation of Emergency Hearing and
Trial on the Merits
[13] Wilkinson contends that the trial court abused its discretion in consolidating the
hearing on the Kuehns’ motion for emergency relief with a trial on the merits.
The Indiana Supreme Court has stated the following with regard to “surprise
consolidations”:
Federal courts have further held that consolidation without
notice is reversible error when the effect is to deprive a party of
the right to present the case on the merits. See Eli Lilly & Co., Inc.
v. Generix Drug Sales, Inc., 460 F.2d 1096, 1106-07 (5th Cir. 1972);
Santiago v. Corporacion de Renovacion Urbana Y Vivienda de Puerto
Rico, 453 F.2d 794, 797-98 (1st Cir. 1972). But the prevailing
federal rule has long been that consolidation without notice is not
reversible error absent a showing of prejudice. See Eli Lilly, 460
F.2d at 1106 (“[S]urprise alone is not a sufficient basis for
appellate reversal; appellant must also show that the procedures
followed resulted in prejudice….”); see also Holly Sugar Corp. v.
Goshen County Coop. Beet Growers Ass’n, 725 F.2d 564, 568 (10th
Cir. 1984); Socialist Workers Party v. Ill. State Bd. of Elections, 566
F.2d 586, 587 (7th Cir. 1977).
Roberts v. Cmty. Hosps. of Ind., Inc., 897 N.E.2d 458, 465 (Ind. 2008).
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We therefore stress that any determination of prejudice following
a surprise consolidation must consider (1) the scope of the issues
in the case, (2) the opportunity that the parties have had for
discovery, (3) the degree to which continuance and discovery
requests have been honored, (4) the extent to which the parties
litigated the merits of the case at the preliminary injunction
hearing, and/or (5) the realistic ability of the trial court to render
judgment using the testimony and evidence elicited at the
preliminary injunction hearing.
Id. at 467.
[14] Given the circumstances of this case, we conclude that Wilkinson has failed to
establish prejudice and, therefore, an abuse of discretion. As mentioned, the
case turns on only two facts: the Kuehns built on the Easement and Wilkinson
acquiesced to the construction, the latter of which she admitted. In other
words, the scope of the issue is not broad and can be resolved by facts not in
dispute. It follows, then, that opportunities for further discovery were not
needed, the degree to which requests for continuances or discovery were
granted is largely immaterial, the sole issue in the case was fully litigated at the
emergency hearing, and the trial court was able to render judgment disposing of
the main issue based on evidence presented at that hearing. Even assuming,
arguendo, that Wilkinson was surprised by the trial court’s consolidation, she
has failed to establish prejudice. Wilkinson has failed to establish an abuse of
discretion in this regard.
[15] We affirm the judgment of the trial court.
Vaidik, C.J., and Brown, J., concur.
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