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Flick v. Reuter

Court of Appeals of Indiana

February 13, 2014

LARRY EDWARD FLICK, Appellant/Plaintiff,
v.
JEWELL REUTER, Appellee/Defendant

Page 373

APPEAL FROM THE LAWRENCE CIRCUIT COURT. The Honorable Andrea K. McCord, Judge. Cause No. 47C01-1107-PL-798.

ATTORNEY FOR APPELLANT: EARL R.C. SINGLETON, Bloomington, Indiana.

ATTORNEY FOR APPELLEE: PAUL J. WATTS, Watts Law Office, P.C., Spencer, Indiana.

VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.

OPINION

Page 374

VAIDIK, Chief Judge.

Case Summary

Jewell Reuter lived in a mobile home on a small portion of her family's land for more than twenty years. For simplicity, we refer to that small portion of land as Reuter's land. Reuter made a home for herself; she tended the land, gardened, and installed a septic system and water lines to access a nearby well. Unbeknownst to Reuter, her land was never deeded to her. In 2010, Larry Flick, a non-relative, purchased 2.28 acres of the family land in a foreclosure sale. When the parties learned that Flick's 2.28 acres included nearly all of Reuter's land, part of her septic system, and the well she used, a bitter quarrel over ownership of the land ensued.

While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter's land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.

Although we ultimately conclude that Reuter's adverse-possession and prescriptive-easement claims fail, we affirm the trial court's $29,487.70 judgment against Flick for damages he caused by attempting to eject Reuter without court authorization. Indiana Code section 32-30-2-1 provides that a person having a valid interest in real property and a right to the possession of that property may recover it and take possession by bringing an action against a person claiming the title or interest in the real property. Flick disregarded the statute and engaged in unconscionable self-help; he must pay for the damage he caused by taking the law into his own hands. We reverse in part, affirm in part, and remand.

Facts and Procedural History

In 1982, Thomas and Margaret Hess purchased 11.47 acres of land in Lawrence County. Five years later, in 1987, the Hesses allowed their aunt, Reuter, to live in a mobile home on a small portion--0.8 of an acre--of their land. Reuter made a home for herself; she tended the land, gardened, and installed a septic system and water lines to access a nearby well. After moving onto the land, Reuter began receiving tax statements, which she paid.[1] Reuter believed she was paying taxes for her mobile home and her land. See Appellant's App. p. 117-18.

In 1988, Thomas and Margaret carved out 2.28 acres of their land and deeded it to their son. Reuter's mobile home lies partially on the east end of those 2.28 acres. For some unknown and unfortunate reason, Reuter's land was never deeded to her. But over the next two decades, she maintained her land and mobile home. And the Hesses and their extended family

Page 375

members, including Eleathia and Gerald Parsley, who later purchased Thomas and Margaret's remaining 9.12 acres, recognized Reuter's ownership.

In 2010, Flick purchased the 2.28 acres Thomas and Margaret had deeded to their son. A survey taken shortly after Flick's purchase revealed that Reuter's mobile home (labeled " Trailer House" ), as well as her front yard, sat almost entirely on Flick's property:

(Image Omitted)

See id. at 78 (Pl.'s Ex. A). The well Reuter used was on Flick's property, and part of her septic system extended onto his property, too.

Flick and Reuter were friendly at first, but things quickly soured. Flick offered to buy Reuter's mobile home, but Reuter rejected his offer. Flick then cut off Reuter's water supply by removing the underpinning of her mobile home and severing the lines that accessed his well. He also filed a complaint in Lawrence Circuit Court alleging that Reuter had committed trespass. See id. at 15-16. Reuter filed an answer claiming ownership of her land and counterclaimed that Flick had committed trespass. Id. at 21.

When Flick did not timely respond, Reuter obtained a default judgment against him. But Flick later moved to set aside the default judgment because counsel had " inadvertently missed [Reuter's] response and neglected to prepare an answer in a timely manner." Id. at 34. At a hearing on the motion, counsel explained that Flick had a meritorious defense:

We received, my client received title to this property . . . through a foreclosure sale and attempted to negotiate with [Reuter] and those negotiations came to

Page 376

naught . . . . [W]e believe that if there's a hearing the evidence will suggest that it's virtually impossible on the merits for [Reuter] to prevail because adverse possession in common law has a number of elements . . . but there is one element that they cannot meet and I think we can present evidence to that effect and I would refer the Court to the ruling in Fraley v. Minger, [829 N.E.2d 476, 486 (Ind. 2005)]. Under no circumstances [and] at no time has [Reuter] ever paid any taxes on this property she is claiming is hers. So, and I think that serves as the basis, one of the bases for my claim that there's a meritorious defense.

Tr. p. 4-5. The trial court granted Flick's motion to set aside the default judgment. See Appellant's App. p. 39 (" [Flick's] request for a finding of excusable neglect is buttressed by his claim that he has a meritorious defense . . . as stated at the hearing of this motion." ). Reuter's request to certify the court's order for interlocutory appeal was denied. See id. at 4 (CSS entry).

Meanwhile, the relationship between Flick and Reuter continued to deteriorate. In September 2012, Flick entered Reuter's land again, this time with a large rotary mower. He destroyed her plants and installed an electric fence around Reuter's mobile home, temporarily preventing her from entering it.[2] As a result, Reuter filed a motion to amend her counterclaim, seeking attorney's fees and damages. She also sought summary judgment on her amended claims. Flick, too, filed a summary-judgment motion.

In December 2012, the court granted summary judgment for Reuter. The court concluded that Reuter had acquired title to her land by adversely possessing it and establishing a prescriptive easement. The court also concluded that Reuter had not committed trespass.

The court first set forth the elements of adverse possession--control, intent, notice, and duration--and found ...


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