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Terry Weisheit Rental Props., LLC v. Grace

Court of Appeals of Indiana

June 26, 2014

TERRY WEISHEIT RENTAL PROPERTIES, LLC, Appellant-Defendant,
v.
DAVID GRACE, LLC AND DANCE CENTRAL ACADEMY, LLC, Appellee-Plaintiff

Page 931

APPEAL FROM THE DUBOIS CIRCUIT COURT. The Honorable William E. Weikert, Judge. Cause No. 19C01-1301-PL-58.

ATTORNEY FOR APPELLANT: JOSH F. BROWN, Law Office of Josh F. Brown, LLC, Carmel, Indiana.

ATTORNEY FOR APPELLEE: STEVEN E. RIPSTRA, Ripstra Law Office, Jasper, Indiana.

KIRSCH, J., and MAY, J., concur.

Page 932

OPINION

BAILEY, Judge

Case Summary

Terry Weisheit Rental Properties, LLC (" Weisheit" ) appeals the trial court's judgment finding the existence of a prescriptive easement permitting David Grace, LLC (" David Grace" ) and its tenant, Dance Central Academy, LLC (" Dance Central" ) (collectively, " Plaintiffs" ), use of portions of land owned by Weisheit for ingress and egress from David Grace's property. David Grace and the Academy

Page 933

cross-appeal, contending that the easement should be expanded to include all parking areas owned by both David Grace and Weisheit, and should permit shared use by Weisheit and its tenants and David Grace and its tenants for ingress, egress, parking, and other activities.

Weisheit and Plaintiffs each raise issues on appeal. Weisheit contends that the trial court erred when it found the existence of a prescriptive easement. Plaintiffs argue in their cross-appeal that the trial court erred when it concluded a provision in Plaintiffs' deed was vague. We resolve this appeal with reference to the Plaintiffs' deed provision, but on a different basis than that suggested by the parties. Concluding that the trial court erred in construing the provision of the Plaintiffs' deed, we reverse.

Facts and Procedural History

At the time of the instant litigation, Weisheit was owned by Terry Weisheit (" Terry" ). David Grace's managing member was Joe Randolph (" Joe" ), and Dance Central's managing member was Carolyn Randolph (" Carolyn" ), Joe's wife (collectively, " the Randolphs" ). At the time of the instant litigation, Weisheit and David Grace owned subdivided portions of a plot of land that was held by a common owner until 1981. Commercial buildings were on the land, including a building with a firewall that ran east-to-west.

In 1981, the northern portion of the land was sold to Lawrence and Norma Steffen (individually, " Lawrence" and " Norma; " collectively, " the Steffens" ) by Jerome Kerstein and a business he operated at the time (collectively, " Kerstein" ). The property line between the two portions of the land followed the course of the firewall; plots 20 and 21a sat on the north side of the firewall, and plots 21b, 22, and 23 sat on the south side of the firewall. Each plot included paved parking and driving areas; plots 21a and 21b included driveway access to local roads.

The Steffens owned plots 20 and 21a, and operated a floor covering business in that space. Included in their deed was the following provision:

ALSO, the mutual use and maintenance of a drive whose centerline is 82 feet South of the Northwest corner of said Lot #20, the mutual use and maintenance of the parking areas, and the equal sharing of expenses of maintaining the party wall comprising the southerly side of the structure located on above-described tract and the northerly side of the structure located on grantors' tract adjoining to the South of the above-described tract.

(Appellees' App'x at 14.)

In 1985, Terry Weisheit personally purchased plots 21b, 22, and 23, and in 2003 transferred ownership of these plots to the Weisheit business. Weisheit operated a construction business, and rented portions of plots 22 and 23 to other businesses, including another construction business and a business that provided window tinting for cars and trucks, including busses and other large commercial vehicles. Weisheit's deed did not include any provisions similar to that in the Steffens' deed concerning mutual use and maintenance of the wall and common areas.

The Steffens' business received deliveries from large commercial trucks several times per week; these vehicles could not be backed into the Steffens' loading dock without crossing into plot 21b, owned by Weisheit. Weisheit and its tenants also received large delivery vehicles at times, which required use of plot 21a to access loading docks on the south side of the property. In addition, ordinary traffic required cars entering plot 21a from the local road to drive across plot 21b, and cars exiting plot 21b were required to

Page 934

drive across plot 21a to obtain access to ...


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