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Frazee v. Skees

Court of Appeals of Indiana

April 21, 2015

Pamela Frazee, Appellant-Plaintiff,
v.
Douglas J. Skees and Angela D. Skees, Appellees-Defendants

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[Copyrighted Material Omitted]

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Appeal from the Tippecanoe Superior Court. The Honorable Gregory J. Donat, Judge. Cause No. 79D04-1205-PL-18.

ATTORNEY FOR APPELLANT: John J. Schwarz, II, Schwarz Law Office, PC, Hudson, Indiana.

ATTORNEYS FOR APPELLEES: Eric H. Burns, Reid D. Murtaugh, Withered Burns, LLP Lafayette, Indiana.

Najam, Judge. Mathias, J., and Bradford, J., concur.

OPINION

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Najam, Judge.

Statement of the Case

[¶1] Pamela Frazee filed a complaint against Douglas and Angela Skees (" the Skeeses" ), which arose out of a dispute regarding a subsurface drain running through the parties' properties in Tippecanoe County. In her complaint, Frazee

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alleged property damage, nuisance, and criminal trespass. The Skeeses filed a counterclaim alleging negligence, nuisance, criminal trespass, and invasion of privacy. All parties sought damages pursuant to the Crime Victim's Relief Act, Indiana Code Section 34-24-3-1. Following a bench trial, the trial court found in favor of Frazee on her nuisance claim and in favor of the Skeeses on their trespass claim. The trial court awarded attorney's fees to both parties, and it awarded treble damages to the Skeeses. Frazee now appeals, and the Skeeses cross-appeal. Collectively, they present several issues for our review, which we revise and restate as follows:

1. Whether the trial court erred when it concluded that the subsurface drain was a mutual drain.
2. Whether the trial court erred when it concluded that the Skeeses did not abandon their rights in the subsurface, mutual drain.
3. Whether the trial court erred when it concluded that the Skeeses did not trespass when they connected a perimeter drain to the subsurface drain.
4. Whether the trial court erred when it concluded that Frazee was solely responsible for the costs of repairs made to a broken portion of the subsurface drain that ran through her property.
5. Whether the trial court erred when it determined that Frazee committed a criminal trespass and when it awarded treble damages and attorney's fees to the Skeeses pursuant to the Crime Victim's Relief Act.
6. Whether the trial court abused its discretion when it awarded attorney's fees to Frazee.

[¶2] We affirm the trial court's conclusions that the subsurface drain was a mutual drain and that the Skeeses did not abandon the drain. Thus, we also affirm its judgment that the Skeeses did not trespass when they connected their perimeter drain to the subsurface drain. Further, we affirm the court's conclusion that Frazee was solely responsible for the costs of the repairs that she had made to the portion of the subsurface drain that ran through her property. However, we reverse the trial court's judgment that Frazee committed a criminal trespass, and, therefore, we also reverse the award of treble damages and attorney's fees to the Skeeses. Finally, we reverse the trial court's award of attorney's fees to Frazee.

Facts and Procedural History

[¶3] Frazee and the Skeeses are neighbors with a contentious relationship. Their properties border the southbound side of U.S. Highway 52 (" Highway 52" ) in Tippecanoe County. The Skeeses' property (" the Skees Parcel" ), which they acquired in 1997, sits north of Frazee's property (" the Frazee Parcel" ), which she purchased in 2006. A portion of the Frazee Parcel extends north and west, parallel to the Skees Parcel. A strip of land owned by Tippecanoe County (" the County Parcel" ) divides the eastern boundary of this part of the Frazee Parcel and the western boundary of the Skees Parcel. The Skees Parcel has a higher elevation than the County Parcel, and the County Parcel has a higher elevation than the Frazee Parcel. All properties sit atop a high water table, and, in 2011, when the current dispute arose, the area had received more rain than normal. Surface water naturally drains westward along a natural swale from the Skees Parcel at Highway 52, across the County Parcel and towards the Frazee Parcel.

[¶4] Approximately seventy to eighty years before the current dispute, a clay tile drain (" the subsurface drain" or " the drain" ) was placed under the property now owned by the Skeeses, the County, and

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Frazee. The subsurface drain began, as four-inch pipe, on the Skees Parcel at Highway 52, and it traveled along the path of the swale. Near the point where the Skees Parcel intersected the County Parcel, the subsurface drain expanded from a four-inch clay tile drain to a six-inch clay tile drain. The six-inch clay tile drain then traveled through the Frazee Parcel and, eventually, emptied into a nearby stream.

[¶5] At some point,[1] Frazee installed an open-loop geothermal system on her property, which discharged its waste water into the six-inch subsurface drain. During the installation of the geothermal system, Frazee discovered that a portion of the subsurface drain under her property had been crushed by tree roots and, as a result, did not function properly. Thus, to properly complete the geothermal system, Frazee had to repair the subsurface drain. Her repair replaced the broken section of the clay tile drain with new, six-inch plastic drain pipe, which connected at a blowout.

[¶6] Subsequently, in March 2011, Frazee began construction on the second of two barns on her property, both of which now sit southwest of the County Parcel and west of the Skeeses' home. The second barn sits directly atop the natural swale. When Frazee began construction on the second barn, on March 11, 2011, she revisited the blowout to check the functionality of the subsurface drain. When she did, she found free-flowing toilet paper and sewage in the subsurface drain. Frazee called the Tippecanoe County Health Department (" Health Department" ) to report her findings.

[¶7] Ron Noles, the Chief Environmentalist at the Health Department, received Frazee's call. Noles went to the Frazee Parcel, and, after he had viewed the blowout to confirm the presence of sewage in the subsurface drain, Noles searched the County's records for the septic systems of the homes immediately adjacent to the Frazee Parcel. Noles discovered Frazee's record but could not find records for the Skeeses' home or for another of Frazee's neighbors, the Dearths.[2] Consequently, Noles ordered dye tests of those septic systems, which involves the flushing of florescent green dye down a toilet within a home. Noles conducted the dye test at the Skeeses' home on March 22, and the dye appeared at the blowout on the Frazee Parcel that same day, indicating a positive test for sewage from the Skeeses' home.

[¶8] The Health Department confirmed that the Skeeses' system was inadequate, which had resulted in the discharge of sewage onto the Frazee Parcel.[3] At the time of the dye test, the Skeeses' home operated on its original septic system, which lacked an absorption field and was deemed to be too small. The Skeeses' home was also found to be improperly plumbed. The sewage from only one bathroom emptied into the old septic system, but the remainder of the home emptied into its basement floor drain, a four-inch clay tile drain. The basement floor drain, in turn, connected to the subsurface drain.

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The Skeeses had inspected their septic system when they purchased their home, but that inspection did not reveal any problems. Before the dye test, the Skeeses did not know about the sewage discharging into the subsurface drain and onto the Frazee Parcel.

[¶9] As a result of the investigation, the Health Department issued abatement orders to the Skeeses and the Dearths, which directed them to fix their septic systems in order to stop the discharge of sewage onto Frazee's land.[4] The Health Department issued its order to the Skeeses on March 24, and it demanded the installation of a compliant septic system by April 25. However, due to the large amounts of rain the area had received in early 2011, the Skeeses were unable to install a new septic system, which should be placed in dry soil, by April 25. In the interim, the construction of Frazee's second barn continued, and, during that process, an auger struck the subsurface drain, which caused sewage to discharge onto the construction site. Rather than repair the subsurface drain along its original line, Frazee rerouted the drain around the north side of the barn and swale.

[¶10] To remediate the problems with their septic system, the Skeeses first re-plumbed their home to route all waste water to the new septic system, once installed. The Skeeses, however, kept their furnace's condensation pipe connected to the basement floor drain. Next, when the rain relented in July, the Skeeses installed a new septic system with a finger absorption field. At the same time, the Skeeses' contractor dug a hole at the end of the septic's finger system, near the County Parcel, and severed the Skeeses' connection to the subsurface drain. The contractor placed a boulder inside of the hole over the now-severed connection to prevent a future reconnection but left the hole open and the boulder exposed to allow ground water to continue to flow into the hole and, ultimately, leach into the subsurface drain through its clay. With the connection severed, the hole would fill with water and eventually overflow into the swale.

[¶11] On July 27, the Health Department found that the Skeeses' new septic system made their home legally compliant. Initially, the Skeeses' new system worked properly and Frazee had no more issues. However, the disconnection of the Skees Parcel from the subsurface drain, in conjunction with the accumulation of rain, made the already high water table rise higher, which interfered with the proper functioning of the new septic system. For the septic system to function correctly, the water table had to be lowered. Consequently, to lower the water table, the Skeeses placed a submersible sump pump into the hole near the County Parcel, where the contractor had severed the Skeeses' connection to the subsurface drain.

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[¶12] Subsequently,[5] on November 28, Frazee discovered flooding in one of her barns. Frazee followed the water flowing into her barn to the hole on the Skees Parcel and the sump pump. She called Noles but could not reach him, and so she called the police. Someone with the police department called Douglas Skees, who explained the situation, and the police allowed Douglas to continue pumping. Frazee disagreed with the police, and she entered onto the Skees Parcel and unplugged the pump.

[¶13] When Douglas came home from work that afternoon, he found the pump unplugged, and he plugged it back in. But, that night while the Skeeses slept, Frazee again entered onto their property and unplugged the pump a second time. As a result, the water table rose, which caused water to back up through the basement floor drain inside the Skeeses' house and flood the Skeeses' basement with eight to ten inches of water.[6] Several of the Skeeses' household items were damaged by the water. Shortly thereafter, the Skeeses resumed pumping from the hole. The Skeeses also had to install a pump in their basement to remove the standing water.

[¶14] Noles returned to the Skees Parcel twice in December. On December 6, Noles went to the Skees Parcel to determine whether they were pumping sewage effluent from the hole. To do so, Noles placed dye directly into the septic system via its outside cleanout. The dye appeared in the hole on December 15, which indicated that sewage was still traveling to the Frazee Parcel by means of the swale into which the water from the hole was being pumped. As a result, the Skeeses were directed to stop pumping from the hole. They did so but, nevertheless, the ground water containing the septic effluent would eventually fill the hole, run over into the swale, and make its way to the Frazee Parcel. Thus, Noles determined that more work was needed to remediate the Skeeses' sewage problem. As a result, the Health Department filed a lawsuit seeking to enjoin the Skeeses' discharge of sewage onto the Frazee Parcel.

[¶15] In the interim, on December 9, Noles met with Douglas Skees and an excavator, Mark Remley, at the Skees Parcel. Noles observed ponding in the hole, which would then overflow into the swale and discharge offsite onto the Frazee Parcel. In an effort to find a pipe that might be feeding the now-disconnected subsurface drain, Remley dug two more holes on the Skees Parcel. He dug the first that day near Highway 52 but did not find any drain pipe. However, a hole dug near the Skeeses' home revealed the clay tile drain that led to the basement floor drain. The basement floor drain connected to the otherwise-severed subsurface drain.

[¶16] To ensure compliance and to find a solution to the Skeeses' septic problem, Noles involved the State Board of Health and a soil consultation firm. The consultation firm determined that the area's

soil has a seasonal high water table at or above the surface during wet periods.
Because of the wetness characteristics, a perimeter or curtain drain is needed to help make this [septic] system function properly during wet periods. Surface water should also be directed around this system to keep water from flowing across it.

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Frazee Exh. 58. Accordingly, pursuant to a Stipulation of Agreement between the Health Department and the Skeeses, the Skeeses agreed to install a perimeter drain around the septic system's absorption field, which would " significantly reduce migration of ground water into the real estate's septic absorption field . . . [and] enhance the functioning of the septic system." Appellees' App. 4-5. The perimeter drain would then connect to the portion of the subsurface drain located on the County Parcel, thereby reestablishing a connection between the Skeeses' drainage and the subsurface drain. The perimeter drain would collect the same amount of water as the subsurface drain originally had before it had been disconnected. Therefore, the perimeter drain would not increase the downstream burden placed on the subsurface drain.

[¶17] On January 11, 2012, with the Indiana State Department of Health, the Tippecanoe County Sheriff's Department, Noles, the Skeeses' attorneys, and Frazee present, the Skeeses installed a four-inch perimeter drain around their septic system's absorption field. However, when they attempted to tie into the subsurface drain on the County Parcel, Frazee sat down in the way of the backhoe and blocked access to the necessary dig site for two hours. The contractor continued to bill the Skeeses for the time that work was delayed. The Sheriff warned Frazee that she would be arrested for trespass if she continued to block access to the subsurface drain after a certain time, and she moved only when that time expired. When work resumed, at the direction of the Health Department, the Skeeses severed their basement's connection to the subsurface drain. Further, at two locations, they capped with concrete the portion of the subsurface drain that ran underneath the new septic system.

[¶18] After the Skeeses' connected the perimeter drain to the subsurface drain, Frazee claimed that her barns flooded more often, and, at some later time, she installed a curtain drain on the barns' eastern side, near the County Parcel's property line, and she also replaced the remainder of the original subsurface drain west of her barns to its outlet at a nearby creek with six-inch plastic drain pipe.[7]

[¶19] On March 29, Frazee filed an action in Tippecanoe Superior Court. Frazee filed an amended complaint on May 29. In her amended complaint, Frazee alleged a nuisance claim based on the discharge of sewage onto the Frazee Parcel. And, based on the connection of the perimeter drain to the subsurface drain, Frazee alleged that the Skeeses had committed criminal trespass, and she sought damages under the Crime Victim's Relief Act. In particular, Frazee alleged that the connection of the perimeter drain to the subsurface drain caused the subsurface drain to collect more water than it originally captured from the Skees Parcel, which resulted in a greater downstream burden on the drain and more frequent flooding of her barns.[8]

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[¶20] The Skeeses filed an answer and counterclaim on June 29, which alleged negligence, nuisance, criminal trespass, and invasion of privacy, and they also sought damages under the Crime Victim's Relief Act. However, at trial, the Skeeses pursued only their allegation of criminal trespass and damages under the Crime Victim's Relief Act. The Skeeses alleged that Frazee had committed criminal trespass when she entered onto their property to disconnect the sump pump the second time, which resulted in the flooding of their home.[9]

[¶21] The trial court held a two-day bench trial on February 27 and March 18, 2014. In relevant part, the trial court entered the following findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A):

1. [Frazee], [the Skeeses], and Tippecanoe County (County) each own parcels of real estate in Tippecanoe County[,] which are located generally to the south and [west] of U.S. 52 South.
* * *
9. Many years prior to the parties' purchase[s of their respective parcels], the Skees Parcel, the County Parcel, and [the] Frazee Parcel had all been served by a single[,] four[-]inch diameter[,] clay subsurface drain[] . . . starting at or near U.S. 52 at the northeast and draining all three (3) parcels toward the southwest into the open drainage ditch located offsite of all (3) parcels.
10. The drain[] . . . was a mutual drain when originally installed and at all times thereafter.
* * *
12. Frazee was responsible to repair any breaks in the mutual ...

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