Luther T. Collins, Appellant-Plaintiff,
Metro Real Estate Services LLC, Appellee-Defendant.
from the Washington Circuit Court The Honorable Larry
Medlock, Judge Trial Court Cause No. 88C01-1401-PL-50
Attorney for Appellant Mark D. Johnson Allen & Johnson,
LLC Salem, Indiana.
Attorney for Appellee Robert R. Thomas Thomas Law Group. LLC
Luther Collins challenges the trial court's order finding
an easement exists across Collins's property for the
benefit of adjacent property owned by Metro Real Estate
Services, LLC ("Metro"). We affirm.
Collins raises five issues for our review, which we
consolidate and restate as:
I. whether there is an easement by grant over Collins's
II. whether there is an easement by implication over
appeal concerns two parcels of land in Washington County. On
October 24, 2003, Joseph Howell acquired the real estate
identified on the tax map as parcel 7.05 ("the servient
estate") from George Sivak, Regina Sivak, and Fred
Cambron. See Appellant's App. p. 54. On November
3, 2003, Howell acquired the adjacent real estate identified
on the tax map as parcel 2.02 ("the dominant
estate") from Patrick Alexander and Connie Alexander.
App. p. 54.
At the time
Howell purchased the [dominant estate], Howell's only
access from a public right of way to the [dominant estate]
was over the [servient estate] already owned by Howell. The
[dominant estate] had no other access to a public right of
way but for over the [servient estate] to Mount Carmel Road.
Joint Stipulated Statement of Evidence p. 3. Howell lived on
the servient estate and allowed a neighbor to cut hay on the
dominant estate; the neighbor owned property adjacent to the
dominant estate and accessed the dominant estate from his own
land, not by way of the servient estate.
Some time later, the servient estate was the subject of a
foreclosure action, and Collins purchased it at a
sheriff's sale; Collins closed on the property on March
27, 2009. Prior to the sheriff's sale of the
servient estate, Howell mortgaged the dominant estate to Old
Capitol Mortgage. In order to "facilitate" the Old
Capitol mortgage, Howell "granted an Easement to himself
over the [servient estate] to allow access to the [dominant
estate]." Id. Howell recorded the easement on
June 23, 2008. The Old Capitol mortgage was recorded on July
23, 2008. "Collins testified that neither Howell nor
anyone else used the Easement area to access the [dominant
estate] and both ends of the Easement area were fenced with
no gate." Id. Collins also testified that,
"Howell accessed the [dominant estate] on and across the
[servient estate] after Collins purchased the [servient
estate] and at no time did Collins object to Howell doing
so." Id. at 4.
The dominant estate was also the subject of a foreclosure
action, and, on May 11, 2012, Metro purchased it. Collins
objected to Metro's use of the easement over the servient
estate and, in January 2014, filed a complaint to quiet
title. The matter was tried, and the trial court entered its
judgment for Metro on July 31, 2015. Collins then filed a
motion to correct error, which the trial court denied on
September 24, 2015. Collins now appeals.
Standard of Review
We review the denial of a motion to correct error for an
abuse of discretion. Otter Creek Trading Co., Inc. v. PCM
Enviro PTY, LTD, 60 N.E.3d 217, 226 (Ind.Ct.App. 2016),
A trial court has abused its discretion only if its decision
is clearly against the logic and effect of the facts and
circumstances before the court or the reasonable inferences
therefrom. The trial court's decision comes to us cloaked
in a presumption of correctness, and the appellant has the
burden of proving that the trial court abused its discretion.
In making our determination, we may neither reweigh the
evidence nor judge the credibility of witnesses. Instead, we
look at the record to determine if: (a) the trial court
abused its judicial discretion; (b) a flagrant injustice has
been done to the appellant; or (c) a very strong case for
relief from the trial court's order has been made by the
Id. (citation omitted) (quotations omitted).
Where, as here, the trial court issues findings of fact and
conclusions thereon sua sponte, "the findings control
our review and the judgment only as to the issues those
specific findings cover. Where there are no specific
findings, a general judgment standard applies and we may
affirm on any legal theory supported by the evidence adduced
at trial."  Samples v. Wilson, 12 N.E.3d 946,
949-50 (Ind.Ct.App. 2014). We apply a two-tier standard of
review to the sua sponte findings and conclusions thereon.
Id. at 950. We first determine whether the evidence
supports the findings and then whether the findings support
the judgment. Id. We will set aside findings and
only if they are clearly erroneous, that is, when the record
contains no facts or inferences supporting them. A judgment
is clearly erroneous when a review of the record leaves us
with a firm conviction that a mistake has been made. In
conducting our review, we consider only the evidence
favorable to the judgment and all reasonable inferences
flowing therefrom. We will neither reweigh the evidence nor
assess witness credibility.
The trial court's July 31, 2015, order states:
In this case, Joseph Howell attempted to create an easement
by grant through [the servient estate] for the benefit of
[the dominant estate]. At the time of this grant in June
2008, Howell owned both pieces of property . . . . Howell
filed a properly notarized document that described the
easement and declared that it "shall run with the land
and shall extend to the grantee's heirs and
The language used in the official grant is interpreted to
mean his intent was that the easement be appurtenant. First,
the grant includes the language "run with the land"
which almost certainly implies that Howell meant ...