Marathon Petroleum Co. v. Colonial Motel Properties, Inc.

• Decision Date: 26 February 1990
• Docket Number: No. 10A01-8906CV202,10A01-8906CV202
• Citation: 550 N.E.2d 778
• Parties: MARATHON PETROLEUM COMPANY, f/k/a Marathon Oil Company and the Ohio Oil Company, Plaintiff-Appellant, v. COLONIAL MOTEL PROPERTIES, INC., and United Family Properties, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 778

550 N.E.2d 778

MARATHON PETROLEUM COMPANY, f/k/a Marathon Oil Company and the Ohio Oil Company, Plaintiff-Appellant, v. COLONIAL MOTEL PROPERTIES, INC., and United Family Properties, Inc., Defendants-Appellees.

No. 10A01-8906CV202.

Court of Appeals of Indiana First District.

Feb. 26, 1990.

David W. Crumbo, Christopher R. Fitzpatrick, Brown, Todd & Heyburn, New Albany, for plaintiff-appellant.

John R. Garry, Jr., New Albany, for defendants-appellees.

BAKER, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Marathon Petroleum Company f/k/a Marathon Oil Company and the Ohio Oil Company (Marathon), appeals a judgment awarding defendant-appellee, Colonial Motel Properties, Inc. and United Family Properties, Inc. (Colonial), title to certain real estate by adverse possession.

We affirm.

STATEMENT OF THE FACTS

This case involves a dispute over a .27 acre tract of land forming a common boundary between two contiguous tracts of land, one owned by Colonial and one owned by Marathon. On April 18, 1962, the Colonial Corporation, ¹ conveyed a .867 acre tract of land to The Ohio Oil Company, Marathon's predecessor. On November 21, 1968, The Colonial Corporation conveyed an adjacent 7.746 acre tract of land to George and Martha Perry (the Perrys). The deed for this property contained an exclusion for the bordering .867 acre tract previously conveyed to Marathon. The Perrys subsequently formed a corporation known as United Family Properties, Inc. On May 1, 1977, the Perrys transferred the 7.746 acre tract, less Marathon's .867 acre tract, to their newly formed corporation. In 1986, the Perrys formed Colonial which acquired the 7.746 acre tract from United Family Properties.

Since acquiring the 7.746 acre tract in 1968, the Perrys have operated a motel on the property. At the time of purchase, the Perrys decided to try to expand their motel business by appealing to trailer truck drivers. To accommodate the trucks, the Perrys used rock and dirt to fill in the southern portion of their property in addition to a .27 acre portion of Marathon's property (the disputed tract). The process was completed in 1970, but over time, the Perrys continued to fill in the disputed tract with rock as needed. At the time the Perrys were filling in the disputed tract, they erected a sign which read: "Free Parking for Colonial Inn Motel Guests Only. All Others $20.00 per night. Violators impounded at owner's expense! All vehicles must register." Record at 391. The disputed tract and the sign were both visible from Marathon's property. In addition, the Perrys employed a security guard to protect the trucks and to ensure that all trucks parked in the lot were properly registered with Colonial. Occasionally, truck drivers from a nearby motel would park their trucks in the lot, but were asked to leave if Colonial discovered they were not registered with the office.

Marathon did not approach Colonial regarding its use of the land until December 3, 1985. At that time, Marathon had been approached by a potential buyer and wanted Colonial to sign an agreement in exchange for its continued use of the disputed tract. On April 25, 1986, an attorney from a firm which once represented the Perrys wrote a letter to Marathon's counsel. The letter stated that Colonial was not claiming ownership of the disputed tract through adverse possession. The letter further stated that Colonial wanted to continue to use the land with Marathon's permission.

On September 1, 1987, Marathon filed a complaint for ejectment and to quiet title. Colonial responded with a counterclaim seeking to establish title by adverse possession. Marathon subsequently filed a motion for summary judgment which the trial court denied. A jury trial commenced at which Marathon moved for a directed verdict at the close of Colonial's case and at the close of all the evidence. The motion was denied and the jury found in favor of Colonial. Marathon appeals.

ISSUES

Marathon raises the following issues for our review:

I. Whether the trial court erred in denying Marathon's motion for summary judgment.

II. Whether the evidence was sufficient to establish adverse possession.

III. Whether the trial court erred in refusing to give Marathon's tendered Instruction No. 1.

IV. Whether the trial court erred in denying Marathon's motion for directed verdict.

DISCUSSION AND DECISION

Issue I: Summary Judgment

Disposition of a case by summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C). In reviewing the propriety of a summary judgment, we apply the same standard as the trial court. Ogden Estate v. Decatur County Hosp. (1987), Ind.App., 509 N.E.2d 901, trans. denied. We resolve any doubt against the proponent of the motion, taking all facts properly asserted by the party opposing the motion as true. Id. The proponent bears the burden of establishing the propriety of the motion. Kidd v. Davis (1985), Ind.App., 485 N.E.2d 156.

Marathon first contends the trial court erred in denying its motion to strike Colonial's affidavits because Colonial did not submit its affidavits prior to the summary judgment hearing as required by T.R. 56(C). At the hearing, Colonial explained to the court that it was having difficulty collecting its affidavits because its witnesses were located in several areas of the United States. In fact, Colonial received one affidavit on the morning of the hearing. Colonial requested a continuance to avoid any technical problems posed by T.R. 56 and to allow Marathon an opportunity to review the affidavits. When asked if it needed additional time to review the affidavits, Marathon responded that a continuance would not be necessary.

The timing requirements of T.R. 56 are intended to prevent surprise resulting from the last minute filing of affidavits and other materials. Trial Rule 56(F) allows for a possible continuance in the event the party opposing the motion experiences some difficulty in obtaining its affidavits. Larr v. Wolf (1983), Ind.App., 451 N.E.2d 664, trans. denied. A continuance was discussed, but Marathon assured the trial court it did not need additional time to review the affidavits. Thus, submission of the affidavits did not carry the element of surprise as contemplated by T.R. 56. Under these circumstances, the trial court properly denied Marathon's motion to strike Colonial's affidavits.

Marathon also contends Colonial's motion in opposition to its motion for summary judgment was insufficient to establish the existence of a genuine issue of material fact. Specifically, Marathon argues that Colonial's motion merely referred to the parties' prior pleadings on file with the trial court without incorporating those materials into its motion. The rule does not require such incorporation and Marathon has not provided any authority to support its proposition.

Marathon further contends that any use of Colonial's memorandum submitted in support of its motion in opposition to Marathon's motion for summary judgment was improper. Marathon is correct in pointing out that in ruling on a motion for summary judgment, a trial court may not rely on briefs submitted by the parties. Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130. Rather, the court is constrained to rely on the pleadings, depositions, answers to interrogatories, admissions on file, affidavits and testimony. Id.; T.R. 56(C). There is nothing in the record to indicate the trial court relied on documents not constituting summary judgment materials. In the absence of such evidence, we presume the trial court acted correctly. Abels v. Monroe County Educ. Ass'n (1986), Ind.App., 489 N.E.2d 533, cert. denied 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518.

In arguing the alleged deficiencies in Colonial's defense to the summary judgment motion, Marathon cites Pike County v. State ex rel Hardin (1984), Ind.App., 469 N.E.2d 1188, for the proposition that: "An adverse party to a Motion for Summary Judgment may not rest upon the mere allegations in his pleadings once the [movant] has shown himself entitled to summary judgment, but his response by affidavit or otherwise must set forth specific facts showing there is a genuine issue for trial." Appellant's Brief at 32 (our emphasis). Through its statement, Marathon itself admits that the moving party has the burden of demonstrating the propriety of summary judgment even if the opposing party does not file additional material. See Wallace v. Indiana Ins. Co. (1981), Ind.App., 428 N.E.2d 1361, 1365 ("the failure of the non-moving party to oppose the motion by counter-affidavits does not entitle the movant to summary judgment. The moving party must still demonstrate that summary judgment is appropriate."). Marathon has failed to carry its burden.

Marathon based its summary judgment motion on the contention that use of the disputed tract by Colonial's customers is insufficient as a matter of law to entitle Colonial to adverse possession. To support its position, Marathon cites this court's decision in Greenco, Inc. v. May (1987), Ind.App., 506 N.E.2d 42. In Greenco, plaintiff May owned a restaurant on a tract bordering Greenco's parking lot. Greenco customers, restaurant customers, and members of the general public routinely parked in Greenco's parking lot. May had the lot leveled and graded, but like the owners preceding her, she did not claim exclusive rights for her customers to park in the lot. This court reversed the trial court's finding of a prescriptive easement because: "Members of the general public cannot, by routine and regular use, create a prescriptive easement on behalf of a landholder; rather, it is ... the owner in fee, who must establish that she and her successors in interest have met the elements of a prescriptive easement." ²

Contrary to Marathon's assertion, the Greenco case does not preclude Colonial's claim to adverse possession as...