Albertson v. Cadwell

• Decision Date: 14 December 2022
• Docket Number: Court of Appeals Case No. 22A-PL-782
• Citation: 200 N.E.3d 948
• Parties: Kevin D. ALBERTSON and Pamela L. Albertson, Appellants-Plaintiffs, v. Richard CADWELL and Lisa Cadwell, Appellees-Defendants.
• Court: Indiana Appellate Court

200 N.E.3d 948

Kevin D. ALBERTSON and Pamela L. Albertson, Appellants-Plaintiffs,

v.Richard CADWELL and Lisa Cadwell, Appellees-Defendants.

Court of Appeals Case No. 22A-PL-782

Court of Appeals of Indiana.

Filed December 14, 2022

Attorneys for Appellants: Aaron M. Freeman, The Freeman Law Office, LLC, Indianapolis, Indiana, Stephen R. Donham, Thrasher Buschmann & Voelkel, P.C., Indianapolis, Indiana

Attorneys for Appellees: Gregory E. Steuerwald, Graham T. Youngs, Steuerwald, Witham & Youngs, LLP, Danville, Indiana

Mathias, Judge.

[1] Kevin and Pamela Albertson appeal the Hendricks Circuit Court's entry of partial summary judgment for Richard and Lisa Cadwell on the Albertsons’ complaint for declaratory judgment seeking an easement of necessity on real property owned by the Cadwells. The Albertsons raise a single issue for our review, namely, whether the trial court erred when it concluded that they are not entitled to an easement of necessity. We affirm.

Facts and Procedural History

[2] In 2018, the Albertsons bought a lot at 8585 Hickory Hill Trail in a new subdivision in Mooresville ("Albertson lot"). During the planning phase of constructing a house on that lot, the Albertsons submitted their plans, including blueprints, to the Homeowner's Association ("HOA") for approval. The HOA's Architectural Control Committee ("ACC") initially denied the plans for several listed reasons, including the Albertsons’ "[r]equest for a concrete driveway extension around the side of the home[.]" Appellants’ App. Vol. 5, p. 15. The ACC noted that

[n]o reason [for the extension] or information was provided by Pamela Albertson in her letter to support this unusual request. No current property owners in our HOA have such deviations and therefore no precedent exists to grant such an exception. Recommendation: Due to the issues of additional solid surfaces on the property, water run-off/drainage concerns, and potential increased negative water impacts on neighboring property owner(s), we should deny the request for a driveway extension beyond the garage entrance .

Id. at 15-16 (emphasis original). The ACC encouraged the Albertsons "to address and resolve the issues stated in [the] review," and it stated that it "look[ed] forward to the next opportunity to review their revised plans." Id. at 16. The Albertsons submitted a series of revised plans and finally got approval to build the house in December. The Albertsons did not install a driveway extension as originally planned.

[3] At some point, the Albertsons contacted the Cadwells, who owned approximately twenty-four acres east of and contiguous with the Albertson lot ("Cadwell property"). The Albertsons asked the Cadwells to sell them a portion of their property, and the Cadwells agreed. On June 23, 2019, the Albertsons and Cadwells executed a purchase agreement for approximately one-half of an acre of the Cadwell property ("new parcel"). The purchase agreement did not include a legal description of the new parcel but stated, "****legal description to follow, after engineering/surveying, but roughly 80’-85’ x 212’-220’ behind [the Albertson lot]." Appellants’ App. Vol. 2, p. 20. The purchase agreement also provided in relevant part as follows:

Additional Conditions:

–[The Albertsons] agree to give a 10’ utility easement to [the Cadwells]. It is to be located on the north end of [the Albertson lot].

–[The Cadwells] agree to have a neighborly agreement that will allow the [Albertsons] to have an occasional access through their remaining ground to access their property for things such as drainage issues, building a barn/treehouse, back yard maintenance, back of home repairs etc. This is not a recorded easement or recorded agreement just a friendly agreement between neighbors. [The Albertsons] will always ask [the Cadwells] before coming onto their property!

Id. (emphasis original).

[4] The Albertsons hired Mike Sheppard, a surveyor, to prepare a legal description of the new parcel. On June 30, Sheppard advised Pamela by email that he had discovered a small gap, less than three feet wide, between the Albertson lot and the Cadwell property ("gap parcel"). Sheppard stated, "It's just a big mess created by poor quality surveying and I don't see anyway to fix it without a survey[,] and even that wouldn't fix the gap issue." Appellants’ App. Vol. 5, p. 32. The Albertsons passed along that information to the Cadwells. Neither the Albertsons nor the Cadwells addressed the "gap issue" before they closed on the sale of the new parcel on August 2. Id. Soon thereafter, the Albertsons built a fence between the new parcel and the Cadwell property.

[5] In February 2020, the Albertsons submitted an application to the Hendricks County Building Department for a permit to build a pole barn on the new parcel. As part of that application, the Albertsons stated that the barn would be built "directly east of 8585 Hickory Hill Tr[ai]l" and that they would access the barn "from that property." Appellants’ App. Vol. 4, p. 85. In addition, the Cadwells had constructed a driveway across the Cadwell property that connected the Albertsons’ barn to County Road 825 East.[6] In mid-2020, the Cadwells decided to sell the Cadwell property. The Albertsons expressed an interest in buying some of the property, but in April 2021, the Cadwells found a buyer for the entire property. In May, Pamela asked the Cadwells whether they were "able to get any feedback from the new owners about letting [the Albertsons] access [their] property when they take over[.]" Appellants’ App. Vol 3, p. 207. The Cadwells responded, "Not yet," but she assured Pamela that the Albertsons would "have access all this summer and next [because the Cadwells were staying] until 10[/]1[/]2022." Id. at 208.

[7] Around that time, the Albertsons were trying to get a mortgage on the Albertson property. On July 30, Pamela texted the Cadwells the following message:

Do you know anything about the 2’ strip of ground that is between our lot & the property you sold us? The bank who did our perm[anent] financing had a mortgage survey done & it shows a 2’ strip running the length of your west boundary?

Id. at 209. On August 26, the Albertsons asked the Cadwells to execute affidavits the Albertsons had prepared stating, in relevant part, that the Albertsons owned the gap parcel. The Cadwells did not execute the affidavits.

[8] On September 20, the Albertsons filed a complaint for declaratory judgment against the Cadwells seeking an easement of necessity toward County Road 825 East over the Cadwell property on the theory that the new parcel was landlocked by virtue of the gap parcel. The Cadwells filed an answer and asserted a counterclaim alleging slander of title. The Cadwells filed a motion for judgment on the pleadings, which the trial court denied. The Cadwells executed a quitclaim deed to transfer title to the gap parcel to the Albertsons. The Cadwells then filed a motion for partial summary judgment on the easement of necessity issue.

[9] Following a hearing, the trial court entered partial summary judgment for the Cadwells.¹ The trial court found in part as follows:

The parties agree that no gap was intended[,] therefore, by law, no Easement by Necessity exists. Further, in the purchase agreement, the parties agreed [that] no easement existed. Further, [the] Albertsons have access to the parcel via [a] county road. Finally, the Cadwells delivered to [the] Albertsons a quitclaim deed to the [gap parcel], which was not accepted by the Albertsons, but none-the-less conveyed to the Albertsons certain rights.

Appellants’ App. Vol. 2, p. 10. This interlocutory appeal ensued.²

Discussion and Decision

[10] The Albertsons appeal the trial court's grant of the Cadwells’ motion for partial summary judgment. Our standard of review is well settled:

We review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to "demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the non-movant to "come forward with contrary evidence" showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted).

Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to Hughley ). Here, the trial court made findings and conclusions to support its summary judgment order, which are not binding on this Court. See Global Caravan Techs., Inc. v. Cincinnati Ins. Co. , 135 N.E.3d 584, 588 (Ind. Ct. App. 2019), trans. denied. Rather, "we may affirm a grant of summary judgment upon any theory supported by the evidence." Miller v. Danz , 36 N.E.3d 455, 456 (Ind. 2015).

[11] The Albertsons’ argument on appeal is essentially in two parts. First, they contend that the trial court "erroneously ignored Indiana easement law," which, they maintain, precludes summary judgment for the Cadwells. Appellants’ Br. at 17. Second, they contend that the trial court "erroneously evaluated the Albertsons’ claim under the Cadwells’ unpled mutual mistake and reformation theories." Id. at 18. Because the Albertsons’ first argument is dispositive of their appeal, we do not address their second argument.

[12] In William C. Haak Trust v. Wilusz , this Court explained that

[a]n easement of necessity will be

...