Altevogt v. Brand
| Decision Date | 15 March 2012 |
| Docket Number | No. 44A03–1106–MI–237.,44A03–1106–MI–237. |
| Citation | 963 N.E.2d 1146 |
| Parties | Brad A. ALTEVOGT, et al., Appellants, v. Dennis L. BRAND, et al., Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Michael H. Michmerhuizen, Patrick G. Murphy, Barrett & McNagny, L.L.P., Fort Wayne, IN, Attorneys for Appellants.
Chad L. Rayle, Michael M. Yoder, Yoder & Kraus, P.C., Fort Wayne, IN, Ronald Glen Thomas, Angola, IN, Attorneys for Appellees.
Several owners of lots in the Long Lake Park subdivision in LaGrange County (“the Plaintiffs”) 1 filed a complaint in LaGrange Circuit Court seeking to quiet title to a portion of land that is situated between the Plaintiffs' homes and the shore of Big Long Lake. The Defendants,2 who are all owners of back lots in the subdivision, filed a motion for summary judgment which the trial court granted. The Plaintiffs appeal and argue that the trial court erred when it entered summary judgment denying the Plaintiffs' claims.
We affirm.
The parties in this case all own lots in the Long Lake Park subdivision in LaGrange County. This subdivision was platted in 1932 by Lee Hartzell, who owned land adjacent to Big Long Lake. On June 12, 1932, Hartzell recorded the plat for Long Lake Park (“the Hartzell Plat”). The Hartzell Plat contained certain provisions concerning the use of Long Lake Park, specifically:
Each lot owner shall be entitled to an easement on the Lake Shore six feet in width for a boat landing which easement shall be in front of the block in which the lot is located and the easement shall bear the same number as the lot it is for and the easements shall be numbered consecutively from North to South.
The Hartzell Plat set out Long Lake Park as a series of blocks each comprised of several lots. None of the platted lots extend to the shore of Big Long Lake. Instead, located between the blocks and the lakeshore is a strip of land referred to on the Hartzell Plat as “the Indian Trail.” There are also various drives located between the blocks. The Hartzell Plat provides that “all drives, alleys, and walks are for the use of the owners of the lots and their guests[.]” 3 Id.
The Plaintiffs in this case are all front-lot owners, whose lots are situated near the lake with only the Indian Trail separating their lots from the lakeshore. The Defendants are all back-lot owners who claim that their access to the lake would be impaired if the Plaintiffs prevailed in their claim of adverse possession of those parts of the Indian Trail in front of their respective lots and who claim the right to use the Indian Trail under the language of the Hartzell Plat. A map of the relevant portion of Long Lake Park is set forth below: 4
Image 1 (5.03" X 4.72") Available for Offline Print According to the language of the Plat, each lot owner had a six-foot easement in front of their respective block, running north-to-south. For example, in Block 7, the owner of Lot 65 had a six-foot easement starting at the lakeshore on the northern end of Block 7, with each subsequent lot owner having another six-foot easement directly to the south of the preceding easement. Despite these easements, over the intervening years, the front-lot owners built boat docks or piers on the shoreline immediately in front of their lots, and the back-lot owners typically built their boat docks on the areas of the shoreline that were located near the ends of the drives separating the blocks. The front-lot owners also built seawalls to prevent erosion to that part of the Indian Trail that was located directly between their lots and the lakeshore and cared for this area as part of their respective yards.5
On November 18, 2008, the Plaintiffs, all of whom are front-lot owners, filed a complaint against the Defendant back-lot owners seeking to quiet title to those portions of the Indian Trail located between the front lots and Big Long Lake. On September 15, 2010, those Plaintiffs represented by attorney Patricia Martin 6 and those represented by Barrett & McNagny, LLP 7 filed a third amended complaint. The Defendants subsequently filed their answer to this amended complaint. On February 1, 2011, the Barrett & McNagny Plaintiffs filed a motion for summary judgment. The Defendants also filed a motion for summary judgment on that date. After various filings by both parties, the trial court eventually held a hearing on the pending motions on April 12, 2011. On May 6, 2011, the trial court entered summary judgment in favor of the Defendants and against the Plaintiffs. The Barrett & McNagny Plaintiffs now appeal. Additional facts will be provided as necessary.
Our standard for reviewing a trial court's order granting a motion for summary judgment is well settled. “A trial court should grant a motion for summary judgment only when the evidence shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Kumar v. Bay Bridge, LLC, 903 N.E.2d 114, 115 (Ind.Ct.App.2009) (quoting Ind. Trial Rule 56(C)). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Id.
“An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind.2010). But a de novo standard of review applies where the dispute is one of law rather than fact. Id. We examine only those materials designated to the trial court on the motion for summary judgment. Kumar, 903 N.E.2d at 115. Our standard of review is not altered by the fact that the parties filed cross motions for summary judgment. Id.
Here, the trial court made findings of fact and conclusions of law in support of its entry of summary judgment. Although we are not bound by the trial court's findings and conclusions, they aid our review by providing reasons for the trial court's decision. Id. We must affirm the trial court's entry of summary judgment if it can be sustained on any theory or basis in the record. Id.
The Plaintiffs first claim that the Indian Trail was dedicated as a public easement subject to the “underlying fee ownership of each Lakefront [sic] Owner.” Appellant's Br. at 27. Simply put, the Plaintiffs claim that the Indian Trail was dedicated as a public easement adjacent to the lake and that their fee ownership should therefore extend to the lakeshore. The trial court did not consider this argument because it was not raised in the pleadings. The Plaintiffs do not directly deny that this claim was not presented in their complaint. Instead, they claim that their third amended complaint sought to quiet title to the Indian Trail and that this theory supports their claim of title. The Plaintiffs, however, fail to cite any support for this argument, nor do they develop this argument any further. We therefore consider this argument waived.8 Waiver notwithstanding, the Plaintiffs' argument fails.
The Plaintiffs note that the dedication of trails, alleys, drives, and roads for public use can be accomplished by common law dedication or statutory dedication. See Poznic v. Porter County Dev. Corp., 779 N.E.2d 1185, 1192 (Ind.Ct.App.2002) (). The Plaintiffs concede that there is insufficient evidence of Hartzell's intent to establish common-law dedication, but argue that there is evidence sufficient to establish a statutory dedication. We disagree. The Hartzell Plat did not contain any dedication for public use. Instead, it clearly states that “all drives, alleys, and walks are for the use of the owners of the lots and their guests [.]” Appellant's App. p. 1279. Even the statute the Plaintiffs claim was in effect at the time the Hartzell Plat was recorded provided that a plat was required to show “the proper public grounds, streets and alleys properly marked[.]” Burns Code Ann. § 8900 (1914).
The facts established are also distinguishable from those cases cited by the Plaintiffs where a plat failed to expressly dedicate the rights-of-way depicted on the plat. Here, the Hartzell Plat expressly stated the contrary, i.e., that the drives, alleys, and walks were not for public use, but for the use of the lot owners and their guests. Accordingly, we cannot say that the trial court erred in failing to accept the Plaintiffs' argument that there was a public dedication of the Indian Trail.
The Plaintiffs next assert title in portions of the Indian Trail by way of adverse possession. As we recently explained in Roberts v. Feitz, 933 N.E.2d 466, 478 (Ind.Ct.App.2010), “[t]he traditional common law elements of adverse possession required the claimant to prove the possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for a statutory period of time.” Id. at 478 (citing Fraley v. Minger, 829 N.E.2d 476, 485 (Ind.2005)). In Fraley, however, our supreme court rephrased the elements of adverse possession, stating that “the doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration.” 829 N.E.2d at 486. These elements were defined in Fraley as follows:
(1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all...
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