Ebersol v. Mishler

Decision Date17 September 2002
Docket NumberNo. 52A05-0201-CV-51.,52A05-0201-CV-51.
Citation775 N.E.2d 373
PartiesJames EBERSOL and Mary Mitchelen, Appellants-Plaintiffs, v. Glenn and Betty MISHLER, and Helen Clevenger, Appellees-Defendants.
CourtIndiana Appellate Court

Robert J. Palmer, South Bend, IN, Attorney for Appellants.

Richard L. Russell, Rebecca R. Vent, Russell, McIntyre, Hilligoss & Welke, Kokomo, IN, Attorneys for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

James Ebersol ("James") and Mary Mitchelen ("Mary") appeal the trial court's entry of summary judgment in favor of Glenn and Betty Mishler (collectively "the Mishlers") on James and Mary's complaint to set aside Commissioner's deed, quiet title, and for eviction. James and Mary present several issues for our review which we consolidate and restate as the following dispositive issues:

1. Whether genuine issues of material fact preclude summary judgment for the Mishlers.

2. Whether the trial court erred when it found that James and Mary's lawsuit was frivolous and without merit and awarded attorney's fees.

We reverse and remand for further proceedings.1

FACTS AND PROCEDURAL HISTORY

On January 5, 1948, Emma Hochstetler died testate. In her will, Hochstetler left a parcel of real property located in Miami County ("Miami property") to James and Mary and their sisters, Helen Clevenger and Carmen Lehman (now deceased), subject to a life estate in their father, Menno Ebersol ("Menno"). In February 1954, Menno and his children signed a contract purporting to sell the Miami property to Harley Mishler ("Harley"), but that sale never occurred.2 Instead, on May 27, 1954, Menno and his children filed a partition action in the Miami Circuit Court requesting the court to authorize an exchange of the Miami property for property located in Elkhart County and owned by Violet Miller ("the Miller farm"). The court approved the exchange by a Commissioner's deed. After the exchange, on May 28, 1954, Violet Miller sold the Miami property to Harley and his wife, who, in turn, sold the property to Glenn and Betty Mishler. In 1965, Menno and his children sold the Miller farm.

Menno died in 1997. Shortly before his death, James and Mary's attorney discovered documents regarding the 1954 lawsuit which led to the exchange of the Miami property for the Miller farm. James and Mary now claim that they had no knowledge of that lawsuit and that they never signed the contract for sale of the Miami property to Harley.

On January 12, 1999, James and Mary filed a complaint against the Mishlers and Clevenger to set aside the Commissioner's deed, all subsequent deeds, to quiet title, and for eviction. The Mishlers moved for summary judgment, alleging that because James and Mary either authorized or had actual or constructive knowledge of the exchange of the Miami property for the Miller farm in 1954, they cannot now complain. Following a hearing, the trial court granted the Mishlers' summary judgment motion. The court issued the following findings and conclusions:

Comes now the Court and grants the Defendants' Motion for Summary Judgment. Plaintiffs allege they were not actually the Plaintiffs in a 1954 Miami Circuit Court Partition action under Cause No. 23998. They allege that action was a fraud perpetrated by their father, Menno Ebersol, and that they were never notified of the action. The real estate that was the subject matter of the partition action was willed to Plaintiffs by Emma Hostetler [sic] who died in 1948. Emma Hostetler's will was duly probated and gave her "real estate" to the Plaintiffs subject to a life estate in their father, Menno Ebersol. Plaintiffs further signed a Contract for Sale of Real Estate (Exhibit "G" of Defendant's Motion for Summary Judgment) selling the disputed property to Harley and Ruth Mischler [sic] in 1954, although now they disavow any knowledge of the contract. Despite inheriting the property from their grandmother, Emma Hostetler, Plaintiffs admit they "have not set foot on the real estate . . . since May 1, 1954."
It is clear to the Court that Plaintiffs knew they had [a] possessory interest in the subject real estate as early as 1948 and no genuine issue of fact remains as to their knowledge of their possession [sic] interest. As such, the Court finds in favor of the Defendants on their affirmative defenses of laches, estoppel and adverse possession.

The Court further finds in favor of the Defendants on their Counter-Claim finding Plaintiffs' complaint to be frivolous and without merit. The Court now sets this matter for further hearing to determine the amount of attorney fees to be applied as a judgment. The Court sets this hearing for the 27th day of November, 2001 at 9:00 a.m.

All of which is ordered this 26th day of October, 2001.

(Emphasis added). James and Mary now appeal.

DISCUSSION AND DECISION
Standard of Review

In determining the propriety of summary judgment, we apply the same standard as the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind.Ct.App.2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Id. Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Bradley v. Hall, 720 N.E.2d 747, 750 (Ind.Ct.App. 1999). This is true even if the court believes the non-moving party will not succeed at trial. Id. The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc. 727 N.E.2d 790, 792 (Ind. Ct.App.2000).

We note that the trial court made findings and conclusions in support of its summary judgment entry. 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. See Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1116 (Ind.Ct.App. 2000),

trans. denied. If the trial court's summary judgment can be sustained on any theory or basis in the record, we must affirm. Id.

Issue One: Questions of Material Fact

James and Mary contend that the trial court erred when it found, as a matter of law, that their claim against the Mishlers is barred by the doctrines of laches, estoppel, and adverse possession. Specifically, James and Mary contend that questions of fact exist regarding whether they authorized or had actual knowledge of the transfer of the Miami property to Violet Miller in 1954. We must agree.

Laches is comprised of three elements: 1) inexcusable delay in asserting a known right; 2) an implied waiver arising from knowing acquiescence in existing conditions; and 3) a change in circumstances causing prejudice to the adverse party. Shafer v. Lambie, 667 N.E.2d 226, 231 (Ind.Ct.App.1996). A mere lapse in time is insufficient; unreasonable delay which causes prejudice or injury is necessary. Id. The issue of laches is viewed as a question of fact to be resolved by the trial court in the exercise of its sound discretion from the facts and circumstances of each case. Id.

An equitable estoppel requires a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice. Erie-Haven, Inc. v. First Church of Christ, 155 Ind.App. 283, 292 N.E.2d 837, 842 (1973) (quoting Midland Bldg. Indus. v. Oldenkamp, 122 Ind. App. 347, 103 N.E.2d 451, 453 (1952)). Equitable estoppel may arise from silence, or acquiescence, as well as from positive conduct. Id. "Acquiescence is a release or an abandonment of one's rights if, having rights, he stands by and sees another dealing with his property, in a manner inconsistent with such rights, and makes no objection while the act is in progress." Id. (quoting Board of Comm'rs of Cass County v. Plotner, 149 Ind. 116, 121, 48 N.E. 635 (1897)).

To acquire title by adverse possession, the claimant's possession must be: actual, visible, open, notorious, exclusive, under a claim of ownership, hostile, and continuous for at least the statutory period of limitation. Piel v. Dewitt, 170 Ind.App. 63, 351 N.E.2d 48, 53 (1976). The general rule in Indiana is that the statute of limitations does not run against a remainderman until the termination of the intervening life estate. Id. Indiana Code Section 34-11-2-5 bars actions to recover the possession of real estate not commenced within five years after the sale is confirmed. However, a remainderman has no right to possess the land until the life estate ends. Id. Without an immediate right of possession, a remainderman is incapable of maintaining an ejectment action to recover the possession of real estate. Id. Thus, the rationale for the rule emerges from the unfairness inherent in impressing a limitation period for the recovery of real estate upon a person who lacks a remedy for its recovery. Id.

First, we conclude that the trial court erred when it found that James and Mary signed the 1954 contract purporting to sell the subject property to Harley. James and Mary designated evidence in opposition to summary judgment establishing a question of fact on that issue. Second, the trial court also erred when it found that James and Mary "knew they had [a] possessory interest in the subject real estate as early as 1948." As we have already noted, a remainderman has no right of possession until the life estate ends. See Piel, 351 N.E.2d at 53

. Thus, James and Mary could not have had a possessory interest in the Miami property until Menno died in 1997.

As a general rule, the doctrines of laches, estoppel, and adverse possession can be asserted only against those who have a...

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