Enderle v. Sharman

• Decision Date: 29 June 1981
• Docket Number: No. 1-580A121,1-580A121
• Citation: 422 N.E.2d 686
• Parties: Frank J. ENDERLE and Kay M. Enderle, Appellants (Plaintiffs Below), v. John L. SHARMAN, John W. Sharman, John H. Williams, Jr.: Birch I. Williams, S. Miller Williams, As Co-Executors of the Last Will and Testament of Alice Ijams Sharman, Deceased, & Fereydoon B. Boushehry, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 686

422 N.E.2d 686

Frank J. ENDERLE and Kay M. Enderle, Appellants (Plaintiffs Below), v. John L. SHARMAN, John W. Sharman, John H. Williams, Jr Birch I. Williams, S. Miller Williams, As Co-Executors of the Last Will and Testament of Alice Ijams Sharman Deceased, & Fereydoon B. Boushehry, Appellees (Defendants Below).

No. 1-580A121.

Court of Appeals of Indiana, First District.

June 29, 1981.

Robert A. Hutchens, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for appellants.

Geoffrey G. Creason, Terre Haute, for appellee Fereydoon B. Boushehry.

Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellees, John L. Sharman, John W. Sharman, John H. Williams, Jr., Birch I. Williams, S. Miller Williams, as co-executors of the Last Will and Testament of Alice Ijams Sharman, deceased.

ROBERTSON, Judge.

Frank J. Enderle and Kay M. Enderle (Enderle) appeal the summary judgment entered in favor of the co-executors of the estate of Alice Ijams Sharman (Sharman) and Fereydoon B. Boushehry (Boushehry). This case concerns an easement which runs over four tracts of land in Vigo County. Enderle initiated this proceeding by bringing an action to quiet title. The action was referred to a special master by the agreement of parties. Sharman and Boushehry moved for summary judgment and a hearing was held before the master. The master recommended that the motion for summary judgment be granted. The trial court adopted the findings of fact and conclusions of law recommended by the master which Enderle now appeals.

Sharman and Boushehry assert that Alice Ijams Sharman died seized of certain real estate along with an easement in Country Club Road across the real estate. The land in question was originally an undivided parcel but has been subsequently divided into four tracts. ¹ Tract IV is the largest tract and it occupies the southern half of the area. Tract I lies in the northeast quadrant above Tract IV. Tract III is directly north of Tract IV and borders the southwest section of Tract I. Tract II lies north of Tract III and borders the northwest section of Tract I. Country Club Road runs in an east-west direction through Tracts II and III and winds into Tracts I and IV. Country Club Road forms the boundary between Tracts II and III such that the north half of the road lies in Tract II and the south half of the road is in Tract III. Country Club Road also forms the boundary between Tracts I and III. The half of the Road north and east of the center line is in Tract I and the south and west half of the road lies in Tract III. Tract IV is owned by the Terre Haute Country Club and their right to use the easement is not being questioned. Boushehry has filed plans to subdivide Tract I and use Country Club Road as the means of access.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

William P. Ijams and Sallie J. Ijams (Ijams) were the common owners of the property before it was severed into the four tracts. In 1916, the Ijams entered into an agreement with the adjacent landowner, Julia B. Donham, for an easement across the Donham land. (This agreement is hereinafter referred to as the Ijams-Donham agreement). The purpose of the easement was to enable the Ijams to have access to the Bono State Road, now State Highway 41. The agreement noted that the Ijams desired to use the roadway in connection with their plans to devote a portion of their land for residential development and for a Golf and Country Club.

The Ijams conveyed Tracts III and IV to the Terre Haute Country Club in 1917 while retaining their interests in Tract I and II. This agreement provided an easement for both the grantor and grantee such that both parties could use the common roadway, which is now known as Country Club Road. The agreement incorporated the Ijams-Donham agreement by reference and attached a copy of said agreement to the original deed. The agreement established that the easement was not limited to the original parties and that the easement was to be used perpetually.

In 1937, the Terre Haute Country Club conveyed Tract III to Helen F. Ijams, the wife of an heir to the Ijams property. William P. Ijams and Sallie J. Ijams both died intestate and their interests passed to their children, Jesse Warren Ijams, Alice Ijams Benbridge, and Frank Burch Ijams. Frank Burch Ijams was married to Helen F. Ijams and Alice Ijams Benbridge was married to Richard A. Benbridge. The three children held title to Tracts I and II as tenants in common. In 1929, Jesse Warren Ijams and Alice Ijams Benbridge, along with her husband, conveyed their interests in Tract II to Helen F. Ijams but reserved an easement over the Country Club Road. Jesse Warren Ijams and Alice Ijams Benbridge did not grant their interests in Tract I with this conveyance.

Alice Ijams Benbridge and Frank Burch Ijams, along with their spouses, conveyed Tract I to Alice Ijams Williams and John H. Williams. Frank Burch Ijams died and his interest in Tract II passed to his wife. Alice Ijams Williams became divorced and reconveyed her interest to herself under the name of Alice I. Sharman. Helen F. Ijams died and Alice I. Sharman was a co-executor of her estate. In 1975, Enderle purchased Tract II from the co-executors of the estate of Helen F. Ijams. Enderle subsequently purchased Tract III from the Helen F. Ijams estate. Alice I. Sharman died and Tract I remained in her estate. Boushehry has entered in agreement to purchase Tract I from the executors of the estate of Alice I. Sharman.

Boushehry claims that he has an easement on Country Club Road over Tracts II and III appurtenant to Tract I. Enderle brought this action to quiet title. Sharman and Boushehry each moved for summary judgment. The motion was based on the abstract of title and an affidavit by the abstractor. Enderle was served with copies of the affidavit but did not receive a copy of the abstract. The motions also contained certified copies of the 1917 deed from the Ijams to the Terre Haute Country Club and the deed from Jesse Warren Ijams and Alice Ijams Benbridge to Helen F. Ijams. Both sides filed briefs in support of their position. The master then made his findings of fact and conclusions of law which found in favor of Boushehry and Sharman. The trial court notified all parties of its intent to incorporate these findings and grant the motion for summary judgment on August 16, 1979. The order for summary judgment was entered on September 20, 1979.

Enderle has raised thirteen alleged errors on appeal. For purposes of clarity, we have consolidated these into seven issues. Enderle argues that the judgment was based on improper evidence, that the trial court improperly applied the law to the facts, that Sharman should be estopped from claiming an easement, that the trial court improperly found the agreement between the Donham and Ijams created an easement on the Enderle's land, that less than all of the co-tenants reserved an easement in Tract II, that the grantor could not reserve an interest in real estate in the name of a third party to the transaction, and that summary judgment was improper because of the existence of genuine issues of material facts.

Enderle argues that the judgment is based upon improper evidence because the abstract relied upon by the special master was not served upon Enderle with the motion for summary judgment. Enderle objects that the abstract itself was inadmissible and the affidavits constituted opinion evidence. Sharman argues that Ind. Rules of Procedure, Trial Rule 5(A) does not require service of the abstract. ² Ind. Rules of Procedure, Trial Rule 56(E) provides in relevant part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. (Emphasis added).

We believe the above quoted language of T.R. 56(E) is controlling because the abstract was the basis of the affidavit included with the motion for summary judgment. A copy of the abstract should have been served on Enderle. See, Lukacs v. Kluessner, (1972) 154 Ind.App. 452, 290 N.E.2d 125.

The failure to include a copy of the abstract does not mandate reversal because Enderle did not inform the master of the defective service. It is incumbent upon the party complaining of the failure to comply with the rules of service pursuant to T.R. 5 to bring such defect to the trial court's attention or compliance is waived. Jurdzy v. Liptak, (1962) 243 Ind. 1, 180 N.E.2d 530. We believe that the complaining party has a similar duty to direct the trial court's attention to a defective affidavit pursuant to T.R. 56. Failure of a party opposing summary judgment to raise an objection constitutes waiver. Ahnert v. Wildman, (1978) Ind.App., 376 N.E.2d 1182. To allow otherwise, would permit litigants to await favorable rulings prior to objecting. A party who neglects to avail himself of a valid objection to a proceeding and stands by or participates therein until an adverse result is reached must bear the consequences. Harker v. Eisenhut, (1937) 212 Ind. 67, 6 N.E.2d 936.

Enderle also argues that the trial court should not have considered the abstract because the abstract violates the best evidence rule and it constitutes hearsay. Although Enderle is correct in his analysis that the abstract could be ruled inadmissible on both of these grounds, Enderle has waived his argument by failing to raise these objections at the summary judgment hearing. Enderle asserts that the issue is not waived because there is no jury to protect and the judge is equally exposed to the evidence whether it is admitted or excluded from evidence. Enderle claims that the motion to correct errors preserves the objection. T.R. 56 closely follows the...