Gregory v. Koltz

• Decision Date: 31 January 2023
• Docket Number: 22A-MI-1106
• Parties: Ruth Anne Gregory, Jane Marie Meives, Kay E. Morken and Phillip S. Sprague, Appellants-Intervenors, v. Eileen V. Koltz, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Ruth Anne Gregory, Jane Marie Meives, Kay E. Morken and Phillip S. Sprague, Appellants-Intervenors, v. Eileen V. Koltz, Appellee-Plaintiff.

No. 22A-MI-1106

Court of Appeals of Indiana

January 31, 2023

Appeal from the Steuben Circuit Court The Honorable Allen Wheat Judge The Honorable James W. Burns, Magistrate Trial Court Cause No. 76C01-1404-MI-134

Attorneys for Appellant

Jason M. Kuchmay

Fort Wayne, Indiana

James A. Federoff

Carson, LLP

Fort Wayne, Indiana

Attorneys for Appellee

Margaret L. Smith

Darren A. Craig

Allison J. Smith

Frost Brown Todd, LLC

Indianapolis, Indiana

RILEY JUDGE.

STATEMENT OF THE CASE

[¶1] Appellants-Intervenors, Ruth Ann Gregory (Gregory), Jane Marie Meives (Meives), Kay E. Morken (Morken), and Phillip S. Sprague (Sprague) (collectively, Appellants), appeal the trial court's Order, denying Appellants' motion to intervene and motion to set aside default judgment issued in favor of Appellee-Plaintiff, Eileen V. Koltz, Trustee of the Eileen V. Koltz Trust, UTD April 7, 1987 (Koltz).

[¶2] We affirm.

ISSUES

[¶3] Appellants present this court with two issues on appeal, which we restate as:

(1)Whether the trial court abused its discretion when it denied Appellants' motion to intervene in a quiet-title action that had resulted in a default judgment seven years earlier; and

(2)Whether the trial court abused its discretion when it denied Appellants' motion to set aside the default judgment.

[¶4] Koltz presents this court with the following issue: Whether Appellants' appeal should be dismissed as untimely because Appellants did not file their notice of appeal within thirty days of the trial court's Order and failed to seek an extension of the deadline to file.

FACTS AND PROCEDURAL HISTORY

[¶5] In 1922, Bert Sprague (Bert) and Frank Gilbert (Gilbert) purchased real estate in an unrecorded plat of Lake George Beach in Fremont, Indiana, to subdivide and resell. Over the years, subdivided sections of this real estate were sold to various individuals. In 1999, Koltz purchased a section of the lake front real estate to use as her primary residence with an easement immediately to the west of this real estate.

[¶6] Two conveyances appear to have created this easement, in its entirety or at least sections of it. The first section, referred to as Tracts B, C, and D, was created by Steuben County Deed Record 116, dated March 27, 1957, with Russel and Mildred Sprague, husband and wife, and Ruth and Harold Smits, husband and wife, as grantors to "the owners of lake lots on or near Lake George" and recorded April 20, 1957. (Appellants' App. Vol. II, p. 9). The second section of the easement was created by a transfer of the West one-half of Lot 70(A) Steuben County Deed Record 134, dated October 7, 1967, and recorded October 10, 1967, with Lester and Patricia Zintsmaster as grantors to "the public." (Appellants' App. Vol. II, p. 9).

[¶7] On December 9, 2004, Koltz acquired ownership of a portion of the easement, located in Tracts A and B owned by Bert's heirs, Jack and Madola Sprague, by quitclaim deed. The quitclaim deed was recorded on December 30, 2004. Other fractional shares of ownership in either Tracts B, C, and D, or the West one-half of Lot 70A were transferred by testate or intestate succession, none specifically referencing the property encumbered by the easement. "It appears that at some point all of this real estate was dropped from the Steuben County tax rolls and seems to have laid fallow for well over [sixty] years except for its use as an easement." (Appellant's App. Vol II, p. 9). Prior to April 2014, it appeared that various fractional shares of ownership in Tracts B, C, and D, and the West one-half of Lot 70A existed as follows: Sprague held a 5/48 interest in Tract B and a 5/48 interest in Tract C and D; Meives held a ¼ interest in the West one-half of Lot 70A; and Gregory held a ¼ interest in Tracts B, C, And D.

[¶8] On April 10, 2014, Koltz filed a Complaint to quiet title to real estate, claiming ownership to land commonly identified as "Survey Legal Tract A" (Property), which consisted of sections of Tracts A, B, C, and D, and a portion of the West one-half of Lot 70A. (Appellants' App. Vol. II, p. 18). The sections comprising the Property were encumbered, entirely or in part, by the easement. The Complaint included, as referenced in its caption, the defendants Gilbert, Deceased; Lester R. Zintsmaster, Deceased; Patricia A. Zintsmaster, Deceased;

AND ALL OTHER UNKNOWN HEIRS AND DEVISEES, AND ALSO THE UNKNOWN HEIRS, DEVISEES, REPRESENTATIVES, LEGATEES, EXECUTORS, ADMINISTRATORS, HUSBANDS, WIVES, RECEIVERS, LESSEES, SUCCESSORS, ASSIGNEES, GUARDIANS, TRUSTEES, WIDOWS,WIDOWERS, CHILDREN, CES TUIS QUE TRUSTS, CREDITORS, BENEFICIARIES, GRANTEES OF EACH AND ALL OF THE ABOVE DESCRIBED AND NAMED DEFENDANTS INCLUDING ALL DEFENDANTS ONCE KNOWN BY ANY OF THE NAMES HEREIN SET OUT WHO HAVE CHANGED THEIR NAMES AND WHO ARE NOW KNOWN BY SOME

OTHER NAME AND ANY AND ALL PERSONS WHO MIGHT HAVE SOME POSSIBLE INTEREST IN SAID REAL ESTATE, AND THE UNKNOWN HUSBANDS OR WIVES, WIDOWS OR WIDOWERS, HEIRS OR DEVISEES OF ALL PERSONS APPEARING OR RECORDED AS AN OWNER OR FORMER OWNER OR ENCUMBRANCER OF REAL ESTATE HEREIN DESCRIBED AND ANY AND ALL PERSONS AND CORPORATIONS CLAIMING FROM, THROUGH OR UNDER SUCH PERSONS AND CORPORATIONS ABOVE DESCRIBED OR HEREINAFTER DESCRIBED AND NAMED AND RELATED TO THEM OR ANY OF THEM

(Appellants' App. Vol. II, pp. 15-16). A praecipe for summons by publication and affidavit in support of the praecipe was filed together with the Complaint. In the affidavit, Koltz's counsel affirmed that all defendants were deceased and that she had "made a diligent search to locate the children and grandchildren, if any, of the deceased defendants, but [was] unsuccessful in locat[ing] the [sic] in order to complete personal service." (Appellants' App. Vol. II, p. 23). Service by publication was made on April 23, April 30, and May 7, 2014, in a daily newspaper in Steuben County, Indiana. The notice published in the newspaper included the caption of the Complaint and generally informed the defendants that they were being sued with the nature of the Complaint being an action to quiet title to real estate located in Steuben County, Indiana. The notice included a deadline to file a response to the Complaint but did not identify the specific real estate.

[¶9] On February 13, 2015, the trial court entered a default judgment after no response to the Complaint had been filed within thirty days of the third publication in the newspaper. On March 2, 2015, Koltz recorded the judgment in the office of the recorder of Steuben County.

[¶10] In December 2018, Morken purchased the real estate, located at 215 Lane 201 A Lake George, Fremont, Indiana. On December 19, 2020, Gregory and Stephen R. Bixler conveyed to Morken any interest they had in the Property by quitclaim deed. On January 20, 2021, Daniel T. Zintsmaster, Anna Maria Corbett, Meives, and Anita Bouma delivered a quitclaim deed to Morken, conveying to Morken any interest they had in the Property. On February 11, 2021, Sprague and David S. Sprague delivered to Morken a quitclaim deed, also conveying to Morken any interest they had in the Property.

[¶11] On November 10, 2021, Appellants filed a motion to intervene and to set aside and vacate the default judgment. In an effort to set aside the default judgment, Appellants argued that of the three lines of ownership succession in the Property, only two lines were included as defendants in the cause. They also claimed that Koltz had provided improper notice of the Complaint by publication and had failed to make reasonable efforts to identify and name the proper defendants while other defendants that were included in the body of the Complaint were never identified by name in the caption of the Complaint. Finally, Appellants maintained that Koltz had failed to file the Quiet Title Affidavit, as required by Indiana Code section 32-30-3-14(e)(2)(F), and had omitted to verify the Complaint.

[¶12] On February 28, 2022, after a hearing, the trial court denied both of Appellants' motions. In its Order, the trial court reasoned that:

A complaint to quiet title is by its nature a suit against the world and notice is required to be published to give notice to all of the claimant's effort to acquire clear title. Every effort should be made to give actual notice to those who appear in the chain of title of record by deed, lis pendens notice, mortgage or other lien. None of the [Appellants] had taken any steps to give notice of their interest in the real estate in question and [Koltz] was left to follow a stale trail of testate and intestate transfers to divine who may have an interest in the subject [P]roperty. That some potential claimants may be omitted is to be expected when the real estate has been so long neglected in the public record that it has even fallen from the tax rolls. The notice actually given by publication was sufficient to have put a vigilant person on notice of the nature of the claim. To hold that every heir with a potential claim of even a miniscule interest can challenge a quiet title determination forever is untenable. The level of uncertainty would be a huge impediment for the utilization of real estate for productive purposes.

[¶13] (Appellants' App. Vol. II, p. 13). As a result, the trial court concluded:

In summary, the [c]ourt finds that [Appellants] have not met their burden to show 'extraordinary and unusual circumstances' under T.R. 24(C) and that their motion is not timely coming more than 6 years after entry of the judgment.

The [c]ourt further finds that even had they been allowed to intervene they have not presented a compelling case that the

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