Harlan Bakeries, Inc. v. Muncy

Decision Date13 October 2005
Docket NumberNo. 32A01-0411-CV-469.,32A01-0411-CV-469.
Citation835 N.E.2d 1018
PartiesHARLAN BAKERIES, INC., Appellant-Plaintiff/Cross-Appellee, v. Kelly Lee MUNCY, Kendra Marie Vondersaar, Karen Kay Muncy and Kim Sue Muncy, Appellees-Defendants/Cross-Appellants.
CourtIndiana Appellate Court

835 N.E.2d 1018

HARLAN BAKERIES, INC., Appellant-Plaintiff/Cross-Appellee,
Kelly Lee MUNCY, Kendra Marie Vondersaar, Karen Kay Muncy and Kim Sue Muncy, Appellees-Defendants/Cross-Appellants.

No. 32A01-0411-CV-469.

Court of Appeals of Indiana.

October 13, 2005.

835 N.E.2d 1019


835 N.E.2d 1020


835 N.E.2d 1021


835 N.E.2d 1022


835 N.E.2d 1023

Robert L. Hartley, Thomas A. Withrow, Angie L. Ordway, Locke Reynolds LLP, Indianapolis, for Appellant.

Lawrence R. Wheatley, Danville, for Appellees.


CRONE, Judge.

Case Summary

Harlan Bakeries, Inc. ("Harlan") appeals a $239,082.12 judgment in favor of four siblings, Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy, and Kim Sue Muncy (collectively, "Muncy"; individually, by first name). We affirm in part, reverse in part, and remand for further proceedings.


Harlan challenges numerous specific findings and conclusions entered by the trial court. Harlan asserts that the court erred by:

I. Reforming the North Boundary Line to "a line that runs through the center of an east to west running drain";
II. Reforming the West Boundary Line to be eighteen (18) feet east of the freezer building Harlan built in 2000;
III. Awarding damages based upon erroneous findings and conclusions, or speculation and conjecture, and in awarding damages that are unrecoverable under the law; and
IV. Holding Harlan in contempt of a restraining order that did not comply with Indiana law.

Facts and Procedural History

This case, between owners of adjoining property on Production Drive in Avon, Indiana, involves disputes regarding boundaries and surface water drainage.

835 N.E.2d 1024
The parcel owned by Muncy has been in that family since approximately 1961, at some point being acquired through inheritance. Tr. at 485. Harlan owns and operates a commercial baking plant on land that it purchased in two parts: Maplehurst sold the majority of the land to Harlan in 1994; a fifth Muncy sibling, Kerry, sold a small portion of land to Harlan in 1999. Together, Harlan's parcel and Muncy's parcel form a large rectangle, with Muncy's property consisting of a smaller rectangle in the southeast corner of the large rectangle. Two common borders exist: one on the north end of Muncy's property (the "North Boundary Line") and one on the west side of Muncy's property (the "West Boundary Line"). More detailed facts follow

In 1981 and 1982, Lewis Engineering, Inc. ("Lewis"), prepared a "Road & Drainage Plan" for Avon Production Lane Association, Inc. ("APLA"), covering an area of land that includes what is now Harlan's and Muncy's respective parcels. As per that plan, Production Drive runs east-west at the south end of Muncy's parcel and ends in a cul-de-sac. In April 1983, the Estate of Edward Muncy quitclaimed to APLA a 12.5-foot-wide strip across the south end of Muncy's parcel. Appellant's App. at 179. The quitclaim deed included an "easement for installation and maintenance of storm sewer having 10 feet on either side of" a described centerline. Id. In November 1983, APLA deeded, via corporate quitclaim, to Hendricks County a strip of land with a very similar legal description. Id. at 181-82. The corporate quitclaim noted that the deed was "subject to all easements." Id. at 182. On both the North Boundary Line and the West Boundary Line, storm sewer pipes (hereinafter "North Storm Sewer" and "West Storm Sewer" respectively) were installed.

Sometime after the North Storm Sewer was installed, Kelly uncovered the pipe, removed a thirty-five- to forty-foot portion of it, bulldozed a depression where the pipe had been, and created a pond. Tr. at 561-63. In 1995 or 1996, Harlan President Hugh Harlan and Kelly met with a Lewis surveyor, who explained the property lines. Id. at 501-02. The surveyor indicated a rebar stake at the south end of the West Boundary Line. Id. Neither Kelly nor Hugh Harlan objected to the location of the stake, though Kelly believed that the stake was within six to twelve inches of the West Boundary Line. Id. at 502-03. On November 22, 1995, Lewis prepared for Harlan a site plan, which was revised on January 12, 1996 ("1996 Lewis site plan"). Appellant's App. at 264; Tr. at 144. The 1996 Lewis site plan showed the West Storm Sewer on Muncy's parcel and running parallel to and slightly east of the West Boundary Line. Appellant's App. at 264.

On February 12, 1997, Kerry signed a written agreement to sell approximately.57 acres of the north part of Muncy's parcel to Harlan. Id. at 143-51. As a condition precedent, Kerry agreed to "obtain fee simple title to the Premises by acquiring such" from his four siblings. Id. at 143. To that end, Kerry filed a partition action on March 10, 1998, against Muncy regarding the parcel. Id. at 155. Thereafter, Kerry learned that he could not deliver as large a parcel as he originally promised to Harlan. Tr. at 100. Harlan sought a corresponding price reduction. See id. at 100-01; 358-59. In conjunction with renegotiations, Hugh Harlan, Kerry, and Kelly conducted a meeting at the property. Id. at 511, 517. At the meeting, the North Boundary Line, which was originally going to start at an air conditioner on a certain building, was

835 N.E.2d 1025
moved to the "beehive"1 collectors located on either end of the pond, thus making the line run through the center of the North Storm Sewer. Id. at 100-03, 106-08 (Hugh Harlan testimony), 514, 518 (Kelly Muncy testimony)

Harlan hired Lewis to prepare a legal description of the parcel to be purchased. Id. at 100-02. In a drawing prepared by Lewis at the end of April 1998, the parcel to be purchased measured 141.50 feet long by 91.00 feet wide and consisted of approximately.29 acres. Appellant's App. at 254. In a May 7, 1998 letter written to Muncy's counsel, Kerry's attorney, Kevin Hinkle, memorialized the relevant proposed renegotiated terms as follows:

Upon the execution of a real estate sales and purchase agreement between Kerry and Harlan Bakeries, Kerry will agree to resolve the lawsuit by accepting a deed from your clients Muncy for a portion of the Real Estate described in the Complaint. That portion is roughly described as the northern tract of the Real Estate with a southern boundary that extends along a line that runs through the dead center of the existing "North" storm sewer in the pond.
Harlan Bakeries must have the right to fill-in the entire pond. Kerry will seek contractual provisions with Harlan Bakeries that the fill must consist of clean dirt and that the existing storm sewer is not disturbed and remains "hooked-up." Your clients Muncy would still have access to and use of the storm sewer.
. . . .
In turn, Kerry will agree to dismiss the suit with prejudice and to enter into a release agreement with your clients Muncy that will relinquish all of Kerry's right, title and interest in and to the remaining Real Estate to your clients Muncy.

Id. at 229. On or about January 22, 1999, Attorney Hinkle circulated to the title company, Muncy's counsel, and Harlan's counsel various documents provided by Lewis, including (1) a written Legal Description2 of the parcel to be sold by Kerry to Harlan, and (2) a Plot Diagram thereof. Id. at 231-55; Tr. at 365-66, 375. According to the Legal Description, the parcel measured 141.50 feet long by 106.003 feet wide, and consisted of approximately

835 N.E.2d 1026
.344 acres.4 Appellant's App. at 233. The Plot Diagram, which provided identical dimensions (of 141.50 feet by 106.00 feet) for the parcel, showed the North Boundary Line as bisecting the North Storm Sewer, and indicated that the West Storm Sewer was slightly east of the West Boundary Line. Appellant's App. at 234

The final settlement agreement of the partition matter, signed February 12, 1999, contained the same Legal Description of the .344-acre parcel to be deeded by Muncy to Kerry as had been previously circulated by Attorney Hinkle. Id. at 160, 233. Departing a bit from Attorney Hinkle's letter, the final settlement agreement permitted Kerry or his transferees to drain and fill the pond "with clean fill dirt and reconnect" the North Storm Sewer "without any liability whatsoever to" Muncy, "provided however, that the severed Real Estate will have access to a surface water drain in the general area of the pond." Id. at 156 (emphasis added). Moreover, Kerry agreed to convey his interest in the remainder of the parcel to Muncy and to obtain Harlan's release of a thirty-foot ingress-egress easement across the Muncy parcel. Id.

Consistent with the final settlement agreement, the following transactions also occurred on February 12, 1999. Muncy deeded the .344-acre parcel to Kerry using the same Legal Description as in the final settlement agreement. Id. at 168. Kerry quitclaimed his remaining interest in the rest of the Muncy parcel to Muncy. Id. at 165-66. Kerry deeded his interest in the.344-acre parcel, again using the same Legal Description, to Harlan. Id. at 168. Harlan released its ingress-egress easement in the remaining Muncy property. Id. at 175. Kerry and Harlan entered into an amended real estate purchase agreement. Id. at 143-54.

Thereafter, Harlan drained the pond, reconnected the North Storm Sewer, and filled the pond. Harlan connected the North Storm Sewer using plastic (rather than concrete) pipe laid on silt and debris, which settled, causing the center of the plastic pipe to sink. Tr. at 640. Initially, Harlan filled the pond with debris rather than clean fill; approximately one year later, Harlan removed some of the debris and paved over a portion, thus elevating Harlan's side approximately twenty to twenty-four inches above Muncy's side. Id. at 523, 626, 120-21. A low spot remains on Muncy's side where the pond used to be. Id. at 527.

In early 2000, Harlan contracted with Banning Engineering, Inc. ("Banning"), to perform necessary surveying and site...

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