Kirchgessner v. Kirchgessner

• Decision Date: 29 May 2018
• Docket Number: Court of Appeals Case No. 10A01–1710–CP–2309
• Citation: 103 N.E.3d 676
• Parties: Wayne and Donna KIRCHGESSNER, Appellants–Plaintiffs, v. Betty KIRCHGESSNER, Albert Kirchgessner, Norbert Kirchgessner, Marcella Kirchgessner, Stephen Kirchgessner, Mary Ann Lee, Fred Kirchgessner, Mary Ann Emil Kirchgessner Junior, Mary Kirchgessner, Edward Kirchgessner, Ted Graf, Marcella Graf, James Fessel, Mildred Fessel, Martha Rhodes, Everett Rhodes, Mary Kirchgessner, Clifford Kirchgessner, Julia Bowe, Norbert Renn, Adelaide Renn, Board of Commissioners, Clark County, Indiana, and the Commissioners Paul Garrett, Larry Coates, Larry Dean in their official capacities, Appellees–Defendants
• Court: Indiana Appellate Court

103 N.E.3d 676

Wayne and Donna KIRCHGESSNER, Appellants–Plaintiffs,

v.Betty KIRCHGESSNER, Albert Kirchgessner, Norbert Kirchgessner, Marcella Kirchgessner, Stephen Kirchgessner, Mary Ann Lee, Fred Kirchgessner, Mary Ann Emil Kirchgessner Junior, Mary Kirchgessner, Edward Kirchgessner, Ted Graf, Marcella Graf, James Fessel, Mildred Fessel, Martha Rhodes, Everett Rhodes, Mary Kirchgessner, Clifford Kirchgessner, Julia Bowe, Norbert Renn, Adelaide Renn, Board of Commissioners, Clark County, Indiana, and the Commissioners Paul Garrett, Larry Coates, Larry Dean in their official capacities, Appellees–Defendants

Court of Appeals Case No. 10A01–1710–CP–2309

Court of Appeals of Indiana.

FILED May 29, 2018

Attorney for Appellants: John A. Kraft, Young, Lind, Endres & Kraft, New Albany, Indiana

Attorney for Appellees: Matthew J. McGovern, Anderson, Indiana

Vaidik, Chief Judge.

Case Summary

[1] Indiana Rule of Trial Procedure 60(B)(7) allows a court to grant relief from a judgment if (1) "the judgment has been satisfied, released, or discharged," (2) "a prior judgment upon which it is based has been reversed or otherwise vacated," or (3) "it is no longer equitable that the judgment should have prospective application." Rule 60(B) provides that a motion for such relief "shall be filed within a reasonable time." In this case, the trial court granted relief under the third clause of Rule 60(B)(7)—the "no longer equitable" provision—and the appealing parties argue that the motion was not filed within a reasonable time. We have said that what constitutes a "reasonable time" under Rule 60(B) depends on the specific circumstances of each case. Here, the motion was filed more than twenty-five years after the judgment was entered. That is a long time. But under the unique circumstances of this case, it was not an unreasonable time. We therefore affirm the decision of the trial court.

Facts and Procedural History

[2] In 1949, Anthony, Emil, and Fred Kirchgessner acquired a large tract of land in western Clark County. The land is situated north of St. John Road, and members of the Kirchgessner family have accessed the land using Kruer Road, which runs north from St. John Road. The large tract was gradually broken up, and Wayne and Donna Kirchgessner purchased a forty-acre parcel from Anthony Kirchgessner's estate in June 1984.

[3] Just over a year later, Wayne and Donna filed a lawsuit against the owners of nearby parcels, including numerous other Kirchgessners, and the Clark County Board of Commissioners. Regarding the non-government defendants, Wayne and Donna alleged that their parcel was "landlocked," that Kruer Road was "the only way of ingress and egress," and that defendants Albert and Betty Kirchgessner "have harrassed [sic] and physically prevented use of Kruer Road and have denied Plaintiffs access to their property[.]" Appellants' App. Vol. II p. 16. They asked the court to "[q]uiet title to the easement claimed by Plaintiffs known as Kruer Road" and sought damages related to the alleged blocking of the road. Id. at 17–18. As to the county commissioners, Wayne and Donna claimed that Kruer Road "has been maintained as a Clark County road since at least 1967," that before they bought their parcel one of the commissioners "represented" to Wayne "that Kruer Road was a County road and would be maintained as such," that Wayne "relied upon said representation at the time he purchased his property in 1984," and that the county "has since failed to maintain said road to the detriment of Plaintiffs and as a result thereof Plaintiff[s'] property value has decreased." Id. at 16. Wayne and Donna asked the court to "[d]eclare the roadway known as Kruer Road[ ] a County Road and order the Clark County Board of Commissioners to resume the maintenance of Kruer Road as a County Road for the benefit of Plaintiffs and Defendants." Id. at 18.

[4] What happened with the case over the next four years is unclear from the record, but in September 1989, Wayne and Donna filed an amended complaint.¹ Their allegations with regard to the non-government defendants remained largely the same, but they added further detail to their claim that Kruer Road was a "county road." Id. at 24, 26.

[5] In an answer to the amended complaint, a group of the non-government defendants, including Albert and Betty Kirchgessner, explained that they were not opposed to having their property crossed by Wayne and Donna but that there was a dispute regarding the appropriate path of the crossing. The same defendants later entered into a Stipulation of Facts with Wayne and Donna, which in turn was attached to a motion for summary judgment that Wayne and Donna filed in April 1990. The parties stipulated that Kruer Road was a "Clark County road" and that, even if it were not, it "may be used by Wayne and Donna Kirchgessner [and] their heirs, successors and assigns to gain access to their property[.]" Id. at 35, 36. The stipulation also included provisions addressing how future obstructions of and improvements to the road would be handled. In light of the stipulation by the non-government defendants, Wayne and Donna's memorandum in support of their motion for summary judgment was directed entirely at the government defendants, focusing on the claim that Kruer Road was a county road.

[6] In their response to Wayne and Donna's motion, the government defendants disputed that Kruer Road was an official "county road," a designation that they said only the county itself could make, and one that would impose heightened maintenance burdens and legal liabilities on the county. Id. at 55–63. However, they acknowledged a history of county maintenance of the road, and they indicated that they would have no objection to the court declaring the road a "public highway by use" and ordering them to perform limited maintenance on the road (laying gravel "from time to time"). Id. at 61–63. The government defendants described this as "[a]n ideal resolution of the family dilemma that brought this matter to court[.]" Id. at 62–63.

[7] On October 1, 1990, the trial court issued its order on Wayne and Donna's motion ("1990 Entry"). The court declared the road a "public highway by use" and "approve[d] the agreement of the governmental defendants" to maintain the road as proposed. Id. at 67. The court added that "[t]he previously tendered Stipulation between the plaintiffs and the non-governmental defendants is hereby ordered withdrawn[.]" Id. at 68. The court concluded, "That Judgment is now hereby entered in favor of plaintiffs in accord with the terms hereof. Further, upon plaintiffs' motion, the remainder of this entire action is hereby ordered dismissed with prejudice." Id.

[8] Fast forward twenty-two years. In late 2012, the county paved a new Kruer Road adjacent to the original road. Three years later, in December 2015, Richard and Theresa Williams filed a Motion to Vacate Summary Judgment Entry of October 1, 1990.² They claimed that the original Kruer Road runs through their property, that "the newly paved Kruer Road is the primary access road over which vehicles regularly travel and it replaced the former ‘roadway,’ " and that "the need for any commissioner involvement on the former ‘roadway’ from 1990 is no longer in existence." Id. at 70–71. They argued that "[t]here is no legal reason to continue the existence of the ‘roadway’ and to, by extension, continue this burden or cloud on the title of the real estate owned by your movants" and that if the 1990 Entry is vacated the county commissioners "will no longer be exposed to any risk of liability in an old roadway that has been replaced by the newly paved Kruer Road." Id. at 71–72.

[9] Wayne and Donna filed an opposition to the motion, and the trial court held a hearing. The parties treated the motion as one for relief from judgment under Indiana Trial Rule 60(B). Wayne testified, and when asked why he didn't want the original Kruer Road to be vacated, he said, "I've been using it for forty-three (43) years, that my grandpa built, so I'm going to continue to use that road until somebody tells me I can't or stops me from using it." Tr. p. 143.

[10] After the hearing, the trial court issued an order granting the Williamses' motion. The court cited Rule 60(B)(7), which allows for relief from judgment if (1) "the judgment has been satisfied, released, or discharged," (2) "a prior judgment upon which it is based has been reversed or otherwise vacated," or (3) "it is no longer equitable that the judgment should have prospective application." Specifically, the court relied on the third clause—the "no longer equitable" provision:

Given that the Commissioners have eliminated (by building [the new Kruer Road] ) the 1990–based need for a court-created roadway, the exigencies for the 1990 temporary roadway have been eliminated. The court, given all the circumstances and risks involved, concludes that it is necessary to vacate the roadway portion of the 1990 Entry and that the same should no longer have prospective effect. T.R. 60(B)(7)[.]

Appellants' App. Vol. II p. 180.³ The court said that Wayne and Donna could no longer "enter upon" the original Kruer Road and that the Williamses are free to "close off all access" to it. Id. at 182.

[11] Wayne and Donna now appeal.⁴

Discussion and Decision

[12] Wayne and Donna launch several attacks on the trial court's decision, but the only one that requires detailed discussion is their argument that the Williamses' Rule 60(B) motion was untimely. The rule includes eight sub-paragraphs that set forth different grounds for granting relief from judgment. Ind. Trial Rule 60(B). A motion under sub-paragraph (1), (2), (3), or (4) must be filed "not more than one year after the judgment, order or proceeding was entered or taken," while a motion under sub-paragraph (5), (6), (7), or (8) "shall be filed within a reasonable time." Id. In this case, the trial court granted relief because it found—under the third clause of sub-paragraph (7)...