Meyer v. Marine Builders, Inc.

• Decision Date: 29 September 2003
• Docket Number: No. 10A01-0304-CV-123.,10A01-0304-CV-123.
• Citation: 797 N.E.2d 760
• Parties: Leo H. MEYER and Cheryl D. Meyer, Appellants-Defendants, v. MARINE BUILDERS, INC., Appellee-Plaintiff, and Winston Knauss, James G. Vogt, Jr., Nancy H. Vogt, and Chase Manhattan Mortgage Company, Appellees-Defendants.
• Court: Indiana Appellate Court

797 N.E.2d 760

Leo H. MEYER and Cheryl D. Meyer, Appellants-Defendants, v. MARINE BUILDERS, INC., Appellee-Plaintiff, and Winston Knauss, James G. Vogt, Jr., Nancy H. Vogt, and Chase Manhattan Mortgage Company, Appellees-Defendants.

No. 10A01-0304-CV-123.

Court of Appeals of Indiana.

September 29, 2003.

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

Craig D. Doyle, Mark S. Gray, Doyle & Friedmeyer, P.C., Indianapolis, IN, for James G. Vogt, Jr. and Nancy H. Vogt.

Ernest W. Smith, Smith, Bartlett, Heeke, Carpenter, Thompson & Fondrisi, LLC, Jeffersonville, IN, for Marine Builders, Inc.

OPINION

BAILEY, Judge.

Case Summary

Appellants-Defendants Leo and Cheryl Meyer (collectively, the "Meyers") appeal the trial court's denial of their motion for summary judgment and the trial court's grant of summary judgment in favor of Appellees James and Nancy Vogt (collectively, the "Vogts"), defendants below, and Marine Builders, Inc. ("MBI"), plaintiff below. We affirm.

Issues

The Meyers raise several issues in their challenge to the trial court's entry of summary judgment, which we consolidate, reorder, and restate as:

I. Whether the trial court abused its discretion by denying the Meyers' motion to strike portions of two affidavits;

II. Whether a prior agreed judgment between the parties and/or their privies bars litigation of the disputed issues pursuant to the doctrine of res judicata;

III. Whether the trial court erred by reforming the warranty deed for the property in dispute because the Vogts did not present clear and convincing evidence that reformation was appropriate; and

IV. Whether the Meyers' Warranty Deed has priority over the Vogts'¹ pursuant to Indiana Code Section 32-21-4-1.

Facts and Procedural History

I. Background

The relevant designated facts follow. The Meyers and the Vogts own property in a residential development known as Shore Acres Subdivision ("Shore Acres"). The residential property owned by the Meyers is located at 407 Shore Acres Drive (the "Meyers' Property"). The Vogts' residential property is located at 406 Shore Acres Drive (the "Vogts' Property").

II. Conveyance of Property from Knauss to MBI

Prior to April of 1990, Fred J. Kunz, Jr., ("Kunz") owned certain real property in Shore Acres, which was contiguous to a road owned by MBI. On April 3, 1990, MBI, Kunz, and several other property owners entered into an Agreed Judgment. In brief and in relevant part, the Agreed Judgment: (1) extended Kunz's lot lines in Shore Acres up to the present location of MBI's road; and (2) granted MBI an easement over the extension of Kunz's lot lines.² On July 21, 1997, Kunz conveyed the real estate to Winston Knauss ("Knauss"). On June 18, 1999, MBI purchased a parcel of the real estate from Knauss, which is described, in relevant part, as:

Being part of Lots 25 and 27 and being all of Lot 26 and Part of Survey Number 7 of the Illinois Grant, Clark County, Indiana, more particularly described as follows:

Beginning at the southwest corner of lot number 6, Thence N 72 degs. W, 92.15 feet to a PK rail, The True Point of Beginning for the following described tract; Thence N 72 degs. W, 127.85 feet to a point; Thence N 18 degs. E, 100.00 feet to a point; thence S 72 degs E, 127.85 feet to point marked by a PK nail; Thence S 18 degs. W, 100.00 feet to point, the true of beginning, containing 0.2935 acres more or less. Subject to a roadway easement as described in Deed Drawer 2, Instrument No. 6566.

Appellants' App. at 6. The Warranty Deed for this parcel of real estate was recorded on June 24, 1999.

III. Conveyance of the Meyers' Property: 407 Shore Acres Drive

On August 2, 2000, Knauss conveyed the remainder of his interest in the real estate, i.e., property located at 407 Shore Acres Drive, to the Meyers.³ The Meyers' property is more specifically described as:

Being a part of Lots [8⁴], 12, 14, 25, and 27, all of Lots 6, 7, 13, and 26 and part of a 25 foot wide vacated roadway (see miscellaneous Record Book 36, Page 195) in Shore Acres Subdivision as shown in Plat Book 6, Page 16 of the Clark County, Indiana Records and being further described as:

Beginning at the southwestern corner of said Lot 6; Thence N. 72 W., 245 feet to a steel pin on southeast right-of-way line of a 31.5 foot wide ingress and egress easement; Thence N. 18 E., along said southeast line, 100 feet; Thence S. 72 E., 176.42 feet to a steel pin; Thence N. 18 degrees E., 5 feet to a steel pin; Thence S. 72 degrees E., 298.5, more or less, to the line dividing the State of Indiana and the Commonwealth of Kentucky; Thence Southwestwardly along said dividing line, 105 feet more or less, to the southeastern corner of the said lot 6, Thence N. 72 degrees W., along the southwestern line of said lot 230 feet, more or less, to THE PLACE OF BEGINNING. Containing 1.12⁵ acres, more or less, and being subject to all easements of record.

Id. at 64. The Warranty Deed for the Meyers' Property, which was recorded on August 8, 2000, specifically excludes the property previously conveyed by Knauss to MBI.

IV. Conveyance of the Vogts' Property: 406 Shore Acres Drive

On August 14, 2000, MBI conveyed a parcel of the property that it acquired from Knauss, i.e., property located at 406 Shore Acres Drive, to the Vogts. The Vogts' Property is more particularly described as:

A part of Lot 25 and part of Lot 26 and part of Lot 13 and part of Lot 14 of Shore Acres. Plat Book 6, Page 16, Clark County, Indiana, more particularly described as follows: Commencing at an iron pin marking the Northwest corner the plat of Shore Acres and running thence South 72 East along the Southern Line of Church Street for a distance of 31.5 feet to the Northwest Corner of Lot 29 of Shore Acres; thence running 18 West along the Western line of Lots 29, 28, 27 and 26 for a distance of 170 feet and 5/8" rebar wit I.D. cap (T.J. Boofter, L.S.), THE TRUE PLACE OF BEGINNING OF THE TRACT HEREIN DESCRIBED:

Thence severing Lot 26 and running South 72 East for a distance of 132.5 feet to a spike in Lot 13 and in the center of a certain 25 foot wide easement; thence running South 18 West along the center of said 25 foot wide easement for a distance of 50 feet to a spike in Lot 14; thence running North 72 West (crossing into Lot 25 at 12.5 feet) for a distance of 132.5 feet to a rebar in the West line of Lot 25; thence running North 18 East along the Western line of Lots 25 and 26 for a distance of 50.0 feet to a 5/8" rebar with I.D. cap, THE TRUE PLACE OF BEGINNING, subject to an easement in favor of the residents of Shore Acres, said easement being for ingress and egress and for the installation and maintenance of public utilities, said easement being 25 feet in width and the centerline of which easement is coincident with the Eastern line of the above-described tract.

Appellants' App. at 10. The Warranty Deed for the Vogts' Property was recorded on August 14, 2000.

V. Commencement of the Present Litigation

As described in the Warranty Deeds, the Vogts' Property includes a parcel of real estate that is also included in the Meyers' Property description. In particular, the Warranty Deeds for both the Vogts' and the Meyers' Properties, as executed and recorded, purport to convey the same parcel of land located in parts of Lots 25 and 26.

On March 26, 2002, after discovering that the two warranty deeds include a parcel of the same property, MBI filed an Amended Verified Complaint requesting that the trial court quiet title in its name and revise the legal description of the property represented by the Warranty Deed between MBI and Knauss, in part, as follows:

Being all of Lot 26 and part of Lots 12, 13, 14, 25 and 27 . . . and being further described as follows:

Beginning at the southwest corner of lot number 6, Thence N 72 degs. W, 117.15 feet to a PK rail, The True Point of Beginning for the following described tract; Thence N 72 degs. W, 127.85 feet to a point; Thence N 18 degs. E, 100.00 feet to a point; thence S 72 degs E, 127.85 feet to point marked by a PK nail; Thence S 18 degs. W, 100.00 feet to point, the true of beginning, containing 0.2935 acres more or less. Subject to a roadway easement as described in Deed Drawer 2, Instrument No. 6566.

Id. at 22 (emphasis added).⁶ On April 9, 2002, in their Answer to the Amended Complaint, the Meyers asserted several defenses including, in relevant part, that: (1) MBI's claim was barred by the statute of frauds; (2) MBI's claim was barred pursuant to Indiana Code Section 32-1-2-16,⁷ because the Meyers' interest in the property was superior to any interest claimed by MBI; (3) MBI has no standing to bring a cause of action because it no longer holds title to the real estate subject to the controversy; and (4) MBI's claim was barred by the doctrine of res judicata. Id. at 25-26. On August 14, 2002, the Vogts filed a cross-claim requesting that the trial court quiet title in their name and reform the legal description of the Vogts' Property.

On October 21, 2002, the Vogts filed a motion for summary judgment. Attached to their motion were the affidavits of Thomas J. Boofter ("Boofter Affidavit") and David W. Evanczyk ("Evanczyk Affidavit"). In response, the Meyers filed a cross-motion for summary judgment and an objection to the Vogts' motion for summary judgment. The Meyers also filed motions to strike portions of the Boofter and the Evanczyk Affidavits. In addition, attached to the Meyers' cross motion for summary judgment was an affidavit of Mr. Meyer ("Meyer Affidavit"). On December 26, 2002, MBI filed a motion to join in the Vogts' motion for summary judgment, which the trial court granted.

VI. The Trial Court's Disposition of all Pending Motions

On January 9, 2003, after holding a hearing on the motion and cross-motion for summary judgment, the trial court granted summary judgment to the Vogts and MBI and denied the Meyers' motion for summary judgment. In so doing, the trial...