Morgan v. White

Decision Date28 June 2016
Docket NumberNo. 41A05–1512–PL–2267.,41A05–1512–PL–2267.
Citation56 N.E.3d 109
Parties Jeffrey B. MORGAN and Wendi S. Morgan, Appellants–Plaintiffs/Counter–defendants, v. Andrew WHITE and Holly White, Appellees–Defendants/Counter–claimants.
CourtIndiana Appellate Court

Brett E. Osborne, Hocker & Associates, LLC, Indianapolis, IN, Attorney for Appellants.

Matthew S. Schoettmer, Van Valer Law Firm, LLP, Greenwood, IN, Attorney for Appellees.


, Judge.

[1] Jeffrey B. Morgan and Wendi S. Morgan (collectively, the Morgans) appeal the trial court's findings of fact, conclusions and judgment in favor of Andrew White and Holly White (collectively, the Whites) on the Whites' counterclaim for adverse possession and quiet title. The Morgans raise one issue which we revise and restate as whether the court's judgment is clearly erroneous. We affirm.

Facts and Procedural History 1

[2] In 1983 or 1984, Michael Coram owned Lot Number 32 of Pleasant Creek Acres in Greenwood, Indiana (“Lot 32”), and he built a home thereon. Almost immediately after completing the home, Coram erected a chain link fence to enclose the backyard of Lot 32. Soon thereafter, the neighbor who owned a home on Lot Number 33 (“Lot 33”), which is adjacent to and south of Lot 32, also constructed a chain link fence. The neighbor requested that he be allowed to connect his fence to Coram's fence. The neighbor paid Coram toward the cost of the existing fencing and constructed the fence around the backyard of Lot 33, connecting it with the southern portion of the fence that Coram erected around the backyard of Lot 32.

[3] In 1998, the Whites purchased Lot 33 and received a survey location report at the closing. Based upon this survey location report, the Whites believed that the property line between Lot 33 and Lot 32 was the chain link fence line. Based upon this belief, the Whites have always cared for all of the property located south of the chain link fence, as well as the property south of a line obtained if the chain link fence was extended to the street. The Whites have paid property taxes on Lot 33 since 1998 by making escrow payments to their mortgagee's servicing agent.

[4] Sometime about the year 2000, after the Whites had purchased Lot 33, the then-owner of Lot 32, known as “Blackie,” desired to install a privacy fence, asked the Whites if they wanted to take down the section of the chain link fence they shared and replace it with a privacy fence, and the Whites declined. Appellants' Appendix at 27. Blackie removed the chain link fence with the exception of the southerly portion of the fence that ran between Lot 33 and Lot 32 and installed a privacy fence around the backyard of Lot 32, which was north of the chain link fence.

[5] In 2003, the Morgans closed on their purchase of Lot 32 and the home situated thereon. Prior to closing, the Morgans believed that the Whites owned the chain link fence and that it was located on the Whites' property, but after closing and reviewing a survey location report they had received, they believed that, while the Whites owned the chain link fence, that fence was located on Lot 32.

[6] In April of 2003, Jeffrey Morgan had a conversation with Andrew White regarding the Morgans' belief that the chain link fence encroached onto their property, i.e., Lot 32. In the conversation, Jeffrey Morgan asserted that the chain link fence was on the Morgans' property, and Andrew White responded “that he was not going to voluntarily change the location of the fence.” Id. at 37.

[7] During the period that the Morgans have lived at Lot 32, they have maintained the property to the north of the chain link fence, and the Whites have maintained the property to the south of the chain link fence. In 2009, the Morgans planted eight or nine juniper bushes in the front yard of Lot 32 at the south end of Lot 32 and north of a line that would extend from the chain link fence to the street. In August of 2013, Andrew White trimmed the bushes because he believed the branches were across the property line, they would scratch his wife as she mowed the grass, and they were killing grass on his property as determined from the chain link fence line.

[8] On February 13, 2014, the Morgans filed a complaint (the “Complaint”) alleging Count I, trespass to land related to Andrew trimming the juniper bushes; and Count II, complaint to compel removal of fence. On April 8, 2014, the Whites filed their Counterclaim and Third–Party Complaint to Quiet Title to Real Estate (the “Counterclaim”) alleging Count I, adverse possession and quiet title; Count II, title by acquiescence and quiet title; and Count III, slander of title. On July 8, 2015, the court denied a motion for summary judgment filed by the Whites.

[9] On August 26, 2015, the court held a trial on the Complaint and Counterclaim, and on November 23, 2015, pursuant to a motion by the Morgans, it entered its findings of fact, conclusions and judgment (the Order”) containing detailed findings and conclusions and ruling in favor of the Whites on the Morgans' two-count complaint, in favor of the Whites on their count alleging adverse possession and quiet title, and in favor of the Morgans on the Whites' other counts. The Order contained findings consistent with the foregoing and specifically noted that neither party introduced evidence of a staked survey to establish the property line and that, instead, the court admitted a survey location report for the limited purpose of state of mind of the Whites regarding their belief as to the property line. Under the heading CONCLUSIONS, the Order stated the following in part:

2. A significant aspect of the case is that neither side presented evidence as to the location of the property line. Each side testified to their opinion of where the property line was based upon a survey location report that each side received at the time that the respective properties were purchased. As the Court noted in its Order on summary judgment, a survey location report does not have the same precision as a staked survey. As the Court also noted in it's [sic] Order on summary judgment, the lack of precision is set forth in the disclaimer in the survey. Even assuming that the parties properly developed their good faith belief upon the survey location reports received at closing, no evidence explained the apparent contradiction within the reports.
* * * * *
16. The Court turns to the Counterclaim and Third Party Complaint. The White's first cause of action is pled in adverse possession and quiet title.
17. The Court begins by noting that the Whites did not introduce evidence as to the true property line. The Whites believed that they owed [sic] up to the fence line based upon the survey location report. However, notwithstanding their belief that title to the property is established by deed, the Whites assert that the property has been acquired by adverse possession. No survey was introduced into evidence. A legal description was not provided as to the property subject to acquisition by adverse possession. The Court will consider the adverse possession claim on the assumption that the true property line is not the fence line, and that an unknown quantity of property is subject to claim under adverse possession. The Court will consider [sic] then consider the quiet title action. Issues pertaining to the ownership and description of property will be considered in the quiet title action.
* * * * *
27. The Morgans held the opinion that the property line was approximately one to two feet south of the chain link fence line. The Whites held the opinion that the chain link fence line was the property line.

Id. at 32, 34–35, 37. The court then engaged in a thoughtful examination of the elements of adverse possession and concluded that “the Whites have acquired title to the fence line by adverse possession.” Id. at 46. It also concluded regarding the Whites' action for quiet title that “although the Whites did not introduce evidence of a survey or provide a legal description of the property, [they] did identify monumentation, i.e. the existing fence line, so as to permit the line to be established with a surveyor,” and it quieted title to the disputed parcel in the Whites. Id. at 50. In effecting its decision, the court ordered the Whites to “obtain at their expense a staked survey of the existing chain link fence line and a legal description and file same” and that the parties execute reciprocal quitclaim deeds confirming title utilizing the chain link fence line as the property boundary between Lot 32 and Lot 33. Id. at 51.


[10] The issue is whether the court's judgment is clearly erroneous. When a trial court enters findings of fact and conclusions thereon, findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997)

. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. When a court has made special findings of fact, an appellate court reviews sufficiency of the evidence using a two-step process. Id. First, it must determine whether the evidence supports the trial court's findings of fact, and second it must determine whether those findings of fact support the trial court's conclusions. Id. Findings will only be set aside if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made. Id. We review questions of law de novo and owe no deference to the trial court's legal conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind.Ct.App.2...

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