Pardue v. Smith

• Decision Date: 22 October 2007
• Docket Number: No. 32A01-0612-CV-576.,32A01-0612-CV-576.
• Citation: 875 N.E.2d 285
• Parties: Jerry PARDUE and Linda Pardue, Husband and Wife, Appellants-Plaintiffs, v. Jerry SMITH and Linda Smith, Husband and Wife, Stephen M. Carter and Carolyn Sue Carter, Husband and Wife, and The Town of Plainfield, Indiana, Appellees-Defendants.
• Court: Indiana Appellate Court

875 N.E.2d 285

Jerry PARDUE and Linda Pardue, Husband and Wife, Appellants-Plaintiffs, v. Jerry SMITH and Linda Smith, Husband and Wife, Stephen M. Carter and Carolyn Sue Carter, Husband and Wife, and The Town of Plainfield, Indiana, Appellees-Defendants.

No. 32A01-0612-CV-576.

Court of Appeals of Indiana.

October 22, 2007.

Kimberly L. Cohen, Drewry Simmons Vornehm, LLP, Indianapolis, IN, Attorney for Appellants Jerry and Linda Pardue.

Betty M. Conklin, Danville, IN, Attorney for Appellees Jerry and Linda Smith.

Douglas W. Meyer, Plainfield, IN, Attorney for Appellees Stephen M. and Carolyn Sue Carter.

Melvin R. Daniel, James B. Chapman II, Dann Pecar Newman & Kleiman, P.C., Indianapolis, IN, Attorneys for Appellee Town of Plainfield.

OPINION

BRADFORD, Judge.

Appellants-Plaintiffs Jerry Pardue and Linda Pardue (collectively, "the Pardues") appeal the trial court's judgment, following a bench trial, in favor of Jerry Smith and Linda Smith (collectively, "the Smiths"), Stephen M. Carter and Carolyn Sue Carter (collectively, "the Carters"), and the Town of Plainfield ("Plainfield") with regard to the alleged dedication of certain real property to Plainfield and an easement by necessity across the land.

The Pardues raise three issues on appeal, which we consolidate and restate as (1) whether the trial court erred in determining that the disputed property had been dedicated to the public; and (2) whether the evidence was sufficient to support a claim for an implied easement by prior use. Plainfield, in turn, requests appellate attorneys' fees pursuant to Indiana Appellate Rule 66(E).

Concluding that the trial court properly denied the Pardues' requested relief, we affirm. Additionally, we decline Plainfield's request for attorneys' fees.

FACTS AND PROCEDURAL HISTORY

Prior to 1980, the Smiths owned two adjacent parcels of real estate located at the northern end of Gibbs Street in Plainfield. The Smiths' residence sat on the northern end of their property at 559 N. Gibbs Street. In approximately 1980, Jerry Smith applied for a permit to build a second residence on the smaller parcel, which was located at the southern end of the Smiths' property. In connection with the issuance of the building permit, Gibbs Street was to be extended to the northern corner of the smaller parcel owned by the Smiths. The Smiths owned half of the land that was needed to extend Gibbs Street, and their neighbor, Mr. Lyons, owned the other half. Jerry Smith represented that initially, both he and Lyons were willing to dedicate to Plainfield the property needed to extend Gibbs Street, but Lyons subsequently revoked his offer. Upon learning of the revocation of Lyons's offer, a Plainfield official told the Smiths to "forget it" and that it did not want half of the street. Plainfield has never since demanded that the Smiths or any subsequent owners convey the property to it. Plainfield has had no further legal involvement in this matter since granting the Smiths the building permit.

After receiving the building permit from Plainfield, the Smiths constructed a new home on the parcel at the southern end of their property, at 517 N. Gibbs Street, and situated the home with a garage facing west toward Gibbs Street. Neither the Smiths nor Plainfield ever extended Gibbs Street. The driveway at 517 N. Gibbs Street crosses over a portion of 559 N. Gibbs Street. The Smiths rented the new home at 517 N. Gibbs Street to the Pardues sometime after it was built in 1981. The Pardues used the driveway to gain access to Gibbs Street.

On October 27, 1988, the Smiths sold the property at 559 N. Gibbs Street to the Carters. Upon obtaining a copy of the mortgage survey, the Carters discovered that the driveway coming from 517 N. Gibbs Street encroached upon their lot. The Carters subsequently notified the Pardues that the driveway encroached upon their land. The Pardues continued using the driveway to gain access to Gibbs Street.

On July 2, 1996, the Pardues bought the property at 517 N. Gibbs Street from the Smiths. After purchasing the property, the Pardues obtained a staked survey of their property. The May 5, 1997 staked survey verified that their driveway encroached upon the land owned by the Carters and that 517 N. Gibbs Street had 12.38 feet of access directly onto Gibbs Street along the southern end of their lot. Despite the results of the staked survey, the Pardues were unwilling to curve their driveway to the south across their 12.38 feet of access to Gibbs Street because, according to their testimony, "it wouldn't look right" and they did not believe their lot was big enough for vehicles to turn around in the driveway. Appellant's App. 14, 15. Additionally, the Pardues testified that there was a telephone pole and a manhole located within their 12.38 feet of access to Gibbs Street, which they believed would make moving their driveway impractical.

On November 17, 2006, the trial court conducted a bench trial at which the parties presented evidence relating to the Pardues' Verified Complaint alleging that they were entitled to an easement by necessity across the Carters' property and that the Smiths had breached their warranty of title. The Complaint further requested that the court order that Gibbs Street be "completed" by either the Smiths or Plainfield. At the conclusion of the trial, the Pardues moved that the trial court conform the pleadings to the evidence.¹

On November 29, 2006, the trial court entered its Findings of Fact and Conclusions of Law. The trial court concluded: (1) that the Pardues failed to prove all the elements necessary for an easement by prescription or adverse possession; (2) that the Pardues failed to prove that they were entitled to an easement by necessity over the Carters' real estate to access Gibbs Street; (3) that the Pardues failed to prove that the Smiths breached their warranty of title; and (4) that the Pardues' claim for the enforcement of the alleged agreement to dedicate Gibbs Street was without merit. The trial court granted Plainfield's Motion to Dismiss and denied the Pardues' Complaint of all relief requested. This appeal follows.

DISCUSSION AND DECISION

I. Standard of Review

When, as here, the trial court enters specific findings of fact and conclusions of law we apply a two-tiered standard of review. Anthony v. Ind. Farmers Mut. Ins. Group, 846 N.E.2d 248, 252 (Ind. Ct.App.2006). We first must determine whether the evidence supports the findings and then must determine whether the findings support the judgment. Id. We will reverse the judgment only when it is clearly erroneous. Id. Where, as in this case, the trial court enters such findings and conclusions sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the trial court has not found and we may affirm a general judgment on any theory supported by the evidence adduced at trial. Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct.App.1998).

We also note that the Pardues are appealing from a negative judgment. A party appeals from a negative judgment when it had the burden of proof at trial, and such party will only prevail if it establishes that the judgment is contrary to law. Helmuth v. Distance Learning Sys. Ind., Inc., 837 N.E.2d 1085, 1089 (Ind.Ct.App. 2005). A judgment is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead only to one conclusion, which differs from the conclusion reached by the trial court. The Blakley Corp. v. EFCO Corp., 853 N.E.2d 998, 1002 (Ind.Ct. App.2006).

We further observe that pursuant to the notion of fairness, a party may not change its theory on appeal and argue an issue that was not properly presented to the trial court. Carter v. Estate of Davis, 813 N.E.2d 1209, 1213 (Ind.Ct.App. 2004). Nor may a party raise a new issue on appeal under the cloak of evidence relevant to a similar, yet distinct issue that was properly pled before the trial court. See Wampler v. Tusing, 711 N.E.2d 533, 536 (Ind.Ct.App.1999) The notion of fairness requires that "the opposing party have `some notice that an issue is before the Court which has not been pleaded or has not been agreed to in a pre-trial order.'" Id. at 535 (quoting Aldon Builders, Inc. v. Kurland, 152 Ind.App. 570, 580, 284 N.E.2d 826, 832 (1972)). "Both parties must litigate the new issue, and implied consent will not be found unless the parties know or should have known that the unpleaded issue was being presented." Id. at 536. "This is particularly true when the new issue is not unequivocally clear from the evidence presented at trial." Id. "Implied consent to trial of an unpleaded issue may not be deduced merely because evidence relevant to a properly pleaded issue inferentially suggests an issue not within the pleadings." Id.

II. Common Law Dedication of Land For Public Use

Upon appeal, the Pardues allege that the trial court erred by failing to find that the land in question had been dedicated to the public by means of common law dedication. The Pardues admit that they never used the term "common law dedication" before the trial court, but claim that this legal theory was the essence of their claim for relief. The Pardues further allege that even if they did not specifically plead the issue of common law dedication before the trial court, they nevertheless presented sufficient evidence to support this theory and therefore properly raised it by means of their Motion to Conform the Pleadings to the Evidence.

We conclude that the Pardues did not properly raise this issue before the trial court and have therefore waived the right to raise this issue on appeal. The evidence presented before the trial court was insufficient to notify the adverse parties, and specifically Plainfield, that the issue of common law dedication was properly before the court. In fact, the vast majority of the evidence...