Steele v. Callahan

Decision Date17 July 2012
Docket NumberNo. 84A01–1110–SC–484.,84A01–1110–SC–484.
Citation970 N.E.2d 799
PartiesWilliam M. STEELE, Appellant, v. Daniel CALLAHAN, Appellee.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from the Vigo Superior Court; The Honorable Christopher A. Newton, Judge; Cause No. 84D04–1011–SC–9731.

John J. Klotz, Klotz Law Office, Terre Haute, IN, Attorney for Appellant.

David P. Friedrich, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Terre Haute, IN, Attorney for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MATHIAS, Judge.

Daniel Callahan (Callahan) filed a complaint in Vigo Superior Court alleging that William M. Steele (Steele) negligently surveyed Callahan's property, and that Steele's negligent survey proximately caused Callahan to incur damages related to an additional survey of the property, the moving of a fence, and related landscaping. Steele filed a motion to dismiss on the grounds that Callahan's complaint was untimely. Following a bench trial, the trial court denied the motion to dismiss and entered judgment for Callahan in the amount of $4,000. However, the trial court denied Callahan's request for attorney fees. Steele appeals the trial court's denial of the motion to dismiss and its finding that inconsistencies in Steele's surveys were the proximate cause of Callahan's damages. Callahan cross-appeals on the trial court's denial of his claim for attorney fees.

We affirm in part, reverse in part, and remand to the trial court to enter judgment consistent with this opinion.

Facts and Procedural History

In 2008, Callahan contracted with Steele, a licensed surveyor, to survey Callahan's property, locate the four corners of Callahan's property, and to give Callahan an “approximation of where [he] should put [a] fence.” Tr. p. 7. In the 2008 survey of Callahan's property, Steele found four existing corner pins. The southeast corner was marked on the survey with “Exist. LP. in Concrete,” indicating that Steele found an existing iron pin, or monument, 1 at that location indicated on the survey document. Ex. Vol. p. 3. In addition, Steele marked each corner of the Callahan property with wooden stakes and ribbon. Steele charged Callahan $400 for the survey.

Based on Steele's 2008 survey and starting at the southeast corner of his parcel, Callahan “eyeball[ed] a line along the entirety of Callahan's south boundary line, which was approximately 285 feet long. Tr. p. 8. Callahan had a fence built along this eyeballed line. Callahan testified that when eyeballing the line, he was aware that his fence might encroach onto his neighbor's property but was not concerned because he was bearing the cost of the fence and improvement to his property.

Subsequent to Callahan's survey in April 2008 and fence installation in the summer of 2008, Matthew Riggs (“Riggs”) purchased the land directly south of and contiguous with Callahan's property. Riggs sought to install a dog fence along the northern boundary of his parcel and the southern boundary of Callahan's parcel. In preparation for installing the fence, Riggs located three of the four corner pins of his property after September 2008. He was unable to locate his northeast (Callahan's southeast) corner pin. Riggs then performed basic calculations and concluded that Callahan's fence encroached on Riggs's land by up to nine feet in some places.

Because of his own observations about the location of Callahan's fence, in 2009, Riggs hired Steele, who had performed the 2008 survey on Callahan's property, to survey Riggs's newly purchased land. When retained to perform the survey for Riggs, Steele was unaware that Riggs's property was contiguous with Callahan's and did not recall that he had surveyed Callahan's property only eighteen months prior to his survey for Riggs.

While conducting the 2009 survey for Riggs, Steele was unable to locate a pin for Riggs's northeast (Callahan's southeast) corner of the property and set a new pin in that location. Steele testified that he was unable to precisely locate the pin because of an overgrowth of wild honeysuckle in the northeast corner of Riggs's property. Tr. p. 55. Evidence indicates that the new pin Steele set was six to seven inches south of the pin he had previously located in his 2008 survey for Callahan. Tr. p. 56.

Callahan testified that he used neither pin as the starting point from which he eyeballed the line to erect the fence; rather, he used the “wooden stakes that had orange tape across the top of it” placed in the ground by Steele in 2008. Tr. p. 8. Callahan testified that the company he employed to erect the fence “eyeballed the line, the same as I had and they put in a fence for us.” Tr. p. 9. At trial, both Callahan and Steele referred to a concrete mass with orange paint as being near a boundary marker. Steele had marked this piece of concrete as a reference point when setting the new pin in 2009. Steele testified that the true boundary marker at that corner was the location marked on the 2008 survey, which he stated was the “Exist LP. in Concrete.” When initially confronted by Riggs with the proposition that Callahan's fence encroached onto Riggs's property, Callahan testified that he told Riggs: [S]ince we eyeballed it because we didn't have the entire line marked, at most it might be a foot over the line.” Tr. p. 76.

In late 2009, Riggs and Callahan jointly hired James David Myers (“Myers”) to rectify the discrepancy in the surveys conducted by Steele. While conducting this third survey, Myers found an iron pipe, which he referred to as the “Crowley pipe” at the southeast corner of Callahan's property. Tr. p. 29. This pipe, which Myers described as “significantly better and closer to the record distances shown,” was not indicated specifically as the Crowley pipe on either survey conducted by Steele. Tr. p. 30. Myers indicated that his company “excavated and found the Crowley pipe just below the surface.” Tr. p. 30. However, Myers was unable to state whether the Crowley pipe was the “Exist. LP. in Concrete” indicated by Steele in his 2008 survey of Callahan's property. Myers testified that the terms “pin” or “pipe” are interchangeable when referring to monuments intended to serve as boundary markers. Tr. p. 45. Myers testified that he found two markers near Callahan's southeast corner and the distance between the Crowley pipe and the iron pin set by Steele in 2009 was between six and seven inches. Myers also testified that Steele's surveys were deficient in that they failed to show both measured (ones taken by a surveyor during the performance of a survey) and recorded (ones provided from written evidence such as previously-conducted surveys, deeds, etc.) distances on the surveys and that both surveys lacked a surveyor's report. Tr. pp. 33, 34, 37, 38. Subsequent to notification by the Myers survey that the fence Callahan had erected was encroaching onto Riggs's property by between eight and ten feet, Callahan had the fence moved. Tr. p. 14.

On November 15, 2010, Callahan filed a small claims complaint against Steele in Vigo Superior Court alleging Steele negligently performed the survey in 2008 and that Callahan incurred damages as a result of Steele's negligence. The matter was set for a bench trial for September 1, 2011. On the day of the trial, Steele filed a motion to dismiss alleging that the two-year statute of limitations for actions against surveyors had expired.

On September 29, 2011, the trial court issued its judgment in favor of Callahan. As to Steele's motion to dismiss, the trial court applied the statute of limitations as an occurrence based statute, finding that “the damage occurred when Callahan's neighbor contracted with Steele to have his property surveyed in November 2009 and subsequently informed Steele of the discrepancies.” Appellant's App. p. 7. Therefore, the trial court denied Steele's motion to dismiss.

In its findings, the trial court found that Steele's surveys were inconsistent and proximately caused Callahan and Riggs to incur the expense of the additional survey by Myers. The trial court entered judgment for Callahan in the amount of $4,000, which included $400 for Steele's 2008 survey, $2,255 for one-half of the Myers survey, $989 to move Callahan's fence, and $356 for related landscaping.2 Finally, the trial court denied Callahan's request for attorney fees. Steele now appeals the denial of the motion to dismiss as untimely, the finding that the inconsistencies in his surveys proximately caused the need for the third survey, and the damages awarded to Callahan. Callahan cross-appeals the denial of his request for attorney fees.

Standard of Review

When a trial court enters findings sua sponte, as it did in this case, we use a two-step standard of review to determine first, whether the evidence supports the findings and next, whether the findings support the judgment. Humphries v. Abies, 789 N.E.2d 1025, 1030 (Ind.Ct.App.2003) (citing Smith v. Brown, 778 N.E.2d 490, 494 (Ind.Ct.App.2002)). We consider only evidence most favorable to the judgment and all reasonable inferences drawn therefrom. Id. We will not reweigh evidence nor reassess the credibility of witnesses. Id. Sua sponte findings control only the issues they cover, whereas a general judgment controls as to the issues upon which there are no findings. Tracy v. Morrell, 948 N.E.2d 855, 862 (Ind.Ct.App.2011). A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. at 862. When a claim is tried by the trial court without a jury, “the court on appeal shall not set aside the findings or judgment unless clearly erroneous.” Ind. Trial Rule 52(A). Therefore, a challenger to a judgment bears a heavy burden and must show that the trial court's findings were clearly erroneous.

The clearly erroneous standard is defined according to whether the trial court's judgment was negative or adverse. Garling v. Ind. Dep't of Natural Res., 766 N.E.2d 409, 411 (Ind.Ct.App.2002). A...

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