Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson , 50 N.E.3d 361 ( 2016 )

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Travis Bonnell
J. Jim J. Brugh
Indianapolis, Indiana Logansport, Indiana
3511 the Feb 16 2016, 9:27 am
Santana émpreme Qtuurt
No. 66503-1509—PL-530
TOM BONNELL,
Appellant (Defendant below),
RUBY A. COTNER, DOUGLAS WAYNE
COTNER, ARTHUR J. JOHNSON, JIMMY J.
JOHNSON, and JERRY L. JOHNSON,
Appellees (Plaintzfflv below).
Appeal from the Pulaski County Circuit Court, No. 66C01-1208—PL-11
The Honorable Patrick B. Blankenship, Special Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 66A03-1410-PL-372
February 16, 2016
Massa, Justice.
Tom Bonnell purchased a 35-foot-wide strip of land from the Pulaski County Board of
Commissioners, and Ruby and Douglas Cotner brought this action to quiet title, claiming that they
had previously acquired ownership of a section of that land via adverse possession. The trial court
disagreed, finding that the prior sale of the Strip by tax deed extinguished any interest the Cotners
may have had. Nevertheless, the trial court awarded the Cotners a prescriptive easement on certain
outbuildings erected on the Strip, and both parties appealed. We affirm the denial of the Cotners’
adverse possession claim, and reverse the grant of a prescriptive easement, finding that the sale of
the Strip by tax deed extinguished any and all interest the Cotners previously possessed.
Facts and Procedural History
In 1948, Leo and Ruth Cottingham subdivided their seven~acre parcel in Pulaski County,
Indiana into eleven residential lots. Lot 1 consisted of a two—acre block on the south end of the
parcel, while the remaining ten lots were all equal half-acre rectangles, defined as “One hundred
(100) feet by Two hundred Fourteen and One-half (2141/2) feet.” Plaintiff s EX. G at 20;
Defendant’s Ex. 2. The original survey accompanying the subdivision also accounts for State
Highway 119, and it marks the western boundary of these lots as being at the center of the State’s
right of way. There is also an ancient farm fence 214 feet from the eastern edge of the State’s
right of way. There is thus a 35-foot gap in between the edge of the parcels and the fence on the
eastern edge (“the Strip”), which was not a part of the official parcel division; nevertheless, the
owners of Lots 2 through 11 treated their respective portions of the Strip as part of their property,
and they believed the ancient farm fence marked the property line. Ruby Cotner purchased Lot 8
in 1997.1 The previous owners of Lot 8 constructed a barn in 1968, and the Cotners expanded
upon it with a lean—to in 2010; a portion of these buildings encroaches some distance onto the Strip.
Shirley Johnson purchased Lot 9 in 1990, from whom the Johnson Plaintiffs (her sons) obtained title in
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2009. Although the Johnsons were initially plaintiffs in this case, they quitclaimed their interest in Lot 9
to the Cotners during the pendency of this action; therefore, the Cotners are the only interested party on
appeal.
The Strip was originally included by title with the larger farm field to the east; however, it
was divided off Via quitclaim deed in 1985. The State subsequently sold the Strip twice Via tax
sale; the first in 1993 to Jeff Kopkey, and the second in 2011 to the Pulaski County Board of
Commissioners, who then sold the Strip to Bonnell in 2012. When he bought it, Bonnell believed
the Strip was located on the eastern side of the ancient fence. Upon a subsequent survey, however,
he discovered the Strip was located effectively in the backyards of the Cottingham Subdivision
owners. Bonnell then proposed a sale of each section of the Strip to the property owner who had
been occupying the land, at $890 apiece. All the owners eventually reached an agreement with
Bonnell except the Johnsons and the Cotners, who asserted ownership of their section of the Strip
by adverse possession, and filed this suit to quiet title. Bonnell defended on the grounds the
Cotners had not demonstrated they paid taxes on the disputed portion of the Strip and thus could
not perfect their adverse possession claim under Indiana law. And in any event, the Indiana Tax
Deed Statutes, Ind. Code chs. 6-1.1-24 and —25 (2014), mandate that the sale of any property by
tax deed severs all prior claims of ownership, including ownership by adverse possession.
The trial court agreed with Bonnell, finding since title to the Strip ran separately at all
times, the Cotners could not reasonably believe they were paying taxes on their portion of the
Strip, and thus had not perfected their claim of adverse possession. The trial court went on to find,
as a matter of first impression, that even if the Cotners’ adverse possession claim had been
perfected, the subsequent tax sales of the Strip divested the Cotners of their interest. However, the
trial court also determined sua sponte that the Cotners should receive a prescriptive easement for
use of their outbuildings encroaching onto the Strip.
Both parties appealed, and a unanimous panel of our Court of Appeals reversed and
remanded. Bonnell v. Cotner, 35 N.E.3d 275, 284 (Ind. Ct. App. 2015). The panel found the
Cotners showed they paid taxes on the outbuildings that encroached upon the Strip, which was
sufficient to establish good faith, and the subsequent tax sales could not divest an adverse possessor
of their interest, because otherwise “vested adverse holders may become divested of their property
for failing to pay taxes despite reasonably believing in good faith that they are paying the
appropriate taxes due.” & at 283 (emphasis in original).
We granted transfer, thus vacating the Court of Appeals opinion below. Bonnell V. Cotner,
37 N.E.3d 493 (Ind. 2015) (table); Ind. Appellate Rule 58(A). We now affirm the trial court with
respect to the denial of title to the Cotners by adverse possession, but reverse as to granting them
a prescriptive easement.
Standard of Review
The parties’ claims were tried without a jury; therefore, we “shall not set aside the findings
or judgment unless clearly erroneous.” Ind. Trial Rule 52(A). “Findings of fact are only clearly
erroneous if there is no factual support for them in the record whatsoever, either directly or by
inference.” Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts.” Woodmffv. Ind. Family
& Soc, Servs. Admin, 964 N.E.2d 784, 790 (Ind. 2012) (quoting Nichols v. Minnick, 885 N.E.2d
1, 3 (Ind. 2008)).
The Cotners Established Their Claim of Adverse Possession of the
Disputed Portion of the Strip.
As we explained in great detail in Fraley v. Minger, there are four traditional elements to
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adverse possession at common law: control, intent, notice, and duration. 829 N.E.2d 476, 486
(Ind. 2005). Bonnell does not dispute that the Cotners have established all of these elements with
respect to the disputed portion of the Strip. Rather, Bonnell relies on our holding in that,
pursuant to Indiana Code section 32-21-7-1 (2008), an adverse possessor is required to pay taxes
on the property claimed in order to perfect his or her interest, although substantial compliance is
sufficient, so long as “the adverse claimant has a reasonable and good faith belief that the claimant
is paying the taxes during the period of adverse possession.” Fraley, 829 N.E.2d at 493.2 Bonnell
claims the Cotners did not satisfy this requirement because they paid taxes on the encroaching
outbuildings only, and not on the entire disputed portion of the Strip.
We find the Cotners have satisfied the adverse possession tax statute. In Fraley we
expressly upheld our prior interpretation of this statutory adverse possession requirement from
Echterling V. Kalvaitis, including the following hypothetical where substantial compliance with
the adverse possession tax statute would exist:
An example might be where one has record title to Lot No. l and
has erected a building on that lot, which, twenty years later, is found
by some surveyor to be one foot over on an adjoining lot, No. 2—
the fact that the owner of Lot No. l was assessed for improvements
(the building) and real estate (Lot No. 1) would be sufficient to
comply with the statute as to payment of taxes.
Fraley, 829 N.E.2d at 490 (quoting Echterling v. Kalvaitis, 235 Ind. 141, 147, 126 N.E.2d 573,
575—76 (1955)). That precise scenario has occurred here: the Cotners’ predecessors-in-interest
were assessed tax on the barn beginning in 1968, and at least a portion of that building encroaches
upon the disputed portion of the That
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Strip. is sufficient to establish the Cotners perfected their
adverse possessory interest in the disputed area of the Strip as of 1978. Celebration Worship
Ctr. Inc. v. Tucker, 35 N.E.3d 251, 255 (Ind. 2015) (finding adverse possessor had substantially
complied with tax statute “because they believed the disputed real estate to be part of the side yard
of their lot 4ifor which they actually paid taxes.” (emphasis in original».
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Our General Assembly subsequently incorporated the holding of Fraley into Indiana Code section 32-21-
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7-1. 2006 Ind. Acts 3606 (clarifying that the adverse possessor need only pay that tax “that the adverse
possessor or claimant reasonably believes in good faith to be due”).
The Subsequent Tax Sales of the Strip Defeat the Cotners’ Claim of
Ownership by Adverse Possession.
Perfecting an adverse possessory interest, however, does not automatically entitle the
Cotners to judgment in their favor. “[T]he doctrine of adverse possession entitles a person without
title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent,
notice, and duration . . .
.”
My, 829 N.E.2d at 486 (emphasis added). Acquiring ownership by
adverse possession does not render operative all the rights and responsibilities of the record title
holder; indeed, as demonstrated by the facts of this case, the adverse possessor would first have to
become acknowledged owner of the
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succeed in an action to quiet title in order to the legally
property. App. at 22—26; Ind. Code § 32-30-2-20 (2014) (listing an adverse possessor as one
type of plaintiff entitled to bring a quiet title action); Ind. Code § 32-30—3-17 (stating that the final
judgment in a quiet title action shall be entered by the county recorder in the “Quiet Title Record”).
Moreover, although the Cotners’ predecessors-in-interest had a good faith belief that they were
paying taxes on the disputed portion of the Strip, it is undisputed that they were not in fact paying
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those taxes. Accordingly, since the record title holder also failed to pay the requisite property
taxes, the entire Strip was subject to tax sale by Pulaski County. Ind. Code § 6-1.1-24-1(a),
(C)
“A purchaser at a tax sale receives a tax certificate evidencing a lien against the property
for the entire amount paid. The lien is superior to all other liens which exist at the time the
certificate is issued.” Calhoun v. Jennings, 512 N.E.2d 178, 181 (Ind. 1987) (citing Ind. Code
§6-1.1-24-9) (emphasis omitted). Any person may “redeem” the property within a statutory
period of up to one year after the date of sale.3 Ind. Code § 6—1.1—25-1, —4(a). Once the redemption
period expires, the tax certificate holder may petition the court for a tax deed to the property. Ind.
Code § 6—1.1-25-4.6(a). Our General Assembly has also twice stated that the tax deed “vests in
the grantee an estate in fee simple absolute, free and clear of all liens and encumbrances created
or suffered before or after the tax sale . . .
.” Ind. Code § 6-1.1-25-4(f), -4.6(g). There are a finite
number of ways to defeat a tax deed by appeal; claim of title by adverse possession is not among
them.4
The redemption amount is determined based on, among other things, the date of redemption, the amount
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3
of outstanding taxes and penalties, the initial minimum bid of the sale, and the ultimate purchase price.
Ind. Code § 6-1.1-25-2.
4
& Ind, Code § 6-1.1-25-16 (“A person may, upon appeal, defeat the title conveyed by a tax deed executed
under this chapter only if:
(1) the tract or real property described in the deed was not subject to the
taxes for which it was sold;
(2) the delinquent taxes or special assessments for which the tract or real
property was sold were paid before the sale;
(3) the tract or real property was not assessed for the taxes and special
assessments for which it was sold;
(4) the tract or real property was redeemed before the expiration of the
period of redemption (as specified in section 4 of this chapter);
(5) the proper county officers issued a certificate, within the time limited
by law for paying taxes or for redeeming the tract or real property, which
states either that no taxes were due at the time the sale was made or that
the tract or real property was not subject to taxation;
(6) the description of the tract or real property was so imperfect as to fail
to describe it with reasonable certainty; or
Because of the relative strength of a tax deed, there are also several layers of statutory
notice of the tax sale proceedings (and each such notice contains no less than fourteen mandatory
components). Ind. Code § 6-1.1-24-2; Ind. Code § 6-1.1-25-4.5. The county auditor is required
to post a copy of the first notice in the county courthouse at least 21 days prior to the initial tax
sale, publish the notice at least once a week for three consecutive weeks, Ind. Code § 6-1.1-24-3,
and further send a copy to “the owner of record.” Ind. Code § 6—1.1—24—4(a) (emphasis added).
Second, prior to the issuance of a tax deed, the purchaser must provide actual notice “to the owner
of record at the time of the sale and any person with a substantial property interest ofpublic record
in the tract or real property.” Ind. Code § 6-1.1-25-4.5(a) (emphasis added).
Here, although the Cotners’ predecessors-in-interest acquired ownership of the disputed
portion of the Strip in 1978, they did not seek to quiet title and formalize that ownership. Thus,
by statute, the Cotners were not entitled to any more than publication notice of the two tax sales in
1993 and 2011. And the very issuance of those tax deeds prima facie evidence of the validity
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is
of the notice given in those tax sales, evidence that has not been rebutted by the Cotners. Ind.
Code § 6-1.1-25-4.6(g) (“The deed is prima facie evidence of: (l) the regularity of the sale of the
real property described in the deed; (2) the regularity of all proper proceedings; and (3) valid title
in fee simple in the grantee of the deed”). There is also no evidence in the record that the Cotners
or anyone else contested the validity of those tax sales, as permitted by Indiana Code
w
section
6-1.1-25-16. Moreover, the statutory text is uncompromising: the Pulaski County Board of
Commissioners obtained “fee simple absolute” in the Strip in 2011, free and clear of any
encumbrances. Ind. Code § 6—1.1-25-4.6(g); Ind. Code § 6-1.1—25-14 (“An unrecorded
instrument does not affect the plaintiff’s title as established by the court’s [tax deed] decree”).
(7) the notices required by 1C 6-1.1-24-2, IC 6-1.1-24-4, and sections 4.5
and 4.6 of this chapter were not in substantial compliance with the manner
prescribed in those sections”)
Accordingly, under the plain text of the Tax Deed Statutes, in 1993 and again in 2011, the Cotners
were divested of their ownership interest based on adverse possession of the disputed section of
the Strip.
The Trial Court’s Award to the Cotners of a
Prescriptive Easement in the Barn was Clearly Erroneous.
We now turn to the trial court’s sua sponte award of a prescriptive easement to the Cotners
for their continued use of the outbuildings, based on the court’s conclusion that the cost of their
removal would “far exceed the value of the Defendant’s entire parcel, not just the portion upon
which the building encroaches.” App. at 20.
We begin by noting that the trial court was within its authority to consider awarding a
prescriptive easement sua sponte. The Cotners pleaded with particularity in their complaint all of
the elements of adverse possession, and “[t]he my formulation for adverse possession also
applies to prescriptive easements, save for those differences required by the differences between
fee interests and easements.” TLlcer, 35 N.E.3d at 257 (internal quotations omitted). The only
relevant difference here is the requisite statutory period of adverse use—20 years—before the
easement vested. Ind. Code § 32-23-1-1. The Cotners also specifically pleaded that the
outbuilding was erected in 1968, and that they and their predecessors-in-interest had exercised
exclusive control over the entire disputed portion of the Strip since that time. Moreover, in their
prayer for relief, the Cotners included the familiar catch-all of “all other relief appropriate under
the circumstances.” App. at 26. Therefore, there was sufficient evidence before the trial court to
determine the Cotners’ predecessors-in—interest had perfected a prescriptive easement in the
outbuilding as of 1988.
Unfortunately, this attempt by the trial court to craft an equitable remedy was unavailable
as a matter of law, again by operation of the Tax Deed Statutes. Indiana Code section 6-1.1-25-
4(f)(l) states unequivocally that for a prior
the easement
deed executed under
must be “shown by public records.”5
this chapter for real
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easement over property
property sold in a tax sale:
Ind.
to survive its sale
Code § 6-1.1-25-4(g)
(1)
extinguish an easement recorded before the date of the tax sale in the office of the recorder of the
by tax deed,
(“A tax
does not operate to
county in which the real property is located . . .
.” (emphasis added)). Thus, as with the Cotners’
claim of adverse possession, they cannot claim a prescriptive easement in the outbuilding because
that easement was never recorded, and was therefore extinguished with the first tax sale in 1993.6
Conclusion
After more than three years of litigation and two vigorous appeals, Mr. Bonnell now owns
a 35—foot—by—100—foot section of land in the Cotners’ backyard, predominately covered with a pole
barn, which Bonnell values at approximately $890. We affirm the denial of the Cotners’ claim of
adverse possession in the disputed portion of the Strip, and reverse the grant of a prescriptive
easement in the Cotners’ encroaching outbuildings.
Rush, C.J., and Dickson, Rucker, JJ., concur.
David, J ., did not participate.
5
Wenote that a counterpart of this provision appears in Indiana Code section 6-1.1-25-4.6(g), and it does
not specify that prior easements must be recorded in order to survive a tax sale of the property; however,
consistently. E
given that the scope of the two provisions is virtually identical, we are bound to read the two sections
Klotz v. Hog, 900 N.E.2d l, 5 (Ind. 2009) (“Statutes relating to the same general subject
matter are in part materia on the same subject and should be construed together so as to produce a
harmonious statutory scheme.” (internal quotations and alterations omitted».
6
Since the second tax deed was issued in 2011, the Cotners did not acquire a second prescriptive easement
in the outbuildings prior to the second tax sale, as the requisite 20 years of use had not accrued.
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