Robert Walke and Karen Walke v. Kitley Law Office, P.C. ( 2013 )


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  •  Pursuant to Ind. Appellate Rule 65(D), this
     Memorandum Decision shall not be
     regarded as precedent or cited before any                                   Oct 07 2013, 6:07 am
     court except for the purpose of establishing
     the defense of res judicata, collateral
     estoppel, or the law of the case.
    
    
    
    ATTORNEY FOR APPELLANTS:                           ATTORNEYS FOR APPELLEE:
    
    SCOTT A. WEATHERS                                  MICHAEL E. BROWN
    The Weathers Law Office, P.C.                      Kightlinger & Gray, LLP
    Indianapolis, Indiana                              Indianapolis, Indiana
    
                                                       CRYSTAL G. ROWE
                                                       Kightlinger & Gray, LLP
                                                       New Albany, Indiana
    
    
    
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    ROBERT WALKE and KAREN WALKE,                      )
                                                       )
           Appellants-Plaintiffs,                      )
                                                       )
                   vs.                                 )       No. 49A02-1304-CT-291
                                                       )
    KITLEY LAW OFFICE, P.C.,                           )
                                                       )
           Appellee-Defendant.                         )
    
    
                         APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable David J. Dreyer, Judge
                                 Cause No. 49D10-1201-CT-3779
    
    
    
                                             October 7, 2013
    
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    CRONE, Judge
                                           Case Summary
    
           Robert and Karen Walke live on the west side of Wishmeyer Lane across from David
    
    and Sandra Comstock. The Comstocks brought a lawsuit against the Walkes seeking to
    
    permanently enjoin them from using Wishmeyer Lane, and the Walkes hired Kitley Law
    
    Office, P.C., to represent them. The Comstocks prevailed in their lawsuit, and the Walkes
    
    were permanently enjoined from using Wishmeyer Lane.
    
           The Walkes hired new counsel and sued Kitley for legal malpractice. Kitley filed a
    
    motion for summary judgment, arguing that any malpractice did not cause the Walkes to lose
    
    the lawsuit because there were no legal theories upon which they could have prevailed. The
    
    trial court granted Kitley’s summary judgment motion.
    
           The Walkes appeal the trial court’s grant of summary judgment in favor of Kitley.
    
    They argue that there is a genuine issue of material fact as to whether they would have
    
    prevailed in the underlying lawsuit had Kitley effectively represented them on theories of
    
    prescriptive easement and public road. We conclude that the Walkes waived their claim for
    
    failure to present a cogent argument. Waiver notwithstanding, we conclude that the Walkes
    
    failed to establish that there is a genuine issue of material fact as to whether they would have
    
    prevailed in the underlying lawsuit based on theories of prescriptive easement and public
    
    road. Therefore, we affirm.
    
                                   Facts and Procedural History
    
           The facts most favorable to the Walkes, the nonmoving parties, are that in 2009, the
    
    Walkes hired Kitley to defend them in the underlying lawsuit filed by their neighbors, the
    
    
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    Comstocks, in which the Comstocks sought a permanent injunction preventing the Walkes
    
    from using Wishmeyer Lane as a means of ingress and egress. The background facts in the
    
    underlying case are that the Walkes and the Comstocks lived in Marion County on the north
    
    side of Brookville Road/Highway 52, with Wishmeyer Lane lying between their houses. The
    
    Comstocks lived on the east side of Wishmeyer Lane, and the Walkes lived on the west side.
    
    Although the Walkes’ property fronted Brookville Road, there was no vehicular access to it
    
    in 2009, and the Walkes used Wishmeyer Lane to access their driveway.
    
           The Comstocks purchased their home in 1987 or 1988, but that purchase did not
    
    include Wishmeyer Lane. Nevertheless, the Comstocks maintained the road, removing snow
    
    and cutting the grass around it. In 1991, the Comstocks purchased Wishmeyer Lane by deed.
    
    They had a survey performed and recorded to establish the boundaries of their property
    
    pursuant to Indiana Code Section 36-2-12-10 (legal surveys). Since that time, the Comstocks
    
    have maintained and paid taxes on Wishmeyer Lane. John and Mary Nelson owned the
    
    property on the west side of Wishmeyer Lane. They used Wishmeyer Lane with the
    
    Comstocks’ permission.
    
           In April 1998 or March 2003, the Walkes purchased the Nelsons’ property.1 The
    
    Walkes did not claim ownership of Wishmeyer Lane. The Walkes used Wishmeyer Lane
    
    with the Comstocks’ permission. At some point, the Walkes asked the Comstocks for
    
    permission to use the property lying between the Walkes’ home and Wishmeyer Lane. The
    
    
    
           1
             The Walkes’ answer and counterclaim stated that they purchased their property in March 2003.
    However, Karen Walke testified that they purchased it April 1998.
    
    
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    Comstocks granted them permission and did not erect a fence around their property. Both the
    
    Comstocks and the Walkes mowed the grass in this area.
    
           Two other residents used Wishmeyer Lane to access their property. These residents
    
    had dedicated easements to use the road. The Comstocks never gave the Nelsons or the
    
    Walkes a recorded easement.
    
           In 2006, the Walkes erected a chain-link fence on the east side of their property. The
    
    Walkes petitioned the Indiana Department of Transportation (“INDOT”) for permission to
    
    construct a driveway from their home to Brookville Road. In August 2008, INDOT denied
    
    their request because their property already had access to Brookville Road.
    
           In August 2009, the Comstocks filed a lawsuit against the Walkes, seeking a
    
    permanent injunction preventing the Walkes from using Wishmeyer Lane. In July 2010, the
    
    trial court in that case concluded that the Comstocks were fee simple title owners of
    
    Wishmeyer Lane and that the Walkes had failed to present evidence to establish either a
    
    prescriptive easement or an easement of necessity. The trial court permanently enjoined the
    
    Walkes from using Wishmeyer Lane, effective thirty days after entry of the judgment.
    
           The Walkes again petitioned INDOT to build a driveway from their house to
    
    Brookville Road. INDOT denied their request because the proposed driveway did not meet
    
    the required separation distance for Brookville Road. The Walkes dismissed Kitley and hired
    
    new counsel. The Walkes filed a motion to correct error in the underlying suit, arguing that
    
    their property was landlocked absent the ability to use Wishmeyer Lane, and therefore the
    
    judgment regarding the easement of necessity was in error. They also moved to stay
    
    
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    enforcement of the injunction until INDOT granted them permission to build a driveway and
    
    construction of it was complete. On September 7, 2010, the trial court denied the Walkes’
    
    motion to correct error but stayed enforcement of the injunction pending appeal or receipt of
    
    permission from INDOT to build a driveway and completion thereof. The Walkes chose not
    
    to appeal. Eventually, INDOT gave them permission to build a new driveway. On March
    
    27, 2011, they moved to lift the stay.
    
           On January 30, 2012, the Walkes filed the present legal malpractice lawsuit against
    
    Kitley, alleging that its representation of the Walkes in the Comstocks’ lawsuit against them
    
    fell below the applicable standard of care constituting a breach of duty that proximately
    
    caused them to incur damages. Kitley filed its answer and a motion for summary judgment.
    
    Kitley argued that it was entitled to summary judgment because the Walkes could not
    
    establish that any breach of duty caused their loss in the underlying case; that is, the Walkes
    
    could not satisfy the requirements for a prescriptive easement or easement by necessity.
    
    Appellants’ App. at 18-32.
    
           On December 14, 2012, the Walkes filed their opposition to Kitley’s motion for
    
    summary judgment, arguing that there was a genuine issue as to whether competent
    
    representation would have resulted in judgment in favor of the Walkes based on prescriptive
    
    easement or public road theories. Id. at 113-17. The Walkes designated an affidavit from
    
    attorney Steven K. Huffer, which reads,
    
           5. I also performed my own investigation by visiting the subject property,
           taking photographs, and interviewing a witness, Katherine Wilkerson, age 93,
           who has resided just south of the subject premises since 1957 and is Mr.
           Walke’s maternal grandmother.
    
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    6. …. [Wishmeyer Lane] travels North between the properties for perhaps
    300 yards, across a railroad track, to which point [it is] paved. North of the
    railroad track the roadway loses its paved character and continues past a
    residence on the west side, then doglegs right past a parcel of land where
    firewood is apparently stored and trucks are parked, and past some old garages
    or dwellings which have now fallen into disrepair. The photographs I took on
    my visit to the subject property are attached hereto as Exhibit “C” collectively.
    
    7. … Ms. Wilkerson confirms that Wishmeyer Lane has been so marked
    since 1957, and that auto traffic has freely used Wishmeyer Lane since that
    time to access the current Walke parcel and parcels to the North. ….
    
    8. … Wishmeyer Lane at one time accessed a railroad terminal, the building
    which had been used for [it] in the distant past having apparently burned down
    in 2003. It also has accessed a trash dump which formerly existed north of the
    railroad track.
    
    ….
    
    12. It is my opinion that as of April 17, 1991, when Mr. Comstock acquired
    title to the fee of the land which lies under Wishmeyer Lane, the Walkes’ right
    to access their land across Wishmeyer Lane had already vested under either of
    two legal theories. Either Wishmeyer Lane had become a public road under
    the principles outlined in [Fenley Farms v. Clark, 
    404 N.E.2d 1164
     (Ind. Ct.
    App. 1980)], or there was an easement by prescription in favor of the Walke
    parcel as the dominant tenement and with the parcel underlying Wishmeyer
    Lane as the servient tenement. The use of the land by the Walkes and their
    predecessors in title, and the public in general, across Wishmeyer [L]ane for
    the purpose of ingress and egress to U.S. Hwy. 52 had been open and notorious
    and under claim of right for well in excess of 20 years by April 17, 1991, and a
    competent attorney representing the Walkes could have established at least a
    prima facie case of prescriptive easement under the standards set forth in
    [Shields v. Taylor, 
    976 N.E.2d 1237
     (Ind. Ct. App. 2012)].
    
    13. Mr. Comstock took title to the land underlying Wishmeyer Lane subject to
    the facts and claims a visual inspection would have revealed, and a casual
    inspection would have revealed a road, marked with a county road sign, which
    serviced not only the Walke property but additional properties to the north.
    Mr. Comstock took subject to the rights of others, including the Walkes, to
    travel across Wishmeyer Lane.
    
    
    
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          14. A reasonably competent attorney handling [the underlying lawsuit] for the
          Walkes would have presented evidence at the trial court of [the underlying
          lawsuit] of the public’s and the Walkes’ and their predecessors’ use of
          Wishmeyer Lane dating back to the 1950s, would have presented as a witness
          Ms. Wilkerson or someone with a similar history of residence in the nearby
          vicinity, would have presented aerial photographs and phone directories from
          the 1950s and 1960s, which could have been authenticated as public records or
          as a fair and accurate depiction of the area at the time they were taken by
          anyone who lived in the area at the time (such as Ms. Wilkerson). Photographs
          similar to the photographs I took could have been authenticated and presented
          as evidence. A surveyor or real estate attorney could have been called as a
          witness to explain the title history of the surrounding area. It is my
          understanding that no such evidence was presented, and the trial court was
          compelled to find against the Walkes and declare that they had no right of
          access to Wishmeyer Lane. Had the evidence described above been presented
          at the trial, it is significantly more likely than not [that] the Walkes would have
          prevailed.
    
          15. It is also my understanding that the “public road” theory was not pled by
          [Kitley] and I am of the opinion that such a legal theory would have been
          advanced by a reasonably competent attorney for the Walkes. I am aware of a
          1991 letter from the City of Indianapolis Department of Transportation which
          indicates that Wishmeyer Lane is not a public road, but this letter is hearsay
          and on its face is qualified and does not appear to consider all of the
          compelling evidence to the contrary.
    
    Id. at 119-23. Huffer attached aerial photographs of Wishmeyer Lane taken in 1956 and
    
    1962, telephone directories for 1968 and 1970 showing use of Wishmeyer Lane addresses,
    
    and Google maps.
    
          On January 2, 2013, Kitley filed a motion to strike certain portions of Huffer’s
    
    affidavit, which the trial court denied. On March 6, 2012, the trial court granted summary
    
    judgment to Kitley. The Walkes appeal.
    
    
    
    
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                                     Discussion and Decision
    
           “Summary judgment is appropriate only when there are no genuine issues of material
    
    fact and the moving party is entitled to a judgment as a matter of law.” Quezare v. Byrider
    
    Fin., Inc., 
    941 N.E.2d 510
    , 513 (Ind. Ct. App. 2011), trans. denied; Ind. Trial Rule 56(C).
    
                   When reviewing a grant or denial of a motion for summary judgment
           our well-settled standard of review is the same as it is for the trial court:
           whether there is a genuine issue of material fact, and whether the moving party
           is entitled to judgment as a matter of law. Summary judgment should be
           granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that
           there is no genuine issue of material fact and the moving party deserves
           judgment as a matter of law. All factual inferences must be construed in favor
           of the non-moving party, and all doubts as to the existence of a material issue
           must be resolved against the moving party.
    
    Kroger Co. v. Plonski, 
    930 N.E.2d 1
    , 4-5 (Ind. 2010) (citations omitted). “In reviewing a
    
    trial court’s ruling on a motion for summary judgment, we may affirm on any grounds
    
    supported by the Indiana Trial Rule 56 materials.” Kozlowski v. Lake County Plan Comm’n,
    
    
    927 N.E.2d 404
    , 408 (Ind. Ct. App. 2010), trans. denied.
    
                  To prove a legal malpractice claim, a plaintiff must establish: 1)
           employment of the attorney (duty); 2) failure of the attorney to exercise
           ordinary skill and knowledge (breach); 3) proximate cause (causation); and 4)
           loss to the plaintiff (damages). It is appropriate for a trial court to grant an
           attorney summary judgment on a legal malpractice claim if the designated
           evidence negates at least one of these elements. In Indiana, an attorney’s duty
           is generally to exercise ordinary skill and knowledge.
    
    Flatow v. Ingalls, 
    932 N.E.2d 726
    , 729 (Ind. Ct. App. 2010), trans. denied (2011) (citations
    
    and quotation marks omitted).
    
           The trial court granted Kitley’s summary judgment motion on the issue of proximate
    
    cause. “Proximate cause requires the plaintiff to show at a minimum that the outcome of the
    
    
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    underlying litigation would have been more favorable but for the attorney’s negligence. Such
    
    proof typically requires a trial within a trial.” Id (citation omitted). Here, the Walkes were
    
    required to establish a genuine issue of material fact that but for Kitley’s errors in
    
    representation, they would have prevailed on theories of prescriptive easement and public
    
    road. The Walkes contend that Huffer’s affidavit established that there are genuine issues of
    
    material fact on the issue of causation under both theories. However, the Walkes merely
    
    provide statements of law and reproduce portions of Huffer’s affidavit and fail to provide any
    
    actual argument as to how the facts support their position in light of the applicable legal
    
    principles. Accordingly, they have waived their claim for review. See Wenzel v. Hopper &
    
    Galliher, P.C., 
    830 N.E.2d 996
    , 1004 (Ind. Ct. App. 2005) (failure to present cogent
    
    argument constitutes waiver of issue for appellate review); Ind. Appellate Rule 46(A)(8)(a).
    
           Waiver notwithstanding, the Walkes’ claims are without merit. First, Huffer’s
    
    affidavit did not establish that there is a genuine issue as to whether competent representation
    
    on the theory of prescriptive easement would have succeeded. Prescriptive easements “are
    
    not favored in the law,” and therefore “the party claiming a prescriptive easement must meet
    
    stringent requirements.” Wilfong v. Cessna Corp., 
    838 N.E.2d 403
    , 406 (Ind. 2005)
    
    (citations, brackets, and quotation marks omitted).        Pursuant to our supreme court’s
    
    reformulation of the elements of prescriptive easement, to prevail on such a claim, “the
    
    claimant must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and
    
    
    
    
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    (4) duration.” Id.2 Further, a prescriptive easement may not be acquired by another person
    
    by adverse use unless the use is uninterrupted for at least twenty years. Ind. Code § 32-23-1-
    
    1. Use of the land is not adverse if the use was permissive. Shields, 976 N.E.2d at 1247.
    
            In his affidavit, Huffer opined that as of April 17, 1991, when the Comstocks acquired
    
    title to the land on which Wishmeyer Lane is situated, a prescriptive easement in favor of the
    
    Walke parcel had already vested. However, the twenty-year period required to establish a
    
    prescriptive easement did not commence against the Comstocks until they acquired title to
    
    the land in 1991. See Downing v. Owens, 
    809 N.E.2d 444
    , 450 n.3 (Ind. Ct. App. 2004)
    
    (“[A]n adverse possessor of land, albeit in fee simple or by easement, may not tack the
    
    servient owner’s knowledge and acquiescence of the possessor’s use of the land with that of
    
    the owner’s predecessor(s)-in-interest’s for purposes of proving use of the land for the
    
    twenty-year prescriptive period.”).
    
            Second, Huffer’s affidavit also failed to establish that there is a genuine issue as to
    
    whether competent representation on the theory of public road would have prevailed.
    
                    Ind. Code § 8-20-1-15 previously provided that a road could become a
            public highway if used as such for twenty years or more. That portion of the
            statute was removed when it was amended in 1988; however, we may still hold
            that the public accepted a street by usage if the street was used as a public
            street for twenty years prior to 1988. If the street became a public street
            before 1988, then the public has a vested right in that street, and the vested
            right was not eliminated by the amendment of the statute. Under this statute,
            use is the sole test, though frequency of use or the number or [sic] users is
            unimportant. It is enough if it is free and common to all who have occasion to
            use it as a public highway.
            2
              Prior to Wilfong, a party claiming the existence of a prescriptive easement was required to show “an
    actual, hostile, open, notorious, continuous, uninterrupted adverse use … under a claim of right.” Wilfong, 838
    N.E.2d at 405.
    
    
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    Jackson v. Bd. of Comm’rs of Cnty. of Monroe, 
    916 N.E.2d 696
    , 703 (Ind. Ct. App. 2009),
    
    (citations and quotation marks omitted), trans. denied (2010).
    
           In Fenley Farms, upon which Huffer relied in his affidavit, all those who had occasion
    
    to use the road included more than the individuals who resided along the road. There, the
    
    road led to a ferry landing on the Ohio River, and members of the public used the road to get
    
    to the ferry and cross the Ohio River. 404 N.E.2d at 1168. Here, there is no evidence that
    
    persons other than those who lived on the road used it. The aerial photographs and Google
    
    maps that Huffer submitted with his affidavit merely show that a road existed and continues
    
    to exist, not that members of the public used the road. See Jackson, 916 N.E.2d at 703 (“The
    
    roads appearance on various maps, by itself, shows only that it existed, not that the public
    
    used the road.”). Likewise, the fact that some property owners had a Wishmeyer Lane
    
    address does not show public use of the road. Further, there is insufficient evidence
    
    regarding the railroad terminal or trash dump to draw any reasonable inferences regarding
    
    how and when Wishmeyer Lane could have been used in conjunction therewith. Finally, Ms.
    
    Wilkerson’s statement to Huffer regarding the public’s use of Wishmeyer Lane merely
    
    relates that people used the road to get to the properties adjacent to it. It is unclear how she
    
    would know whether or not the previous owner(s) of Wishmeyer Lane had given those
    
    property owners permission to use the road.
    
           Accordingly, the Walkes have failed to establish a genuine issue as to whether they
    
    would have prevailed on theories of prescriptive easement or public road had Kitley pursued
    
    
    
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    those strategies. As such, we conclude that the trial court did not err in granting summary
    
    judgment in favor of Kitley.
    
          Affirmed.
    
    BARNES, J., and PYLE, J., concur.
    
    
    
    
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