Kathryn Arnold v. Dennis Arnold (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Apr 15 2016, 8:25 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffry G. Price Patrick J. Roberts
Coleman Beckley Sharon L. Breitenbach
Peru, Indiana Roberts Law Firm
Peru, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kathryn Arnold, April 15, 2016
Appellant-Defendant/Counterclaimant, Court of Appeals Case No.
52A02-1511-PL-2062
v. Appeal from the Miami Superior
Court
Dennis Arnold, The Honorable J. David Grund,
Appellee-Plaintiff/Counterclaim Judge
Defendant Trial Court Cause No.
52D01-1310-PL-352
Crone, Judge.
[1] Kathryn Arnold appeals the trial court’s judgment in favor of Dennis Arnold’s
ejectment claim and against her adverse possession counterclaim. We affirm.
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[2] In 1974, William and Esther Arnold conveyed property via warranty deed to
their son Dennis and his wife Jo Ann, subject to a life estate. William died in
1978 and Esther in 1979. After Esther’s death, Dennis and Jo Ann divided the
property into two tracts and lived in a home on one of the tracts. They allowed
Kenneth and Kathryn Arnold, Dennis’s brother and sister-in-law, to live rent-
free in William and Esther’s former home on the other tract. Kenneth died in
2004, and the home fell into disrepair. In 2006, Dennis sent contractors to
work on the home, and Kathryn “drove them off.” Tr. at 15. In 2011, Dennis
sent to Kathryn a written demand to vacate the property, which she ignored.
[3] In 2013, Dennis filed suit to eject Kathryn from the property. She filed a
counterclaim for adverse possession, which requires the claimant to prove by
clear and convincing evidence that she demonstrated intent to claim full
ownership of the property “superior to the rights of all others, particularly the
legal owner[,]” and performed actions “sufficient to give actual or constructive
notice to the legal owner of [her] intent and exclusive control” of the property
for ten years, among other things. Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.
2005). After a bench trial, the trial court entered judgment in favor of Dennis’s
claim and against Kathryn’s counterclaim. Kathryn appealed.
[4] On appeal, we consider only the evidence favorable to the trial court’s findings
and judgment and will not reweigh the evidence or assess witness credibility.
Paul v. Stone Artisans, Ltd., 20 N.E.3d 883, 886 (Ind. Ct. App. 2014). “We will
not disturb the trial court’s findings or judgment unless they are clearly
erroneous.” Id. In its judgment, the trial court found that Kenneth and
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Kathryn lived in the home with Dennis and Jo Ann’s permission and
acquiescence. Appellant’s App. at 9 (finding 6). This finding, which is
supported by Dennis’s testimony, is dispositive of Kathryn’s appeal, which
focuses on whether she substantially complied with the statutory requirement to
pay taxes on the property. See Lanham v. Marley, 475 N.E.2d 700, 706 (Ind. Ct.
App. 1985) (affirming denial of adverse possession claim where claimants used
property “with the permission, knowledge and consent of the fee simple
owners”: “Absent a showing of hostile use, the Lanhams’ adverse possession
claim properly was denied.”). 1 Therefore, we affirm.
[5] Affirmed.
Najam, J., and Robb, J., concur.
1
The record establishes that Kathryn did not manifest an intent to exclude Dennis from the property until
2006 at the earliest, which was less than ten years before he filed for ejectment. See Estate of Mark v. H.H.
Smith Co., 547 N.E.2d 796, 800 (Ind. 1989) (“It is not enough that the occupier feels or thinks he is the owner
or even declares he is the owner. His claim of ownership must be based on some ground justifying that
conclusion and it must be communicated to the true owner that the occupier makes such a claim that is
adverse or hostile to his ownership.”).
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