Darrin Lincoln, Sherri Lincoln, and Raymond Hartman v. Carlos Rico and Maria Guadalupe Rico (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 31 2020, 5:38 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Jeremy J. Grogg Stephen R. Snyder
Jared P. Baker Randall L. Morgan
Burt, Blee, Dixon, Sutton & Bloom, Snyder Morgan Federoff &
LLP Kuchmay LLP
Fort Wayne, Indiana Syracuse, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrin Lincoln, Sherri Lincoln, March 31, 2020
and Raymond Hartman, Court of Appeals Case No.
Appellants-Defendants, 19A-PL-1476
Appeal from the Kosciusko Circuit
v. Court
The Honorable Michael W. Reed,
Carlos Rico and Maria Judge
Guadalupe Rico, Trial Court Cause No.
Appellees-Plaintiffs 43C01-1702-PL-11
May, Judge.
[1] Darrin Lincoln, Sherri Lincoln, and Raymond Hartman (collectively,
“Lincolns”) appeal the trial court’s ruling permanently enjoining them from
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placing any obstruction on the property of Carlos Rico and Maria Guadalupe
Rico (collectively, “Ricos”). The Lincolns raise four issues on appeal, which
we revise and restate as one issue - whether the trial court improperly granted
the Ricos’ motion for permanent injunction. We affirm.
Facts and Procedural History
[2] The Ricos own real estate commonly known as 309 East Van Buren Street,
Leesburg, Indiana (“Rico Property”). A. Maxine McMillan and Charles G.
McMillian conveyed the Rico Property to the Ricos on November 10, 1989, via
Warranty Deed duly recorded in the Office of the Recorder of Kosciusko
County, Indiana. The November 10, 1989, Warranty Deed first described the
Rico Property as:
Commencing at a point 24 rods and 12 links west of the east
section line of Section 8, Township 33 North, Range 6 East, on
the north line of Van Buren Street in the Town of Leesburg,
thence north 24 rods and 12 links; thence east to a point 186 feet
west of the west line of the right-of-way of the Cincinnati,
Wabash and Michigan Railway Company (now Big Four
Railway); thence due south 24 rods and 12 links; thence west on
the north line of Van Buren Street to the place of beginning.
(Appellee Ex. 12 (hereinafter “First Description”).) Immediately thereafter, the
Warranty Deed stated:
The above described tract also being more particularly described
as follows:
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Part of the Northeast Quarter of Section 8, Township 33 North,
Range 6 East, Kosciusko County, Indiana, more particularly
described as follows, to wit:
Commencing at the point of intersection of the centerline of the
New York Central Railroad (Formerly the Cincinnati, Wabash
and Michigan Railway Co.) with the north right-of-way line of
Van Buren Street in the Town of Leesburg, Indiana; thence
West, on and along said north right-of-way line, a distance of
232.7 feet to the true point of beginning; thence continuing west,
on and along said north right-of-way line, a distance of 113.4 feet
to an iron pipe found; thence northerly, by an interior angle of 89
degrees 23 minutes 20 seconds, on and along a line established by
monuments found a distance of 386.5 feet (recorded 403.92 feet)
to an old wood corner post found: thence easterly, by an interior
angle of 89 degrees 36 minutes 20 seconds, on and along a line
established by an existing line fence, a distance of 116.0 feet to an
old wood corner post found, situated 232.7 feet west of the
centerline of said New York Central Railroad; thence southerly,
by an interior angle of 90 degrees 00 minutes 20 seconds, parallel
to the centerline of said railroad, a distance of 384.5 feet
(Recorded 403.92 feet) to the true point of beginning.
(Id. (hereinafter “Second Description”).) The First Description was copied
from the deed by which the McMillans acquired title. The Second Description
was derived from a survey performed by Jerry Walker in 1989.
[3] The Lincolns own real estate to the east of the Rico Property, commonly
known as 311 East Van Buren Street, Leesburg, Indiana (“Lincoln Property”).
Raymond Hartman moved onto the Lincoln Property in 1961. He
subsequently conveyed the Lincoln Property to Darrin Lincoln and Sherri
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Lincoln in 2016 via Warranty Deed. 1 A driveway runs near the area where the
eastern edge of the Rico Property meets the western edge of the Lincoln
Property. The Ricos owned and operated a landscape and lawn care business
on the north portion of the Rico Property. The Ricos utilized the driveway to
access their business facilities in the rear of their property.
[4] The Lincolns constructed a fence down the middle of the driveway in January
2017. The fence prevented the Ricos from accessing the driveway. The
driveway was the only improved roadway leading to the rear of the Rico
Property. Consequently, the Ricos began using an unfinished access route off
Old State Road 15 through an additional lot owned by the Ricos to access the
rear of the Rico Property. The access route was often muddy, causing the
Ricos’ vehicles and equipment to get stuck and damaged. The Ricos filed suit
on February 6, 2017, seeking preliminary and permanent injunctive relief and
damages. The court held a hearing on the Rico’s motion for preliminary
injunction on April 4, 2017, and the court entered a preliminary injunction on
April 20, 2017, ordering the Lincolns to remove the fence.
[5] On April 2, 2019, the court held a bench trial on the Ricos’ verified complaint
for permanent injunction and damages. After entry of the preliminary
injunction, the Ricos moved to a different residence. While they no longer
lived at the Rico Property or operated their business on the property at the time
1
Hartman retained a life estate in the Lincoln Property.
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of the bench trial, they still owned the Rico Property and wished to sell it.
After the bench trial, both sides submitted proposed findings of fact and
conclusions of law. On May 29, 2019, the court issued its findings of fact,
conclusions of law, and order enjoining the Lincolns
from placing any obstruction on the Rico Property, as that
property is described in the top legal description contained in the
deed from McMillan to [Rico], being determined as beginning on
the right-of-way line of Van Buren Street at a point 186 feet west
of the original 66-foot right-of-way of the railroad and running
thence due north.
(App. Vol. II at 14.)
Discussion and Decision
[6] Indiana Trial Rule 52(A) requires the trial court to make special findings of fact
without request in granting or refusing a preliminary injunction. However,
Rule 52 does not require findings of fact when granting or refusing a permanent
injunction.
Where, as here, the trial court enters findings of fact and
conclusions thereon without an Indiana Trial Rule 52 written
request from a party, the entry of findings and conclusions is
considered to be sua sponte. Dana Companies, LLC v. Chaffee
Rentals, 1 N.E.3d 738, 747 (Ind. Ct. App. 2013), trans.
denied. Where the trial court enters specific findings sua sponte,
the findings control our review and the judgment only as to the
issues those specific findings cover. Id. Where there are no
specific findings, a general judgment standard applies and we
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may affirm on any legal theory supported by the evidence
adduced at trial. Id.
A two-tier standard of review is applied to the sua sponte findings
and conclusions made: whether the evidence supports the
findings, and whether the findings support the
judgment. Id. Findings and conclusions will be set aside only if
they are clearly erroneous, that is, when the record contains no
facts or inferences supporting them. Id. A judgment is clearly
erroneous when a review of the record leaves us with a firm
conviction that a mistake has been made. Id. In conducting our
review, we consider only the evidence favorable to the judgment
and all reasonable inferences flowing therefrom. Id. We will
neither reweigh the evidence nor assess witness credibility. Id.
Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct. App. 2014). If a party does
not challenge the factual findings of the trial court, we must accept them as
true. Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
[7] A permanent injunction is a judicial decree “prohibiting injurious interference
with rights.” Drees Co., Inc. v. Thompson, 868 N.E.2d 32, 41 (Ind. Ct. App.
2007), reh’g denied, trans. denied. We will reverse the grant of a permanent
injunction only when it was arbitrarily granted or amounted to an abuse of
discretion. Id. “A trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances, or if it misinterprets
the law.” Id. The trial court is to evaluate
four factors in determining the propriety of permanent injunctive
relief: (1) whether the plaintiff has succeeded on the merits; (2)
whether plaintiff’s remedies at law are adequate; (3) whether the
threatened injury to the plaintiff outweighs the threatened harm a
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grant of relief would occasion upon the defendant; and (4)
whether the public interest would be disserved by granting relief.
Id.
1. Whether the Ricos Succeeded on the Merits
[8] As to this issue, the trial court found and concluded as follows:
1. Plaintiffs are the owners of real estate commonly known as
309 E. Van Buren Street, Leesburg, Indiana, and legally
described in the Warranty Deed from A. Maxine McMillan
and Charles G. McMillan to Carlos Rico and Jennifer M.
Rico dated November 10, 1989, and recorded in Deed Record
336, Page 229 in the records of the Recorder of Kosciusko
County, Indiana. (Exhibit 12) (“Rico Property”).
2. The Warranty Deed from McMillan to Rico contains two
legal descriptions, the first description being the legal
description by which McMillan took title and the second
description being one prepared by Jerry K. Walker, surveyor,
apparently prepared based on a survey certified by Jerry K.
Walker December 1, 1989 (Exhibit 7).
3. The two legal descriptions contained in the deed from
McMillan to Rico are not identical.
4. The legal description prepared by Jerry K. Walker is based on
monuments found in the field as opposed to the original
description contained at the top of the deed from McMillan to
Rico.
5. The original, larger tract from which the Rico parcel devolved
is contained in a Warranty Deed from John R. Bain to
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Gardner Watts dated May 21, 1842, and recorded November
15, 1843, in Deed Record 4, Page 56, in the Office of the
Recorder of Kosciusko County, Indiana.
6. The railroad, to which reference is made in numerous exhibits
in this matter, was established by grant of right-of-way on
April 6, 1870, and had a width of 66 feet (Exhibit 2).
7. The next deed in the chain of title to the Rico Property was
from Thomas Lay et al. to Jordan Becknell dated February 8,
1884, and recorded March 3, 1884. That deed conveys a
parcel 24 rods and 12 links square “excepting therefrom the
right-of-way of the C.W. and M. Railway” (Exhibit 3), and
has a beginning point at the intersection of the east line of
Section 8, Township 33 North, Range 6 East, and the north
line of the right-of-way of Van Buren Street extended.
8. Subsequent to the grant of the railroad right-of-way, there was
a conveyance of a tract 66 feet by 132 feet to the same
railroad, the east line of which was coterminous with the west
line of the railroad right-of-way. The south line of that tract
was the north right-of-way line of Van Buren Street. That
deed was from Margaret J. Thomas to the railroad, dated
March 18, 1898, and recorded April 5, 1898 (Exhibit 4). This
was an absolute conveyance, containing warranties and not a
grant of right-of-way.
9. The deed by which Defendants took title is dated September
2, 2016, and recorded September 9, 2016, as Instrument No.
2016090378 in the Office of the Recorder of Kosciusko
County, Indiana, and contains as a beginning point of the
description the point of intersection of the west right-of-way
line of the railway and the north line of Van Buren Street if
extended (Exhibit 8). The address of Defendants’ property is
311 E. Van Buren Street (“Lincoln Property”).
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10. A survey was prepared by Marbach & Brady Land Surveying,
Inc., dated April 15, 1997, which accurately reflects the
existence of the original 66-foot wide railway right-of-way, the
conveyance of the 66 foot x 132-foot tract to the railway and
the proper location of the Lincoln Property (Exhibit 5). The
Marbach & Brady survey shows the beginning point of the
legal description for the Lincoln Property to be 66 feet west of
the point of intersection of the north right-of-way line of Van
Buren Street extended and the west right-of-way line of the
original 66-foot right-of-way of the railway.
11. The Marbach & Brady survey also shows an area 16 feet at
the north, 13 feet at the south and adjacent to the original
right-of-way line of the railway to be the property of the
railroad ‘by adverse possession’. [sic] The surveyor’s report
appearing at page 2 of the Marbach & Brady survey explains
the method utilized for the determination of the west line of
the right-of-way of the railway. This strip begins at the north
line of the 60-foot x 132-foot strip (Exhibit 4) and runs north.
The numbers used by Marbach & Brady correspond to
numbers shown on the Val map (Exhibits 6 and B).
12. Maintained in the Office of the Kosciusko County Surveyor
are certain maps known as “Val” maps depicting the location
of various railroad rights-of-way in Kosciusko County. These
maps are prepared by the railroad and are modified from time
to time to reflect changes in railroad property (Testimony of
M. Kissinger). Exhibit 6 and Exhibit A depict the location of
railroad property at the intersection of the railroad and Van
Buren Street in Leesburg, Indiana. These exhibits evidence
the transfer of the 66-foot x 132-foot parcel (No. 11) shown in
Exhibit 4, and the adverse possession of an approximate 13-
foot wide tract north of the 66-foot x. 132-foot parcel (No. 9).
It is impossible to determine from Exhibit 6 or Exhibit B the
date on which changes to the original Val map were made.
The original date on the Val map is June 3, 1915.
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13. The date of conveyance of the original tract from which the
Rico Property was later conveyed has as its beginning point
the east line of Section 8, Township 33 North, Range 5 East,
which is also the section line which would be intersected by
the north right-of-way line of Van Buren Street if extended
east. The original conveyance, having been made May 21,
1842, makes no reference to the railroad because the railroad
did not exist until 1870 (Exhibit 2).
14. The survey of Jerry K. Walker erroneously adds
approximately 13 feet to the right-of-way of the railroad,
causing the southeast corner of the Rico Property, which is
also the southwest corner of the Lincoln Property, to be
located 13.7 feet west of its true location (Testimony of M.
Kissinger).
15. Christopher McCrea, a registered Indiana land surveyor,
indicated his survey showed a 1.5-foot discrepancy from the
survey performed by Jerry K. Walker (Exhibit 7). McCrea
testified that he only reviewed the deed to Lincoln (Exhibit 8),
the Walker survey (Exhibit 7), and the Val map (Exhibit 6).
He did not review any deeds in the chain of title to the Rico
Property. For the location of items and measurements shown
on Exhibit E, McCrea relied on the Walker survey. Any
errors contained in the Walker survey were perpetuated by the
McCrea survey (Exhibit E). McCrea also testified he located
the railroad right-of-way 33 feet West of the east section line,
rather than 30 feet as called for in the grant of right-of-way
(Exhibit 2). McCrea also testified that he believed Walker
began his description at the center of the railroad right-of-way
because it would be more expensive to locate the east line of
Section 8 and begin the description there, as called for in the
original description to the Rico Property, and that a proper
survey would begin at the east line of Section 8.
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16. Danny McAfee, former owner of Auburn Abstract Company
and trained in the examination of titles, testified that although
he would have insured title to the Rico Property as described
in the Walker survey, based on title documents, the
description was inaccurate. He further testified the southeast
corner of the Rico Property being the same as the southwest
corner of the Lincoln Property was actually located 13.7 feet
east of the location shown on the Walker survey in
accordance with the title documents.
17. Plaintiffs maintain an access driveway to the rear of Plaintiffs’
property which serves as the only means of access to the
garage and rear of the property, the rear being the north side
of the property.
18. Defendants constructed a fence in such a fashion that it
obstructed access to the driveway and prevented access to the
rear of Plaintiffs’ property.
19. The fence constructed by Defendants was located west of the
west line of the Lincoln Property when the west line of the
Lincoln Property is properly calculated as being 186 feet west
of the west line of the original railroad right-of-way, the only
expressly granted right-of-way which exits [sic] or has ever
existed immediately north of Van Buren Street.
(App. Vol. II at 8-12.)
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[9] The Lincolns do not challenge any of the above findings of fact. 2
Consequently, they stand as proven. Coles v. McDaniel, 117 N.E.3d 573, 576
(Ind. Ct. App. 2018) (“Husband does not challenge the trial court’s findings,
and thus they stand as proven.”). Therefore, we look to see if the findings
support the trial court’s conclusions. Id.
[10] The Lincolns contend the trial court’s legal conclusion that the First
Description controls is erroneous. They argue the Second Description in the
Rico Deed should control. The Second Description in the Rico Deed states the
Ricos’ east property line is 232.7 feet west of the centerline of the New York
Central Railroad. If the Second Description controls, the fence was not located
on the Rico Property. The Lincolns argue the Second Description is the more
particular description contained in the Rico Deed, and where the deed contains
multiple descriptions, the more particular description controls. See Gano v.
Aldridge, 27 Ind. 294, 295 (1866) (“It is a rule of construction that words of
particular description will control more general terms of description, when both
cannot stand together.”).
2
The Lincolns do take issue with the trial court’s Finding of Fact 21: “The fence constructed by Defendants
was located wholly on property owned by Plaintiffs.” (App. Vol. II at 12.) However, Finding of Fact 21 is
actually a conclusion of law because it requires the court to first determine which description in the Rico
Deed is controlling. See State v. Van Cleave, 674 N.E.2d 1293, 1296 (Ind. 1996) (“We are not bound by the
trial court’s characterization of its results as ‘findings of fact’ or ‘conclusions of law.’ Rather, we look . . . to
the substance of the judgment and will review a legal conclusion as such even if the judgment wrongly
classifies it as a finding of fact.”), reh’g granted in part 681 N.E.2d 181 (Ind. 1997), cert. denied 522 U.S. 1119
(1998).
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[11] Further, the Lincolns argue that extrinsic evidence supports their position. The
Ricos argue the trial court did not err, and the First Description contained in
the Rico Deed should control. Rather than provide a more particular
description of the property, the Ricos argue the Second Description “as derived
from the Walker Survey served as an attempt to make the description ‘more
updated’ rather than ‘more particular.’” (Appellee Br. at 18 (quoting Tr. Vol.
III at 36, 48)). If the First Description controls, then the fence was located on
the Rico Property.
[12] The First Description and the Second Description do not describe identical
pieces of land. (App. Vol. II at 8-12.) Nevertheless, the plain language of the
Rico Deed indicates that the Second Description was meant to refer to the same
land described by the First Description, and the McMillians intended to convey
that land to the Ricos. See Clark v. CSX Transp., Inc., 737 N.E.2d 752, 757 (Ind.
Ct. App. 2000) (“The object of deed construction is to ascertain the intent of the
parties and where there is no ambiguity in the deed, the intention of the parties
must be determined from the language of the deed alone.”), reh’g denied, trans.
denied. In Hornet v. Dumbeck, we quoted a rule of construction pronounced by
the Supreme Court of Iowa:
‘Where a deed of conveyance contains a general description of
the property conveyed, which is definite and certain in itself, and
is followed by a particular description also, such particular
description will not limit or restrict the grant which is clear and
unambiguous by the general description. *** Where the general
description is indefinite and uncertain, and reference to the
particular description must be had, in order to ascertain with
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certainty the subject of the grant; in such cases the rule does not
apply. But then the whole language will be taken together, and
though it may be ambiguous or even contradictory, if, upon the
whole instrument, there is sufficient to manifest the intention of
the parties with reasonable certainty, that will suffice.’
78 N.E. 691, 695 (Ind. Ct. App. 1906) (quoting Barney v. Miller, 18 Iowa 460,
466 (1865)). We also quoted the Supreme Judicial Court of Maine’s statement
that “‘a true and certain description of the grant is never invalidated by the
addition of a falsity, when the intention of the parties can be subserved, and the
conveyance upheld, by sustaining the true and rejecting the false description.’”
Id. (quoting Abbott v. Pike, 33 Me. 204, 204 (1851)). We went on to note “‘a
general description, which is definite and certain, cannot be restricted.’” Id. at
695 (quoting College Corner, etc., Co. v. Moss, 92 Ind. 119, 129 (1883)).
[13] Here, the First Description takes precedence over the Second Description. The
First Description clearly states the Rico Property’s boundaries and is a
description that prior owners had effectively used to transfer title. The Walker
Survey description is an erroneous added description. Therefore, the language
from Hornet that we have adopted dictates that the First Description controls
because it is a definite and certain general description. Given that the First
Description is sufficiently particular to identify the land intended to be
conveyed, we do not need to look at extrinsic evidence. See Lippeatt v. Comet
Coal & Clay Co., Inc., 419 N.E.2d 1332, 1335 (Ind. Ct. App. 1981) (holding deed
was unambiguous and therefore there was no need to rely on extrinsic
evidence), reh’g denied.
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2. Plaintiff’s Remedy at Law and Harm
[14] As to these issues, the trial court found and concluded as follows:
22. If Defendants are not permanently enjoined from
reconstructing the fence or otherwise obstructing Plaintiffs’
access to the driveway, Plaintiffs will suffer irreparable harm in
that they will not have unimpeded use and control over their real
estate and they will not have adequate access to the rear of their
property.
23. Plaintiffs are without adequate remedy at law.
24. Defendants have placed an apparent cloud on the Rico
Property title by building the fence and continuing to assert a
claim of right to restrict Plaintiff’s access to the rear of the
property.
25. Plaintiffs have been unable to sell the Rico Property until the
apparent cloud on the property’s title has been removed and
Plaintiffs can convey title to a potential buyer which includes
access to a public road, specifically, the connecting driveway to
Van Buren Street, which is the only way to access the property
from a public road.
26. The driveway where Defendant placed the fence has been the
sole means of public road access for the original Rico Property
since well before either Plaintiffs or Defendants owned their
respective properties and continues to be the sole public road
access.
27. Plaintiffs have used the driveway as the sole public road
access since purchasing the property in 1989, and continued to
do so until Defendants blocked the drive with a fence. Because
that drive is the only public access for the original Rico Property,
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this Court issued a preliminary injunction and Order requiring
Defendants to remove the fence.
28. Photographic evidence shows that the current actual use, and
apparent historical use, of the parties’ real estate and driveway,
including the location of the driveway and the tree line between
the two (2) tracts of real estate, is consistent with the location of
the property line as determined by the Court.
(App. Vol. II at 12-13.) Whether the Ricos have an adequate remedy at law
and whether they have suffered clear, irreparable harm are more properly
considered legal conclusions rather than findings of fact. See supra note 2. We
regard the remaining findings as true because the Lincolns do not challenge
them on appeal. See Coles, 117 N.E.3d at 576 (unchallenged findings are
accepted as true).
[15] The Lincolns argue the trial court erred in issuing a permanent injunction
because the Ricos have an adequate remedy at law and have not suffered clear,
irreparable harm. The Lincolns argue the Ricos suffered only monetary harm
in the form of lost property value and lost business, such that an award of
damages represents an adequate remedy. The Lincolns contend that economic
harm alone does not justify issuance of an injunction. See Ind. State Dept. of
Welfare, Medicaid Div. v. Stagner, 410 N.E.2d 1348, 1354 (Ind. Ct. App. 1980)
(holding lost income to medical services provider from delayed Medicaid
reimbursement payments was not irreparable harm justifying the issuance of a
preliminary injunction).
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[16] However, the trial court’s findings of fact support the conclusions the Lincolns’
challenge. The trial court found that in the absence of an injunction, the Ricos
“will not have unimpeded use over their real estate and they will not have
adequate access to the rear of their property.” (App. Vol. II at 12.) Moreover,
the trial court found the Lincolns “have placed an apparent cloud on the Rico
Property title[.]” Id. The trial court also found the Ricos are unable to sell the
Rico Property until the issue is resolved, and the court found the Ricos have
used the driveway as the sole public access road since they bought the Rico
Property. Id.
[17] Landowners suffer harm when they are prevented from having full access to
their property. Ballard v. Harman, 737 N.E.2d 411, 417-18 (Ind. Ct. App. 2000)
(holding appellants had no interest in real estate and affirming injunction
prohibiting them from placing materials or obstacles on the real estate), reh’g
denied. Further, landowners have the right to sell their property. See Meridian
Mortg. Co., Inc. v. State, 395 N.E.2d 433, 439 (Ind. Ct. App. 1979) (“The three
primary indicia of ownership of personal property are Title; possession; and
Control, which includes the right to sell, dispose of, or transfer.”), reh’g denied.
Thus, the trial court’s findings support its conclusion that the Ricos will suffer
clear, irreparable harm in the absence of an injunction because they cannot fully
use or sell the Rico Property without an injunction.
[18] The findings also support the trial court’s conclusion that without an injunction
the Ricos are without adequate remedy at law. The fence prevented the Ricos
from full use of the Rico Property. The Lincolns’ fence constituted a
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continuing trespass on the Rico Property. As we observed long ago, “[t]he law
is well-settled that an injunction is a proper remedy to prevent a continued
trespass.” Selvia v. Reiteyer, 295 N.E.2d 869, 875 (Ind. Ct. App. 1973), reh’g
denied. Even though the Ricos no longer lived or operated a business on the
Rico Property at the time of trial, they still owned the property and were
entitled to full use of it. Therefore, the trial court did not abuse its discretion
when it issued a permanent injunction enjoining the Lincolns from placing an
obstruction on the Rico Property. 3 See Liter’s of Ind., Inc. v. Bennett, 51 N.E.3d
285, 300 (Ind. Ct. App. 2016) (holding permanent injunction should be entered
requiring landowner to remove portion of roof that extended over neighbor’s
property), reh’g denied, trans. denied. 4
Conclusion
[19] The First Description of the Rico Deed controls because it accurately describes
the property the McMillans intended to convey to the Ricos. The Ricos are
without adequate remedy at law and would suffer clear, irreparable harm in the
3
The Lincolns also argue that, if we hold the permanent injunction was erroneously granted, then they
should receive damages and attorney fees for the issuance of the preliminary injunction that required them to
remove the fence. As we affirm the trial court’s injunction order, we need not address this argument. See
Leone v. Keesling, 858 N.E.2d 1009, 1016 n.8 (Ind. Ct. App. 2006) (refusing to address argument that appellant
was not entitled to attorney fees), trans. denied.
4
The fourth factor a trial court is to consider in deciding whether to issue a permanent injunction is the
impact granting the injunction will have on the public interest. See Drees Co., Inc., 868 N.E.2d at 41. Here the
trial court made no findings regarding the public interest. As the parties allege no error with regard to the
factor, we need not review this factors. See, e.g., Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003)
(appellate court will not become an advocate for parties).
Court of Appeals of Indiana | Memorandum Decision 19A-PL-1476 | March 31, 2020 Page 18 of 19
absence of an injunction because the Lincolns’ fence trespassed on the Ricos’
property. Therefore, we affirm.
[20] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-1476 | March 31, 2020 Page 19 of 19