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

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.

Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016 Page 1 of 3 [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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