Audrey Mullins and Danny Mullins v. Robert Maas and Gail Maas (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Jul 27 2017, 11:43 am

precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
John J. Schwarz, II Bill D. Eberhard, Jr.
Schwarz Law Office, P.C. Eberhard & Weimer, P.C.
Hudson, Indiana LaGrange, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Audrey Mullins and July 27, 2017
Danny Mullins, Court of Appeals Case No.
44A03-1611-MI-2631
Appellants-Plaintiffs,
Appeal from the LaGrange Superior
v. Court
The Honorable Lisa M. Bowen-
Slaven, Judge
Robert Maas and Gail Maas,
Cause No. 44D01-1310-MI-77
Appellees-Defendants.

Bradford, Judge.

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 Case Summary
[1] In 2013, Appellants-Plaintiffs Audrey and Danny Mullins sued for adverse

possession of a parcel of land also claimed by Appellees-Defendants Robert and

Gail Maas (“the Disputed Parcel”). After a bench trial, the trial court entered

judgment in favor of the Mullinses. The trial court, however, granted the

Maases’ motion to correct error, which grant awarded possession of the

Disputed Parcel to them. After almost one year passed, the Mullinses moved

for relief from judgment, which motion the trial court denied. The Mullinses

contend that the trial court abused its discretion in denying their motion for

relief from judgment on several bases, including excusable neglect, newly-

discovered evidence, misrepresentation, and that the trial court’s ruling was

untimely. Because we conclude that the first three claims lack merit and that

the fourth is waived for appellate review, we affirm.

Facts and Procedural History
[2] In July of 1981, the Mullinses purchased real estate in Brushy Prairie in

LaGrange County, consisting primarily of Lot 14 of the plat. At the time, there

was a general discussion of the real estate’s boundaries, but no survey was

performed. Between 1981 and 2006, the Mullinses made at least some use of

the Disputed Parcel, which consisted of parts of adjacent Lots 13, 23, and 24 of

the Brushy Prairie plat, planting and/or maintaining bushes, trees, grass, bird

feeders, and burn barrels on it.

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[3] Also between 1981 and 2006, Linda Lee Perkins, who believed that she owned

the Disputed Parcel, also used it, hiring someone to mow it and owning a pole

barn that was situated partially in it. In 2006, the Maases purchased property in

Brushy Prairie from Perkins, the deed to which included the Disputed Parcel.

The LaGrange County Auditor has since determined that Perkins did not, in

fact, possess legal title to the Disputed Parcel at the time of the sale. In any

event, at some point in 2013, a survey was performed which excluded the

Disputed Parcel from the Mullinses’ property.

[4] On October 28, 2013, the Mullinses filed a complaint against the Maases for

adverse possession of the Disputed Parcel. On December 18, 2014, the trial

court conducted a bench trial and took the matter under advisement. On

December 31, 2014, the trial court entered judgment in favor of the Mullinses.

On January 1, 2015, Judge Lisa M. Bowen-Slaven took over the case, having

recently been elected. On January 30, 2015, the Maases filed a motion to

correct error. On May 26, 2015, the trial court granted the Maases’ motion to

correct error. The trial court’s order provided, in part, as follows:

1. To prevail on a claim of adverse possession, a claimant must
establish the following four elements: (1) control; (2) intent; (3)
notice; (4) duration; and in boundary disputes, adverse claimants
must demonstrate that they substantially complied with Indiana
Code Section 32-21-7-1 and the payment of taxes,
2. To establish control, the adverse claimant must have exercised
a degree of use and control over the parcel that is normal and
customary considering the characteristics of the land in question.
The element of control is composed of and recognizes the former
elements of actual and exclusive possession. To demonstrate

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 intent, the claimant must have shown his or her intent to claim
full ownership of the tract superior to the rights of all others,
particularly the legal owner. The element of intent is recognizing
and reflecting components of the former elements of claim of
right, exclusive, hostile and adverse. For notice, the claimant’s
actions with respect to the land must have been sufficient to give
actual or constructive notice to the legal owner of the claimant’s
intent and exclusive control. To show duration, the claimant
must have satisfied each of the other elements continuously for
the required period of time, i.e. ten years. Fraley v. Minger, 829
NE. 2d 476 (Ind. 2005).
3. The party asserting the claim of adverse possession must
establish the elements of adverse possession by clear and
convincing evidence. Fraley at 483.
4. A person may not control a parcel of property and at the same
time acknowledge that there exists other people who have, and
should continue to have in the future, the right to make use of the
same real estate.
5. There was no evidence presented to suggest that the Mullins
excluded others from using the Disputed Property during the
period from 1981 through 2006.
6. There was no evidence presented to suggest that Linda Lee
Perkins was on notice that the Mullins were asserting a claim of
full ownership of the tract superior to the rights of all others,
particularly Linda Lee Perkins, during the period from 1981
through 2006.
7. The Mullins have failed to establish the elements of control,
intent and notice during their claimed period of duration,
specifically, August 1981 through 2096, by clear and convincing
evidence and therefore their claim of adverse possession to the
Disputed Property must fail.
8. Although a conclusion related to payment of property taxes
for the Disputed Property is not necessary, based on the Plaintiffs
having failed to meet their burden in relation to the adverse
possession criteria, the Court also concludes that the Plaintiffs
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 failed to establish substantial compliance with the Adverse
Possession Tax Statute.
…
10. The Plaintiffs’ claim, as filed on October 28, 2013, was for
adverse possession. The fact that there may now be some dispute
as to whether or not Linda Lee Perkins legally owned the
Disputed Property at the time of the conveyance in 2006 to the
Defendants is irrelevant to the claim before the Court.
JUDGMENT
The Plaintiffs having failed to satisfy their burden on their claim
of adverse possession, the Court hereby enters judgment in favor
of the Defendants. JUDGMENT ACCORDINGLY.
Appellant’s App. Vol. II pp. 45-46.

[5] On May 26, 2016, the Mullinses filed an Indiana Trial Rule 60 motion for relief

from judgment. On October 18, 2016, the trial court denied the Mullinses’

motion for relief from judgment.

Discussion and Decision
I. Motion for Relief from Judgment
[6] The Mullinses contend that the trial court abused its discretion in denying their

motion for relief from judgment.

On motion and upon such terms as are just the court may relieve
a party or his legal representative from a judgment, including a
judgment by default, for the following reasons:
(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including
without limitation newly discovered evidence, which by due

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 diligence could not have been discovered in time to move for
a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party[.]
….
A movant filing a motion for reasons (1), (2), [or] (3) … must
allege a meritorious claim or defense.
Ind. Trial Rule 60(B).

The burden is on the moving party to establish the ground for
relief under Trial Rule 60(B). In re Paternity of P.S.S., 934 N.E.2d
737, 740 (Ind. 2010).… Trial Rule 60(B) motions address only
the procedural, equitable grounds for justifying relief from the
legal finality of a final judgment, not the legal merits of the
judgment. Id.
We review the trial court’s ruling on a motion for relief from
judgment using an abuse of discretion standard. Speedway
SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008).
An abuse of discretion occurs only when the trial court’s action is
clearly erroneous, that is, against the logic and effect of the facts
before it and inferences drawn therefrom. P.S.S., 934 N.E.2d at
741. Moreover, where as here, the trial court enters special
findings and conclusions pursuant to Indiana Trial Rule 52(A),
we apply a two-tiered standard of review. Stonger v. Sorrell, 776
N.E.2d 353, 358 (Ind. 2002). First we determine if the evidence
supports the findings, and second whether the findings support
the judgment. Id. The trial court’s findings and conclusions will
be set aside only if clearly erroneous. Id. We neither reweigh the
evidence nor reassess witness credibility. Id. Instead, we must
accept the ultimate facts as stated by the trial court if there is
evidence to sustain them. Id.
Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans. denied.

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[7] The Mullinses claim they are entitled to relief from judgment on the bases of

excusable neglect, allegedly newly-discovered evidence, and/or

misrepresentation. As mentioned, all of these bases also require that the

Mullinses allege a meritorious claim or defense, which the Mullinses have

failed to do.

[8] The Mullinses focus on several things: their claim that have both suffered

recent health problems, the question of who has actually paid property taxes on

the Disputed Parcel over the years, whether the Maases installed a septic tank

in the Disputed Parcel, and whether the Maases made misrepresentations

regarding the taxes and septic tank. Even if we assume that all of these issues

can be resolved in the Mullinses’ favor, that would not help them. As the

Maases point out, the trial court’s grant of their motion to correct error did not

depend on the resolution of any questions regarding taxes or a septic tank.

Rather, the trial court’s decision was based on the trial court’s findings that the

Mullinses failed to establish the elements of control, intent, and notice, any one

of which would be fatal to their adverse-possession claim and none of which

they challenge. Because they failed to allege a meritorious claim or defense, the

Mullinses have likewise failed to establish that the trial court abused its

discretion in their motion for relief from judgment.

II. Timing of Ruling on Motion to Correct Error
[9] The Mullinses argue that the trial court should grant them relief from the grant

of the Maases’ motion to correct error because the trial court did not issue its

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 order within thirty days of the hearing held on March 26, 2015. Trial Rule 53.3

provides, in part, as follows:

(A) Time limitation for ruling on motion to correct error. In
the event a court fails for forty-five (45) days to set a Motion to
Correct Error for hearing, or fails to rule on a Motion to Correct
Error within thirty (30) days after it was heard or forty-five (45)
days after it was filed, if no hearing is required, the pending
Motion to Correct Error shall be deemed denied. Any appeal
shall be initiated by filing the notice of appeal under Appellate
Rule 9(A) within thirty (30) days after the Motion to Correct
Error is deemed denied.
(B) Exceptions. The time limitation for ruling on a motion to
correct error established under Section (A) of this rule shall not
apply where:
(1) The party has failed to serve the judge personally; or
(2) The parties who have appeared or their counsel stipulate
or agree on record that the time limitation for ruling set forth
under Section (A) shall not apply; or
(3) The time limitation for ruling has been extended by
Section (D) of this rule.
The Mullinses note that the trial court did not rule on the Maases’ motion to

correct error within thirty days of the March 26, 2015, hearing, and while they

do not deny that the parties did, in fact, agree to waive the time limitation, they

argue that any such agreement was not sufficiently “on record.”

[10] The record on appeal touches on this question several times. At the March 26,

2015, hearing on the motion to correct error, Judge Bowen-Slaven noted that

she was not the judge who issued the judgment of December 31, 2014, and

indicated that she wished to review the recording of the bench trial. The

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 Mullinses’ counsel then moved to vacate oral argument on the motion to

correct error, observing that it would be “kind of silly” to make arguments

based on something the current trial court had not heard. March 26, 2016, Tr.

p. 3. Both parties agreed to conduct oral argument at a later date after Judge

Bowen-Slaven had an opportunity to review the tapes of the bench trial and if

she felt it necessary. Judge Bowen-Slaven took the matter under advisement

and indicated that she would review the trial tapes and contact the parties if she

felt oral argument was necessary.

[11] In the May 26, 2015, order granting the Maases’ motion to correct error, the

trial court indicated that “the parties each agreed to extend the deadline for

ruling on the Motion to Correct Errors, to and including June 7, 2015.”

Appellant's App. Vol. II p. 43. Finally, the trial court’s October 18, 2016, order

denying the Mullinses motion for relief from judgment contains the following:

8. Thereafter, within thirty (30) days of the March 26, 2015
hearing on Defendants’ Motion to Correct Error, the Court held
a telephonic conference with the attorneys of record at that time
and requested additional time to rule on the Motion to Correct
Errors.
9. Although the telephone conference was not recorded, both
parties’ legal counsel advised the Court that they specifically
agreed to extend the time for ruling on the Motion to Correct
Errors for so long as the Court reasonably needed to review the
record and evidence that was admitted at trial in this cause, in
order to make a fully informed decision. The Court advised the
parties during the telephone conference that a decision would be
made by June 7, 2015, to which counsel indicated their consent.

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 Appellant’s App. Vol. II p. 13. In short, even though there is no

contemporaneous record of the telephone conference or the parties’ agreement

to extend the deadline for the trial court to rule on the Maases’ motion to

correct error, the record clearly indicates that the parties agreed to extend the

deadline.

[12] The case of Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281 (Ind. Ct. App.

1995), trans. denied, is similar enough to be helpful. The Andersons contracted

with Horizon Homes to build them a house, which, following delays and

disputes, was never finished. Id. at 1284. The resulting litigation resulted in an

award of money damages to Horizon on May 14, 1993. Id. at 1285. On June

11, 1993, a telephonic conference involving the parties and the trial court was

conducted, although the details of the conference were not made part of the

record at the time. Id. On September 17, 1993, the trial court denied the

Andersons’ motion to correct error. Id. On October 18, 1993, the Andersons

filed a praecipe of appeal, which Horizon Homes challenged as untimely on the

basis that the Andersons’ motion to correct error had been deemed denied on

July 31, 1993, pursuant to Trial Rule 53.3(A). Id. at 1586.

[13] On November 22, 1993, the trial court ordered the correction of its June 11,

1993, docket entry to reflect that the parties had agreed to extend the time in

which the trial court could rule on the Andersons’ motion to correct error:

1. That the Entry of the Pre-Trial Conference held telephonically
on June 11, 1993, did not completely set forth the discussions
and statements of the parties and the Court, and a clerical

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 mistake was made in not accurately depicting the content of that
Pre-Trial Conference as more specifically set forth below.
2. That … [a] conversation was held between the Court and the
parties regarding the Defendants’ anticipated Motion to Correct
Error....
******
4. That Trial Rule 53.3 was discussed during the Pre-Trial
Conference and the Court stated to the parties that it would
diligently attempt to rule on said Motion to Correct Errors within
the time limitation set forth in said Rule.… The Court stated that
it intended to move expeditiously in its consideration of the
Motion to Correct Errors, but could not state that it could issue
its ruling on said Motion within forty-five (45) days of the date
the Defendant [sic] filed their Motion to Correct Errors due to [a]
congested court calander [sic] and vacation. The parties advised
the Court that they would provide the Court with the time
necessary to properly rule on the Motion to Correct Errors.
Id. at 1285 (bracketed material in Anderson).

[14] As is the case here, Horizon Homes did not deny that it agreed that the time

limits of Trial Rule 53.3 would not apply, only that the agreement was not “of

record.” Id. at 1286. We rejected Horizon Homes’s argument, noting that

“[t]he November 22, 1993, order is clear that the parties agreed, at the trial

court’s urging, that the forty-five day time limit of T.R. 53.3(A) would not

apply” and concluding “that the ‘on record’ requirement of T.R. 53.3(B) was

satisfied.” Id. at 1286.

[15] We see no meaningful distinction between this case and Anderson and so reach

the same result. The trial court’s orders granting the Maases’ motion to correct

error and denying the Mullinses’ motion for relief from judgment, although not

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 contemporaneous to the agreement to extend the deadline for ruling on the

motion to correct error, clearly reflect that such an agreement was reached.

Under the circumstances of this case—and keeping in mind that the Mullinses

have never denied that such an agreement existed—we conclude that Trial Rule

53.3(B)’s “on record” requirement was satisfied.1 The Mullinses are not entitled

to relief from judgment on the basis that the trial court did not timely rule on

the Maases’ motion to correct error.

[16] We affirm the judgment of the trial court.

May, J., and Barnes, J., concur.

1
We feel that concluding otherwise in this case would be placing form over substance. Of course, the better
practice would be to contemporaneously record any such agreement in some detail, whether in open court or
through an entry in the Chronological Case Summary.

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