MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Jeffry G. Price

Coleman Beckley

Peru, Indiana

ATTORNEYS FOR APPELLEE

Patrick J. Roberts

Sharon L. Breitenbach

Roberts Law Firm

Peru, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kathryn Arnold,

Appellant-Defendant/Counterclaimant,

v.

Dennis Arnold,

Appellee-Plaintiff/Counterclaim 

Defendant

April 15, 2016

Court of Appeals Case No.

52A02-1511-PL-2062

Appeal from the Miami Superior 

Court

The Honorable J. David Grund, 

Judge

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 rentfree 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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