Court of Appeals of Indiana | Memorandum Decision 41A04-1612-PL-2755 | July 28, 2017 Page 1 of 8

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 APPELLANTS

Jacqueline B. Ponder

Felson Bowman

Indianapolis, Indiana

Mary M. Runnells

Bloomington, Indiana

ATTORNEYS FOR APPELLEES

Kevin D. Koons

Kroger, Gardis & Regas, LLP

Indianapolis, Indiana

Peter G. Gundy

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jamison L. Beetz and Leah J. 

Beetz,

Appellants-Plaintiffs,

v.

Joe D. Bryant and Anne E. 

Bryant Revocable Trust, Joe D.

Bryant and Anne E. Bryant, 

Stephen A. Legan and Jenifer A. 

Legan, and Ron Zimmerman and 

Donna Zimmerman,

Appellees-Defendants.

July 28, 2017

Court of Appeals Case No.

41A04-1612-PL-2755

Appeal from the Johnson Superior 

Court.

The Honorable Marla K. Clark, 

Judge.

Trial Court Cause No. 

41D04-1601-PL-15

Shepard, Senior Judge
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[1] In this dispute over the applicability of an easement, Jamison L. Beetz and 

Leah J. Beetz appeal the trial court’s dismissal of their complaint. We reverse 

and remand.

[2] Prior to 1978, the Gluff family owned property bordering Stones Crossing Road 

in Johnson County. A small creek runs along the road, and the Gluffs used a

small bridge for road access. The Gluffs divided their land into four parcels and 

sold them over time. Only one of the four parcels, Parcel D, borders Stones 

Crossing Road. The other three, Parcels A, B, and C, are on the opposite side 

of Parcel D from the road and are landlocked.

[3] In 1978, Joe D. Bryant and Anne E. Bryant bought Parcel C from the Gluffs. 

In 1979, Gail Gluff and Mary Jo Gluff granted an easement to the Bryants, 

allowing the Bryants the right of “ingress and egress and for utilities over, under 

and across the easement premises.” Appellants’ App. Vol. III, p. 17. The 

easement included the bridge and ran south along the western border of Parcel 

D to a point where Parcels A, B, and C could access it.

[4] The Bryants later sued the Gluffs for reasons not stated in the record, and the 

case was litigated in the Brown Circuit Court. At that point, the Gluffs still 

owned Parcels A and D. The Bryants owned Parcel C, and John F. Wright had 

purchased Parcel B. On March 12, 1982, the court issued an Agreed Judgment

(the 1982 Judgment) that applied to Gail Gluff, the Bryants, Wright, and their 

successors in interest. Among other terms, the 1982 Judgment included a new 

easement, which applied to all three landlocked parcels. The new easement 
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retained the same boundaries as the 1979 easement, but the new easement was 

described as “exclusive.” Id. at 22. The Bryants recorded the 1982 Judgment in 

Johnson County in their chain of title for Parcel C, but Gluff did not do the 

same for Parcel D.1

[5] Later, the Bryants conveyed their interest to a trust, of which they were the 

trustees. Gluff sold Parcel A to Ron and Donna Zimmerman, and Stephen A. 

Legan and Jenifer A. Legan purchased Parcel B. Gluff sold Parcel D, the nonlandlocked parcel, to another person, who in turn sold it to the Beetzes in 2013. 

[6] At the time of the 2013 purchase, the Beetzes were aware of the 1979 easement 

but not the easement contained in the 1982 Judgment. Over the years, they

mowed the grass along the easement, paid property taxes on the easement, and

included the easement in their homeowners’ insurance. None of the other 

property owners contributed to the taxes or insurance. The Beetzes use the 

bridge to access their home on Parcel D.

[7] The current case began after a fire truck struck and damaged the bridge. 

Disputes arose among the property owners about who had the authority to 

accept payment from the fire department for damages, hire a contractor, and 

pay for bridge repairs.

 

1 The record does not reflect whether Gluff recorded the 1982 Judgment in Parcel A’s chain of title.
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[8] On January 29, 2016, the Beetzes sued the Bryant Trust, the Bryants, the 

Legans, and the Zimmermans, seeking declaratory judgment. The defendants 

filed a motion to dismiss, citing Indiana Trial Rule 12(B)(6). The court granted 

the motion and dismissed the complaint without prejudice.

[9] Next, the Beetzes filed an amended complaint asking the court to determine: 

(1) if the easement contained in the 1982 Judgment applies to the Beetzes; (2)

whether, if the 1982 Judgment applies to the Beetzes, they have the right and 

the duty to repair and maintain the easement along with the owners of the other 

parcels; (3) if the Beetzes have the exclusive right to receive the fire 

department’s payment; and (4) if the defendants’ failure to maintain the 

easement has damaged the Beetzes. The defendants again moved to dismiss 

under Rule 12(B)(6). The court dismissed the complaint with prejudice and this 

appeal followed. On appeal the Beetzes pursue the same four claims.

[10] Pursuant to Indiana Trial Rule 12(B)(6), a defendant may move to dismiss a 

complaint for “failure to state a claim upon which relief may be granted.” Our 

standard of review is:

A motion to dismiss for failure to state a claim tests the legal 

sufficiency of the claim, not the facts supporting it. When ruling 

on a motion to dismiss, the court must view the pleadings in the 

light most favorable to the nonmoving party, with every 

reasonable inference construed in the non-movant’s favor. We 

review a trial court’s grant or denial of a Trial Rule 12(B)(6)

motion de novo. We will not affirm such a dismissal unless it is 

apparent that the facts alleged in the challenged pleading are 

incapable of supporting relief under any set of circumstances.
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Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (citations and quotations 

omitted).

[11] The Beetzes first argue they are not bound by the 1982 Judgment, and the 

easement contained therein, because they had no notice of its existence.

[12] In State v. Anderson, 241 Ind. 184, 170 N.E.2d 812 (1960), the State sought to 

condemn a piece of property, claiming it had acquired an easement over most 

of the land from the landowner’s predecessor in interest. The landowner noted 

the document granting the easement had not been recorded in the county where 

the property was located and further claimed she had no actual notice of the 

easement. The State lost in the trial court and appealed.

[13] The Indiana Supreme Court explained, “‘The purchaser of a land subject to an 

easement expressly created by grant or reservation in an unrecorded deed is not 

affected by it if he had no notice of the servitude.’” 170 N.E.2d at 814 (quoting 

Thompson on Real Property, Vol. 1, § 384, p. 623). The Court determined the 

landowner was not bound by the easement because the grant of the easement

was not recorded in the property’s chain of title. Further, the landowner had no 

actual notice of the easement because she had asked the seller about easements 

and was told the State had no interest in the land other than a narrow, openlymarked strip of land along the road. In addition, the landowner had obtained 

an abstract of title that did not disclose the existence of the easement. The 

Court concluded, “We therefore hold that appellee did all that the law required 
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of her to do and that appellee’s title cannot be defeated by a prior, unrecorded 

interest of the state in the land.” Id. at 815-16.

[14] Likewise, in State v. Cinko, 155 Ind. App. 357, 292 N.E.2d 847 (1973), the State 

sought to remove an advertising sign from a landowner’s property, claiming it 

encroached upon a right of way it had acquired from the landowner’s 

predecessor in interest. The document granting the right of way was never 

recorded in the county where the property was located. A panel of this Court, 

following Anderson, concluded the landowner had no notice, either actual (in 

the form of markers on the property) or constructive (in the form of a recorded 

easement), and was not bound by the grant of the right of way.

[15] In the current case, the 1982 Judgment was not recorded in Johnson County in 

the chain of title for the Beetzes’ land. Further, the Beetzes’ complaint alleges

they had no actual notice of the judgment’s existence, asserting they were aware 

of only the 1979 easement. Per our standard of review, we accept the allegation 

as true. Following Anderson, we conclude the Beetzes have alleged facts 

pursuant to which they would be entitled to declaratory relief on their claim 

that they are not bound by the 1982 Judgment and easement.

[16] The other property owners claim the Beetzes, as successors in interest to the 

Gluffs, are bound by the 1982 Judgment pursuant to res judicata even if they 

had no notice. The doctrine of res judicata serves to prevent the litigation of 

matters that have already been litigated. TacCo Falcon Point, Inc. v. Atlantic Ltd. 

Partnership XII, 937 N.E.2d 1212 (Ind. Ct. App. 2010). They cite Skelton v. 
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Sharp, 161 Ind. 383, 67 N.E. 535 (Ind. 1903), in which an owner of land in 

Pulaski County filed a quiet title action against Moore, who also claimed to 

own the land. The Pulaski Circuit Court found in favor of the landowner. 

Moore did not appeal but later deeded the land to a third party, who sold it to 

Skelton. Skelton was unaware of the prior court judgment, which was not 

recorded.

[17] The landowner sued Skelton, seeking again to quiet title to the land. The 

appellees prevailed. On appeal, Skelton claimed the decree did not bind him 

because he had no notice of it. The Indiana Supreme Court stated, “Our cases 

have steadily maintained that such a decree is a conclusive adjudication of title, 

not only as against the grantee, but as against all claiming under him.” 67 N.E. 

at 536. The Court concluded Skelton had no title to the land unless derived 

through Moore and was bound by the judgment as a successor to Moore.

[18] Skelton presents different circumstances than the current case because it did not 

involve an easement. In any event, we choose to follow the Indiana Supreme 

Court’s holding in Anderson, which directly addresses the issue presented here.

[19] The Beetzes’ remaining three claims are all contingent to some extent upon 

resolution of the Beetzes’ argument that they are not subject to the 1982 

Judgment. That issue, and the three claims, must be addressed on remand.

[20] For the reasons stated above, we reverse the judgment of the trial court and 

remand for further proceedings.
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[21] Reversed and remanded.

Riley, J., and Crone, J., concur.