Court of Appeals of Indiana | Memorandum Decision 41A04

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### 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.

A TTORNEY S FOR A PPELLANT S Jacqueline B. Ponder Felson Bowman Indianapolis, Indiana Mary M. Runnells Bloomington, Indiana A TTORNEY S FOR A PPELLEE S Kevin D. Koons Kroger, Gardis & Regas, LLP Indianapolis, Indiana Peter G. Gundy Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIA NA

Jamison L. Beetz and Leah J. Beetz, Appellant s - 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 Zimmer m an, Appellee s - Defendants. July 28, 2017 Court of Appeals Ca se No. 41A04

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- 2755 Appeal from the Johnson Superior Court. The Honorable Marla K. Clark, Judge. Trial Court Cause No. 41D04

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### Shepard , Senior JudgeCourt of Appeals of Indiana | Memorandum Decision 41A04

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[1] In th is 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. T he Gluffs divide d the ir land int o 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 sid e 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 19 79, 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 P arcels A, B, and C c ould 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 Parcel s A a nd D. The Bryants ow n ed 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, W right , and their successors in interest

. Among other terms, t he 1982 Judgment included a new easement, which applied to all three landlocked parcels

. T he new easementCourt of Appeals of Indiana | Memorandum Decision 41A04

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retained the same boundaries as the 1979 easement, but t he new easement was described as “exclusive. ” Id. at 22. Th e Bryants recorded the 1982 J udgment in Johnson County in their chain of title for Parcel C , but Gluff did not do the
same for Parcel D. 1

[5] Later, t he 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 non

landlocked parcel, to another person, who in turn sold it to the Beetzes in 2013

.

[6] At the time of the 2013 purchase , t he 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 prop erty taxes on the easement, and included the easement in their homeowners’ insurance. None of the other property own ers 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 o wners about who had the authority to
accep t payment from the fire departmen t for damages , hire a contractor, and pay for bridge repairs

.

1 The reco rd 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, t he Beetzes sued the Bryant Trust, the Bryants, the Legans, and the Zimmermans , seeking declaratory judgment . The defendants filed a m otion to dismiss, citing Indiana Trial Rule 12(B)(6). The court granted the motion and dismissed the complaint without prejudice.

[9] Next, t he B eetzes filed a n amended complaint asking the court to determine : (1) if the easement contained in the 1982 Judgme nt 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 al ong with the ow ners 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 Beet zes . T he defendants again moved to dismiss under Rule 12(B)(6) . The court dismissed the complaint with prejudice and this appeal followed. On appeal t he 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 failur e to state a claim tes ts 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 constr ued i n the non

- movant’ s favor. We review a trial court’ s grant or d enial of a Trial Rule 12(B)(6) motion de novo

. We wi ll not affirm such a dismissal unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief u nder any s et of circumstances.Court of Appeals of Indiana | Memorandum Decision 41A04

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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 h ad no notice of its existence.

[12] In State v. Anderson , 241 Ind. 184, 170 N.E.2d 812 (1960), the State sough t to condemn a piece of property , claiming i t had acquired an easeme nt over most of the land f

rom the landowner’s predecessor in interest. T he 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 s ubject 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 lan downer 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 n o actual notice of the easement because she had asked the seller about easements and was told the State h ad no interest in the land other than a narrow, openly

marked 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 app ellee did all that the law requiredCourt of Appeals of Indiana | Memorandum Decision 41A04

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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

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[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

encr oached 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 1 979 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 w ould be entitled to declaratory relief on their claim that they are not bound by the 1982 J udgment 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 o f 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.Court of Appeals of Indiana | Memorandum Decision 41A04

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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 pr ior 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 s tated, “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 53 6 . The Court concluded Skelton had no title to the land unless deri ved 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 Anders on , 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.Court of Appeals of Indiana | Memorandum Decision 41A04

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[21] Reversed and remanded.
Riley, J., and Crone, J., concur.