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.

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:

TOM A. BLACK JERE L. HUMPHREY

Plymouth, Indiana Wyland Humphrey Wagner & 

Clevenger, LLP

Plymouth, Indiana

 

IN THE

COURT OF APPEALS OF INDIANA

EARL R. ENGLAND and MARY L. ENGLAND, )

)

Appellants, )

)

vs. ) No. 50A04-1106-PL-297

)

ROB E. HURFORD and JENNIFER M. )

HURFORD, )

)

Appellees. )

APPEAL FROM THE MARSHALL CIRCUIT COURT

The Honorable Robert O. Bowen, Special Judge 

Cause No. 50C01-1105-PL-13 

March 20, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
2

STATEMENT OF THE CASE

Earl R. England (“England”) and Mary L. England (collectively “the Englands”) 

appeal the trial court‟s order granting a preliminary injunction to Rob E. Hurford 

(“Hurford”) and Jennifer M. Hurford (collectively the “Hurfords”). 

We affirm.

ISSUE

Whether the trial court abused its discretion by granting a preliminary 

injunction to the Hurfords.

FACTS

In 2009, the Hurfords owned certain real property located at 15998 18th Road in 

Culver Indiana (“the Property”). Adjacent to the Property, the Hurfords also owned 

additional real property that contained farm land and livestock (“Farm Property”). To 

gain access to his livestock on the Farm Property, Hurford used a gravel driveway that 

went from the main road, traversed the Property, and led back to the Hurfords‟ Farm 

Property. 

On August 9, 2009, England executed a Purchase Agreement and offered to buy 

the Property from the Hurfords. The Hurfords executed a counter offer, which was 

contained in Addendum #1 to Purchase Agreement (“the Addendum”) and provided that 

the Hurfords would retain the right to a fifty-foot easement (“the Easement”) on the 

Property. Specifically, the Addendum provided, “Buyer acknowledges: . . . Seller[s‟]

right to 50[]foot easement on Eastern edge of property as listed in MLS.” (Appellants‟
3

App. 18). The Easement included the gravel driveway that Hurford used to access his 

Farm Property. 

On September 17, 2009, the Hurfords executed a Warranty Deed (“the Deed”), 

conveying the Property to England. The Deed, which was prepared by an attorney from 

the title insurance company, did not contain any reference to the Easement. The Deed 

was thereafter recorded with the county recorder‟s office. England‟s title insurance 

policy, which he obtained on September 24, 2009, contained an acknowledgement of the 

Easement in paragraph five of Schedule B of the policy (“Paragraph 5”). Specifically 

England‟s title insurance policy provided: 

5. NOTE: Purchase Agreement by and between Rob E. Hurford and 

Jennifer M. Hurford (sellers) and Earl R. England (buyer) provides: 

“Buyer acknowledges: . . . 50 foot easement on Eastern edge of property as 

listed in MLS.”

(Appellees‟ App. 3). 

Hurford used the Easement daily to gain access to the Hurfords‟ Farm Property 

and to feed his livestock. There were times that Hurford and England discussed how the 

Easement was to be used. For example, in April 2010, the Englands contacted Hurford 

after some tractors were left on the gravel driveway on the Easement, and Hurford and 

England discussed how the Easement was to be used. 

In June 2010, England had an endorsement issued that deleted Paragraph 5 from 

the title insurance policy. Thereafter, Hurford continued to use the Easement to gain 

access to his Farm Property and livestock. On April 29, 2011, the Hurfords received a 

letter from the Englands‟ attorney concerning the Easement. In the letter, the Englands‟ 
4

attorney acknowledged that “there was some discussion concerning an easement” but 

pointed out that the Deed did not contain any language referring to the Easement on the 

Property. (Appellants‟ App. 38). The letter informed the Hurfords that they should cease 

using any portion of the Property. Approximately two weeks later, around May 13, 2011,

the Englands erected a gate across the Easement. Thereafter, Hurford had to drive 

through one of his alfalfa fields to gain access to his Farm Property and to feed his 

livestock.

In May 2011, the Hurfords filed a complaint, and later an amended complaint, for 

reformation of the Deed as well as for a preliminary and permanent injunction. 

Specifically, the Hurfords sought to enjoin the Englands from interfering with their 

access to the Easement. On June 7, 2011, the trial court held a hearing on the Hurfords‟ 

request for a preliminary injunction. Thereafter, the trial court issued an order granting 

the Hurfords‟ motion for a preliminary injunction and then entered a preliminary 

injunction enjoining the Englands from interfering with the Hurfords‟ use of the 

Easement. The Englands now appeal. 

DECISION

The grant or denial of a preliminary injunction rests within the sound discretion of 

the trial court, and our review is limited to whether there was a clear abuse of that 

discretion. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 484, 487 

(Ind. 2003). To obtain a preliminary injunction, the moving party has the burden of 

showing by a preponderance of the evidence that: (1) the movant‟s remedies at law are 

inadequate, thus causing irreparable harm pending resolution of the substantive action; 
5

(2) the movant has at least a reasonable likelihood of success at trial by establishing a 

prima facie case; (3) the threatened injury to the movant outweighs the potential harm to 

the nonmoving party resulting from the granting of an injunction; and (4) the public 

interest would not be disserved. Id. If the movant fails to prove any of these 

requirements, the trial court‟s grant of an injunction is an abuse of discretion. Id.

The Englands argue that one of the requirements for a preliminary injunction was 

not met. Specifically, the Englands contend that the Hurfords failed to prove a 

reasonable likelihood of success at trial and did not establish a prima facie case for 

reformation of a deed.

The Hurfords‟ complaint sought reformation of the Deed to include the Easement. 

The trial court found that the Hurfords had shown a likelihood of success at trial because 

the Purchase Agreement indicated that the parties had agreed to a fifty-foot easement but 

that “[t]hrough a mistake of the deed preparer, the easement was not included on the 

deed.” (Appellants‟ App. 39, 40). 

Accordingly, we will review whether the trial court abused its discretion by 

finding that the Hurfords met their burden of establishing a prima facie case for 

reformation of the Deed. While the Hurfords were required to establish a prima facie 

case, they were not required to show that they were entitled to relief as a matter of law 

nor were they required to prove and plead a case that would entitle them to relief upon 

the merits. See Ind. High Sch. Athletic Ass’n v. Martin, 731 N.E.2d 1, 7 (Ind. Ct. App. 

2000), trans. denied. To prove a reasonable likelihood of succeeding on the merits, the 

Hurfords needed to establish a prima facie case through “substantial, probative evidence”
6

that they were entitled to reformation of the Deed. See id. Substantial evidence is 

evidence that is “more than a scintilla and less than a preponderance.” Id. (citation 

omitted). 

“Reformation is „an extreme equitable remedy to relieve the parties of mutual 

mistake or fraud.‟” Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 772 (Ind. Ct. App.

2003) (quoting Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994), 

reh’g denied). “The remedy of reformation is extreme because written instruments are 

presumed to reflect the intentions of the parties to the instruments.” Meyer, 797 N.E.2d 

at 772. Therefore, courts in Indiana may reform written contracts only if: (1) there has 

been a mutual mistake; or (2) one party makes a mistake accompanied by fraud or 

inequitable conduct by the other party. Id. 

The Hurfords did not allege that a fraud occurred; therefore, we focus our analysis 

on mutual mistake. Reformations for mutual mistakes are only available if they are 

mistakes of fact and not mistakes of law. Id. “A mutual mistake arises if there has been 

a meeting of the minds, an agreement actually entered into, but the document in its 

written form does not express what the parties actually intended.” Meyer, 797 N.E.2d at 

772 (internal quotation marks and citation omitted). Additionally, a “[m]istake by the 

scrivener will permit reformation of an instrument where it is logically indicated that both 

parties were mistaken as to the actual contents of the instrument.” Essex Group, Inc. v. 

Nill, 543 N.E.2d 393, 396 (Ind. Ct. App. 1989), reh’g denied. 

In a reformation action, it is the intent of the parties that controls. Meyer, 797 

N.E.2d at 772. To determine the true intent of the parties, this court may look to the 
7

parties‟ conduct during the course of the contract. Id. Furthermore, “[w]ritings executed 

at the same time and relating to the same transaction or subject matter will ordinarily be 

construed together in determining the intention of the parties.” Peterson v. First State 

Bank, 737 N.E.2d 1226, 1229 (Ind. Ct. App. 2000), reh’g denied. 

Here, the evidence is undisputed that the Addendum to the purchase agreement for 

the sale of the Property contained a provision that the Hurfords had a right to the 

Easement—specifically, a fifty-foot easement on the eastern edge of the Property—and 

that both parties signed the Addendum. While the title company attorney who prepared 

the Deed failed to include the Easement in the Deed, the conduct of the parties suggests

that they intended that the Hurfords have a right to the Easement. England‟s title 

insurance policy on the Property, which he obtained within days of the issuance of the 

Deed, contained an acknowledgement of the Easement in favor of the Hurfords. 

Additionally, for almost two years after conveying the Property, the Hurfords used the 

Easement daily to gain access to their Farm Property and to feed their livestock. Indeed, 

Hurford and England acknowledged the Easement when they had discussions about 

exactly how the Easement was to be used by Hurford. After England discovered that the 

Deed did not contain any language establishing the Easement, he sent a letter to the 

Hurfords informing them of the same and then erected a fence to block access to the 

Easement. 

Based on the evidence presented, the trial court concluded that the parties intended 

to establish the Easement on the Property but that the Easement was not included in the 

Deed due to a mistake by the deed preparer. Because the conduct of the parties and the 
8

writings executed at the same time and relating to the Deed imply that the parties 

intended to establish the Easement on the Property in favor of the Hurfords, we conclude 

that the trial court did not abuse its discretion by concluding that the Hurfords had 

established a prima facie case for reformation of a deed and had at least a reasonable 

likelihood of success at trial.

1

 See, e.g., Peterson, 737 N.E.2d at 1230 (affirming the trial 

court‟s reformation of a promissory note to reflect the intent of the parties); Essex Group, 

543 N.E.2d at 396-97 (affirming the trial court‟s reformation of a trust agreement to 

include a lump sum provision where the evidence showed that the parties intended the 

provision to be part of the trust agreement). Accordingly, we affirm the trial court‟s 

order granting the Hurfords‟ motion for a preliminary injunction. 

Affirmed.

BAKER, J., and BAILEY, J., concur. 

 

1 The Englands contend that reformation of a deed is not applicable because there is no evidence of a 

mistake in the Deed and that, under the doctrine of merger, the Addendum containing the agreement to 

establish the Easement would have been extinguished and would have merged into the Deed. The 

doctrine of merger provides that 

in the absence of fraud or mistake, all prior or contemporaneous negotiations or 

executory agreements, written or oral, leading up to the execution of a deed are merged 

therein by the grantee's acceptance of the conveyance in the performance thereof. Under 

this doctrine, any existing contracts between the parties, if not carried forward into the 

deed, are extinguished thereby, and no action lies on the contract.

Hastetter v. Fetter Properties, LLC, 873 N.E.2d 679, 683 (Ind. Ct. App. 2007) (emphasis added) (citation 

omitted). Because the doctrine of merger would not be applicable in the absence of mistake and because 

we have concluded that the Hurfords have made a prima facie case for reformation of a deed based on a 

mistake, we leave to the parties to resolve at trial whether the evidence of mistake was sufficient to 

support the claim of reformation of a deed or to preclude application of the doctrine of merger.