Court of Appeals of Indiana | Opinion 10A01-1710-CP-2309 | May 29, 2018 Page 1 of 12

ATTORNEY FOR APPELLANTS

John A. Kraft

Young, Lind, Endres & Kraft

New Albany, Indiana

ATTORNEY FOR APPELLEES

Matthew J. McGovern

Anderson, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Wayne and Donna Kirchgessner,

Appellants-Plaintiffs,

v.

Betty Kirchgessner, Albert 

Kirchgessner, Norbert 

Kirchgessner, Marcella 

Kirchgessner, Stephen 

Kirchgessner, Mary Ann Lee, 

Fred Kirchgessner, Mary Ann 

Emil Kirchgessner Junior, Mary 

Kirchgessner, Edward 

Kirchgessner, Ted Graf, 

Marcella Graf, James Fessel, 

Mildred Fessel, Martha Rhodes, 

Everett Rhodes, Mary 

Kirchgessner, Clifford 

Kirchgessner, Julia Bowe, 

Norbert Renn, Adelaide Renn, 

Board of Commissioners, Clark 

County, Indiana, and the 

Commissioners Paul Garrett, 

May 29, 2018

Court of Appeals Case No.

10A01-1710-CP-2309

Appeal from the Clark Circuit 

Court

The Honorable Richard Striegel, 

Special Judge

Trial Court Cause No.

10C01-8906-CP-214
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Larry Coates, Larry Dean in 

their official capacities,

Appellees-Defendants

Vaidik, Chief Judge.

Case Summary

[1] Indiana Rule of Trial Procedure 60(B)(7) allows a court to grant relief from a 

judgment if (1) “the judgment has been satisfied, released, or discharged,” (2) “a 

prior judgment upon which it is based has been reversed or otherwise vacated,” 

or (3) “it is no longer equitable that the judgment should have prospective 

application.” Rule 60(B) provides that a motion for such relief “shall be filed 

within a reasonable time.” In this case, the trial court granted relief under the 

third clause of Rule 60(B)(7)—the “no longer equitable” provision—and the 

appealing parties argue that the motion was not filed within a reasonable time. 

We have said that what constitutes a “reasonable time” under Rule 60(B)

depends on the specific circumstances of each case. Here, the motion was filed 

more than twenty-five years after the judgment was entered. That is a long 

time. But under the unique circumstances of this case, it was not an 

unreasonable time. We therefore affirm the decision of the trial court. 
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Facts and Procedural History

[2] In 1949, Anthony, Emil, and Fred Kirchgessner acquired a large tract of land in 

western Clark County. The land is situated north of St. John Road, and 

members of the Kirchgessner family have accessed the land using Kruer Road, 

which runs north from St. John Road. The large tract was gradually broken up, 

and Wayne and Donna Kirchgessner purchased a forty-acre parcel from 

Anthony Kirchgessner’s estate in June 1984.

[3] Just over a year later, Wayne and Donna filed a lawsuit against the owners of 

nearby parcels, including numerous other Kirchgessners, and the Clark County 

Board of Commissioners. Regarding the non-government defendants, Wayne 

and Donna alleged that their parcel was “landlocked,” that Kruer Road was 

“the only way of ingress and egress,” and that defendants Albert and Betty 

Kirchgessner “have harrassed [sic] and physically prevented use of Kruer Road 

and have denied Plaintiffs access to their property[.]” Appellants’ App. Vol. II 

p. 16. They asked the court to “[q]uiet title to the easement claimed by 

Plaintiffs known as Kruer Road” and sought damages related to the alleged 

blocking of the road. Id. at 17-18. As to the county commissioners, Wayne and 

Donna claimed that Kruer Road “has been maintained as a Clark County road 

since at least 1967,” that before they bought their parcel one of the 

commissioners “represented” to Wayne “that Kruer Road was a County road 

and would be maintained as such,” that Wayne “relied upon said 

representation at the time he purchased his property in 1984,” and that the 

county “has since failed to maintain said road to the detriment of Plaintiffs and 
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as a result thereof Plaintiff[s’] property value has decreased.” Id. at 16. Wayne 

and Donna asked the court to “[d]eclare the roadway known as Kruer Road[] a 

County Road and order the Clark County Board of Commissioners to resume 

the maintenance of Kruer Road as a County Road for the benefit of Plaintiffs 

and Defendants.” Id. at 18.

[4] What happened with the case over the next four years is unclear from the 

record, but in September 1989, Wayne and Donna filed an amended 

complaint.1 Their allegations with regard to the non-government defendants 

remained largely the same, but they added further detail to their claim that 

Kruer Road was a “county road.” Id. at 24, 26. 

[5] In an answer to the amended complaint, a group of the non-government 

defendants, including Albert and Betty Kirchgessner, explained that they were 

not opposed to having their property crossed by Wayne and Donna but that 

there was a dispute regarding the appropriate path of the crossing. The same 

defendants later entered into a Stipulation of Facts with Wayne and Donna, 

which in turn was attached to a motion for summary judgment that Wayne and 

Donna filed in April 1990. The parties stipulated that Kruer Road was a “Clark 

County road” and that, even if it were not, it “may be used by Wayne and 

Donna Kirchgessner [and] their heirs, successors and assigns to gain access to 

their property[.]” Id. at 35, 36. The stipulation also included provisions 

 

1 Also in 1989, the original 1985 case number (85-S1-90) was replaced with the current 1989 case number 

(10C01-8906-CP-214).
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addressing how future obstructions of and improvements to the road would be 

handled. In light of the stipulation by the non-government defendants, Wayne 

and Donna’s memorandum in support of their motion for summary judgment 

was directed entirely at the government defendants, focusing on the claim that 

Kruer Road was a county road.

[6] In their response to Wayne and Donna’s motion, the government defendants 

disputed that Kruer Road was an official “county road,” a designation that they 

said only the county itself could make, and one that would impose heightened 

maintenance burdens and legal liabilities on the county. Id. at 55-63. However, 

they acknowledged a history of county maintenance of the road, and they

indicated that they would have no objection to the court declaring the road a 

“public highway by use” and ordering them to perform limited maintenance on 

the road (laying gravel “from time to time”). Id. at 61-63. The government 

defendants described this as “[a]n ideal resolution of the family dilemma that 

brought this matter to court[.]” Id. at 62-63.

[7] On October 1, 1990, the trial court issued its order on Wayne and Donna’s 

motion (“1990 Entry”). The court declared the road a “public highway by use” 

and “approve[d] the agreement of the governmental defendants” to maintain 

the road as proposed. Id. at 67. The court added that “[t]he previously 

tendered Stipulation between the plaintiffs and the non-governmental 

defendants is hereby ordered withdrawn[.]” Id. at 68. The court concluded, 

“That Judgment is now hereby entered in favor of plaintiffs in accord with the 
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terms hereof. Further, upon plaintiffs’ motion, the remainder of this entire 

action is hereby ordered dismissed with prejudice.” Id.

[8] Fast forward twenty-two years. In late 2012, the county paved a new Kruer 

Road adjacent to the original road. Three years later, in December 2015, 

Richard and Theresa Williams filed a Motion to Vacate Summary Judgment 

Entry of October 1, 1990.2 They claimed that the original Kruer Road runs 

through their property, that “the newly paved Kruer Road is the primary access 

road over which vehicles regularly travel and it replaced the former ‘roadway,’” 

and that “the need for any commissioner involvement on the former ‘roadway’ 

from 1990 is no longer in existence.” Id. at 70-71. They argued that “[t]here is 

no legal reason to continue the existence of the ‘roadway’ and to, by extension, 

continue this burden or cloud on the title of the real estate owned by your 

movants” and that if the 1990 Entry is vacated the county commissioners “will 

no longer be exposed to any risk of liability in an old roadway that has been 

replaced by the newly paved Kruer Road.” Id. at 71-72.

[9] Wayne and Donna filed an opposition to the motion, and the trial court held a 

hearing. The parties treated the motion as one for relief from judgment under 

Indiana Trial Rule 60(B). Wayne testified, and when asked why he didn’t want 

the original Kruer Road to be vacated, he said, “I’ve been using it for forty-three 

 

2 The Williamses were not parties to the original litigation, but Theresa’s mother, Mary Kirchgessner, was. 

Mary joined in the motion to vacate, but she died while it was pending. In Wayne and Donna’s response to 

the motion, they challenged the Williamses’ “standing” to pursue the motion, see Appellants’ App. Vol. II p. 

141, but they don’t raise any such argument on appeal. 
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(43) years, that my grandpa built, so I’m going to continue to use that road until 

somebody tells me I can’t or stops me from using it.” Tr. p. 143.

[10] After the hearing, the trial court issued an order granting the Williamses’ 

motion. The court cited Rule 60(B)(7), which allows for relief from judgment if 

(1) “the judgment has been satisfied, released, or discharged,” (2) “a prior 

judgment upon which it is based has been reversed or otherwise vacated,” or (3) 

“it is no longer equitable that the judgment should have prospective 

application.” Specifically, the court relied on the third clause—the “no longer 

equitable” provision:

Given that the Commissioners have eliminated (by building [the 

new Kruer Road]) the 1990-based need for a court-created 

roadway, the exigencies for the 1990 temporary roadway have 

been eliminated. The court, given all the circumstances and risks 

involved, concludes that it is necessary to vacate the roadway 

portion of the 1990 Entry and that the same should no longer 

have prospective effect. T.R. 60(B)(7)[.]

Appellants’ App. Vol. II p. 180.3 The court said that Wayne and Donna could 

no longer “enter upon” the original Kruer Road and that the Williamses are 

free to “close off all access” to it. Id. at 182. 

 

3 The trial court also found that the Williamses had satisfied Rule 60(B)(8), which provides for relief from 

judgment for “any reason justifying relief from the operation of the judgment, other than those reasons set 

forth in sub-paragraphs (1), (2), (3), and (4).” Wayne and Donna challenge that conclusion on appeal, but 

because we affirm the trial court’s conclusion that relief is appropriate under Rule 60(B)(7), we need not 

address 60(B)(8).
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[11] Wayne and Donna now appeal.4 

Discussion and Decision

[12] Wayne and Donna launch several attacks on the trial court’s decision, but the 

only one that requires detailed discussion is their argument that the Williamses’

Rule 60(B) motion was untimely. The rule includes eight sub-paragraphs that 

set forth different grounds for granting relief from judgment. Ind. Trial Rule 

60(B). A motion under sub-paragraph (1), (2), (3), or (4) must be filed “not 

more than one year after the judgment, order or proceeding was entered or 

taken,” while a motion under sub-paragraph (5), (6), (7), or (8) “shall be filed 

within a reasonable time.” Id. In this case, the trial court granted relief because 

it found—under the third clause of sub-paragraph (7)—that it would no longer 

be equitable for the 1990 Entry to have prospective application. As such, the 

question is whether the motion was filed “within a reasonable time.” The 

determination of what constitutes a “reasonable time” for purposes of Rule 

60(B) is a matter within the trial court’s discretion. Jordan v. State, 549 N.E.2d 

382, 384 (Ind. Ct. App. 1990), reh’g denied, trans. denied. Therefore, we will 

reverse only for an abuse of that discretion.

 

4

In 1998, several people executed a “Grant of Easements” purporting to give Wayne and Donna an 

easement over Kruer Road. See Appellants’ App. Vol. II pp. 166-71. In its order granting relief from 

judgment, the trial court found any claim to a private “easement” based on that document to be “void and of 

no legal effect” given the conflict with the 1990 declaration that the road is a “public highway by use.” Id. at 

177-78. Wayne and Donna do not challenge that part of the trial court’s order.
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[13] Determining whether a motion under Rule 60(B) was filed within a reasonable 

time “depends on the circumstances of each case, as well as the potential 

prejudice to the party opposing the motion and the basis for the moving party’s 

delay.” Parham v. Parham, 855 N.E.2d 722, 728 (Ind. Ct. App. 2006), trans. 

denied. Here, Wayne and Donna focus on the fact that the Williamses filed 

their motion twenty-five years after judgment was entered. “Inherently,” they 

say, “asking for relief from a judgment after twenty-five years is not within a 

reasonable period of time.” Appellants’ Br. p. 15. 

[14] But the fact that judgment was entered more than twenty-five years ago must be 

balanced against the fact that the change giving rise to the motion—the 

construction of the new Kruer Road—did not occur until late 2012. Wayne 

and Donna make no argument that the Williamses contributed to the delay in 

the construction of the new road, that they could have done something to get 

the road built sooner, or that they should have filed their motion sooner than 

they did. Furthermore, Wayne and Donna offer no response to the following 

explanation by the Williamses for the three-year delay between the construction 

of the new road and the filing of the motion in December 2015:

In the three year period between [the opening of the new Kruer 

Road] and the motion for relief from the 1990 order, [the 

Williamses] diligently conducted title searches to ascertain all 

persons who would be affected by the vacation of “Old Kruer 

Road.” They then obtained consent forms from each of these 

property owners. [The Williamses] also obtained a consent from 

Clark County. Significantly, [the Williamses] obtained this 

consent on October 22, 2015. [The Williamses] filed their 

motion for relief from the judgment less than six weeks later.
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Appellees’ Br. p. 26 (citations omitted). Wayne and Donna do not deny that 

the Williamses did all those things, nor do they argue that it should have taken 

the Williamses less than three years to do them, nor do they otherwise assert 

that three years was an unreasonable amount of time. In fact, in addressing the 

timeliness of the motion, Wayne and Donna don’t even mention the new Kruer 

Road, let alone the fact that it was built twenty-two years after the judgment.5 

[15] There is no question that twenty-five years is a long time. However, that does 

not necessarily mean it was an unreasonable time. Again, determining the 

timeliness of a motion under Rule 60(B)(7) requires consideration of the specific 

circumstances of the case, see Parham, 855 N.E.2d at 728, and we afford our 

trial courts discretion in making such determinations, Jordan, 549 N.E.2d at 

384. In this unique case—where the county didn’t build the new road until 

twenty-two years after the original judgment, and where the Williamses could 

not have filed a viable 60(B) motion before the new road opened—we cannot 

say that the trial court abused that discretion by finding the motion to be timely.

[16] Wayne and Donna argue that even if the Williamses’ motion was timely, the 

“no longer equitable” clause of Rule 60(B)(7) is not applicable in this case. 

They acknowledge that the construction of the new Kruer Road constituted a 

change in circumstances but argue that it was reasonably foreseeable when 

judgment was entered in 1990 and therefore should not be the basis for the 

 

5 The availability of the new Kruer Road is also fatal to Wayne and Donna’s claim that they will be 

“severe[ly]” prejudiced by the closing of the original road. See Appellants’ Br. p. 16.
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equitable relief contemplated by the third clause of 60(B)(7). Appellants’ Reply 

Br. p. 10 (citing State v. Martinsville Dev. Co., 366 N.E.2d 681, 684 (Ind. Ct. App. 

1977)). We tend to agree with the trial court’s assessment that it would be 

inequitable, given the availability of the new Kruer Road, to require the 

Williamses and the county to continue bearing the burdens and risks associated 

with the original road. In any event, Wayne and Donna didn’t make their 

“reasonably foreseeable” argument—in fact, they didn’t mention the third 

clause of Rule 60(B)(7) at all—until their reply brief, leaving the Williamses no 

chance to respond. “[A]n argument raised for the first time in a reply brief is 

waived.” U.S. Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790, 797 n.5 (Ind. 2000). 

[17] The remainder of Wayne and Donna’s arguments can also be easily disposed 

of. They say that the 1990 Entry was an “agreed judgment” and argue that 

Rule 60(B) relief is not available for agreed judgments. The Williamses assert 

that Wayne and Donna did not make this claim in the trial court, thereby 

waiving it for purposes of appeal. Wayne and Donna do not dispute this in 

their reply brief. As such, we hold that the issue is waived. See Cavens v. 

Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“Issues not raised at the trial court 

are waived on appeal.”).

[18] Wayne and Donna also note that the trial court characterized the 1990 Entry as 

an interlocutory order, and they cite our holding in Mitchell v. 10th and The 

Bypass, LLC that Rule 60(B) does not authorize a motion for relief from an 

interlocutory order. 973 N.E.2d 606, 612 (Ind. Ct. App. 2012). What they fail 

to recognize is that our Supreme Court granted transfer in Mitchell and reached 
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the opposite conclusion. Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 974 

(Ind. 2014) (“LLC is not precluded from seeking Trial Rule 60(B) relief from 

the trial court’s January 2010 order on grounds that the order was not a final 

judgment.”).

[19] Finally, Wayne and Donna contend that the trial court placed the burden of 

proof on them instead of on the Williamses. They cite the court’s conclusion 

that “Wayne and Donna have not put forth any evidence, or prima facie claim, 

to establish a meaningful, legal or equitable reason why the [Motion to Vacate]

should not be granted.” Appellants’ App. Vol. II p. 181. But nothing in the rest 

of the court’s order, or elsewhere in the record, suggests that this statement was 

anything more than an observation that Wayne and Donna failed to rebut the 

Williamses’ showing that the 1990 Entry has become inequitable.

[20] Because the trial court acted within its discretion in finding the Williamses’ 

Rule 60(B) motion to be timely, and because Wayne and Donna have not 

demonstrated any other error, we affirm the trial court’s grant of the motion. 

[21] Affirmed.

Barnes, J., and Pyle, J., concur.