Kathryn Arnold v. Dennis Arnold (mem. dec.)

MEMORANDUM DECISION FILED

Apr 15 2016, 8:25 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court

Court of Appeals regarded as precedent or cited before any and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffry G. Price Patrick J. Roberts Coleman Beckley Sharon L. Breitenbach Peru, Indiana Roberts Law Firm

Peru, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kathryn Arnold, April 15, 2016 Appellant-Defendant/Counterclaimant, Court of Appeals Case No.

52A02-1511-PL-2062 v. Appeal from the Miami Superior

Court Dennis Arnold, The Honorable J. David Grund, Appellee-Plaintiff/Counterclaim Judge Defendant 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. Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016 Page 1 of 3 [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 rent- free 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 Court of Appeals of Indiana | Memorandum Decision 52A02-1511-PL-2062| April 15, 2016 Page 2 of 3 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.