Flick v. Reuter (IN)

Summary: An adverse possession claim must show substantial compliance with the elements of control, intent, notice, and payment of taxes for a period of ten years.


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Flick v. Reuter, 5 N.E.3d 372 (Ind. Ct. App. 2014), rehearing denied.


Facts: In 1987, Thomas and Margaret Hess allowed their aunt, Jewell Reuter, to live in a mobile home on a small portion (0.8 acre) of their 11.47 acres of land. Reuter established a home on the tract, tended the land, gardened, and installed a septic system and water lines to access a nearby well. After moving onto the land, Reuter received and paid tax statements, which she believed were for her mobile home and the tract of land she occupied. In 1988, the Hesses deeded 2.28 acres of their land to their son. Reuter's mobile home partially existed on the east end of those 2.28 acres. Notably, Reuter’s tract of land was never deeded to her.

For the next 20 years Reuter maintained her land and mobile home. The Hesses and their extended family members, including Eleathia and Gerald Parsley, who later purchased Thomas and Margaret's remaining 9.12 acres, recognized Reuter's ownership.

In 2010, Larry Flick purchased the 2.28 acres from the Hesses’ son. Flick had a survey taken shortly after his purchase, and the survey revealed that Reuter's mobile home, as well as her front yard, sat almost entirely on Flick's property. Additionally, the well that Reuter used and part of her septic system was on Flick’s property. Flick and Reuter were initially friendly, but eventually the relationship soured and Flick offered to buy Reuter’s home. Reuter rejected the offer, and Flick responded by cutting off her water supply by removing the underpinning of her mobile home and severing the lines that accessed his well. Flick also filed a complaint alleging that Reuter was trespassing.

Reuter responded by filing an answer claiming ownership of her land and counterclaimed that Flick committed trespass. Flick failed to timely respond, and Reuter obtained a default judgment against him. However, Flick later moved to set aside the default judgment, arguing that his counsel, “inadvertently missed [Reuter’s] response and neglected to prepare an answer in a timely manner,” and that Flick had a meritorious defense. The trial court, in its discretion, granted Flick’s motion to set aside the default judgment, and denied Reuter’s request to certify the court’s order for interlocutory appeal.

While the trial proceeded, Flick and Reuter’s relationship continued to deteriorate, culminating in Flick entering Reuter’s land again and destroying her plants, as well as installing an electric fence around her mobile home thereby temporarily preventing her from entering. In response, Reuter filed a motion to amend her counterclaim, seeking attorney’s fees and damages, as well as summary judgment on her amended claims. Flick also filed a summary judgment motion.

In 2012, the trial court granted summary judgment for Reuter, concluding that she acquired title to her land by adversely possessing it and establishing a prescriptive easement. The court further concluded that Reuter had not committed trespass. The court awarded Reuter both title and damages because of Flick’s self-help actions (e.g. – installing the electric fence, cutting off her water supply, etc.). Flick appealed.


Holding: Affirmed in Part; Reversed in Part; Remanded. On appeal, Flick argued that the trial court erred in granting summary judgment for Reuter regarding her adverse possession and prescriptive easement claims. Reuter, conversely, argued that the trial court erred in deciding to set aside her default judgment. She also requested appellate attorney’s fees.

The appellate court began by addressing Reuter’s argument regarding the trial court’s decision to set aside the default judgment. Because Flick asserted a meritorious defense to Reuter's claim that she owned the land, the trial court did not abuse its discretion in setting aside the default judgment.

Next, the court addressed Flick’s self-help actions and determined that Flick engaged in conducted intended to drive Reuter from her home, and ignored the remedies offered to him by law. Further, Flick committed trespass to chattel by destroying Reuter’s plants, severing her water lines, and installing an electric fence around her home, as all of the acts involved Reuter’s home and not the land in contention. Therefore the trial court’s damage award was appropriate.

However, the appellate court disagreed with the trial court’s finding of adverse possession. An adverse possession claim must show substantial compliance with the elements of control, intent, notice, and payment of taxes for a period of ten years. The court found that Reuter failed to prove that she paid taxes as required by Indiana Code section 32-21-7-1. Specifically, the valuation records did not show any payment information, and the record showed that Reuter only paid taxes on her mobile home from 2006-2010. Additionally, Reuter’s supplemental affidavit, claiming that she believed her tax payments since 1988 included both her home and the land, was insufficient when combined with the valuation records.

Likewise, the appellate court disagreed with the trial court’s holding regarding Reuter’s prescriptive easement claim. The court stated that there must be evidence of “an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.” Each element must be shown. The court found that, even though Reuter never asked permission, she did not need to because her family relationship implied permission. Further, the court stated that, “an adverse claimant must produce evidence that he or she actually communicated, either explicitly or implicitly, to the servient owner that he or she was using the disputed property under a claim of right.” The court found that Reuter did not produce any evidence indicating this and additionally, her use was permissive. Therefore, Flick was entitled to summary judgment. Subsequently, the appellate court reversed the trial court’s finding that Flick committed trespass because Flick had the right to enter the land that he possessed.

Finally, the appellate court denied Reuter’s request for appellate attorney’s fees. The court stated that damages would only be assessed when an appellant acted in bad faith in order to maintain a wholly frivolous appeal. Because Flick’s appellate argument prevailed, the court found that Reuter could not show Flick’s arguments were, “utterly devoid of all plausibility.”


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By: ATG Underwriting Department | Posted on: Wed, 02/18/2015 - 9:50am