Larry Edward Flick v. Jewell Reuter
5 N.E.3d 372
Ind. Ct. App.2014Background
- Reuter (family member) lived on and improved a ~0.8-acre portion of family land from 1987, paid taxes she believed covered her home and land, and used a well and septic that lay partly on a parcel later sold.
- In 2010 Flick purchased 2.28 acres (which included most of Reuter’s occupied area, well, and part of her septic system). A boundary survey showed Reuter’s trailer and yard lay largely on Flick’s parcel.
- Relations deteriorated: Flick severed water lines, removed mobile-home underpinning, mowed and destroyed plantings, and installed an electric fence to exclude Reuter while ownership/disputes were litigated.
- Trial court granted summary judgment to Reuter, finding adverse possession and a prescriptive easement, quieted title to her, and awarded $29,487.70 in damages for Flick’s conduct; Flick appealed.
- The appellate court: (1) affirmed the damage award for Flick’s unauthorized self-help; (2) reversed summary judgment for Reuter on adverse possession and prescriptive easement (finding material failures of proof, chiefly tax payment and permissive use); (3) denied Reuter’s request for appellate fees and affirmed the trial court’s discretion to set aside the prior default judgment.
Issues
| Issue | Reuter's Argument | Flick's Argument | Held |
|---|---|---|---|
| Trial court setting aside Reuter’s default judgment | Default should remain; Flick had no excusable neglect / no meritorious defense | Counsel missed filing; Flick has meritorious defense (tax-payment requirement foils adverse possession) | Trial court did not abuse discretion in setting aside default; Flick alleged meritorious defense |
| Damages for self-help / ejectment statute | Flick’s conduct was wrongful and caused damage | Flick could assert title but must use court remedies (ejectment/writ) | Affirmed $29,487.70: Flick engaged in unauthorized self-help and trespass to chattel; damages appropriate |
| Adverse possession (10-year statutory claim, incl. tax-payment under Ind. Code § 32-21-7-1) | Reuter claimed continuous, open possession and paid taxes (affidavit) | Reuter failed to prove payment of taxes on the land; evidence shows payment mostly for mobile home and is insufficient | Reversed: Reuter failed to prove tax-payment element; summary judgment for Reuter on adverse possession was erroneous |
| Prescriptive easement / permissive use (20-year requirement) and related trespass finding | Reuter argued long-term use of well and septic supported prescriptive easement | Use was permissive (family relationship, implied permission); no clear hostile claim of right | Reversed: use was permissive, not adverse; no prescriptive easement; trespass finding reversed. Court left open implied-easement-of-necessity claim for remand |
Key Cases Cited
- Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005) (adverse-possession tax-payment requirement cannot be disregarded; allows narrow substantial-compliance analysis)
- Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005) (familial/cordial relationships support finding permissive, not adverse, use)
- Whitman v. Denzik, 882 N.E.2d 260 (Ind. Ct. App. 2008) (prescriptive easement elements mirror Fraley’s adverse-possession formulation)
- Bass v. Salyer, 923 N.E.2d 961 (Ind. Ct. App. 2010) (permissive use defeats prescription)
- Coleman v. Vukovich, 825 N.E.2d 397 (Ind. Ct. App. 2005) (trespass to chattel elements)
- Adams v. Holcomb, 77 N.E.2d 891 (Ind. 1948) (distinguishing ejectment as a possessory remedy)