*1 ting hearsay prior evidence related to two testimony, it was believed Ed- Hardiman’s Wager shootings jail the caller. Detective relating and evidence to wards to speaking Edwards was code calls, testified phone and the prop- house trial court Adrian, Ealy, Hardiman. Edwards erly Directed denied Edwards’ Motion for Ealy and argues that without Hardiman’s Verdict. have
testimony the did not a case State Affirmed. Essentially, him. in- Edwards is against to viting reweigh us evidence. We KIRSCH, J., FRIEDLANDER, J., decline invitation. concur. phone In a call made June Ed- Hardiman, y’all asked been “[W]hat wards (Tr. 530). doing p. and shit?” —huntin’ Edwards, “[T]he
Adrian also told witnesses],” got “I’m
thing they is no (Tr. your out
tryin’ to have back there.” 531).
p. learned that Fos-
On June Edwards Moss, ter, and Adkisson were listed HUNTINGTON, Appellant- Debra case against witnesses the State Plaintiff-Cоunterdefendant, Then him for Solomon’s murder. on the morning June Moss Adkisson killed. told
were Adrian Edwards Tommy RIGGS, Riggs, Tom Rosie day killed Later that someone Moss. Riggs, Riggs, Appel Barbara Ealy, Ed- telephone conversations lees-Defenants-Counterclaimants. said, ‘Well, buy you got to that last wards No. 69A01-0607-CV-318. me, too, man ... for real cause one for man, please the last I need ... that’s car Appeals of Indiana. Court me, you that for man....” make sure do 570-71). (Tr. Ealy also told pp. Edwards March (Tr. 647). “B B buy p. & Blue Car.” gonna Ealy responded, buy “Yeah—I’m (Tr. 571). p. Ealy took
it....” that ex- Foster,
change to mean who drove a blue
car, needed be killed.
Accordingly, presented the State suffi- the fact-finder to permit
cient evidence to beyond reasonable
conclude doubt aided, intentionally knowingly
Edwards
induced, or else to commit caused someone § 35-41-2-4.
the murders. See I.C.
Thus, compelled trial not court was
grant Edwards’ Motion Directed Ver-
dict.
CONCLUSION we find trial foregoing,
Based did not its discretion admit-
court abuse *2 Smith, L. Maggie Craig, Darren A. n IN, Reynolds, LLP, Indianapolis,
Locke Attorneys Appellant. for Eаton, Versailles, IN, Larry Attorney L. Appellees. OPINION RILEY, Judge. THE
STATEMENT OF CASE Appellant-Plaintiff, Huntington Debra (Huntington), appeals the trial court’s de- Summary Judgment nial of her Motion for grant Appellees-Defendants’, and its (Tom), Riggs Riggs, Tommy Tom Rosie (col- (Barbara) Riggs, Riggs and Barbara lectively, the Riggses), Motion for Sum- mary Judgment. Summary reverse and Judg-
We enter Huntington. ment in favor of ISSUES ap- raises three issues on peal, which we consolidate and restate as following two issues: (1) the trial court Whether erred de- nying Huntington’s Motion for Sum- mary Judgment claiming that she by acquies- failed to establish title cence or over land; disputed tract of (2) the trial Whether court erred in granting Riggses’ Motion for Summary Judgment, thereby quiet- disputed title over the tract Riggses. favor of the AND FACTS PROCEDURAL HISTORY The before case us involves owner- a tract ship dispute Ripley of land County, Indiana. In Charles Hunt- (2) feet, father, (Appel- “two acres more or less.” purchased Huntington’s ington, 213-14). App. pp. lant’s 1596 East located to the east was Road 450. purchased Barbara the Von Groskinsky’s, Riggs- owned survey com- Groskinsky’s property. The *3 approximately In in title. predecessors es’ part purchase indicated pleted as bought right- a 1953, B & 0 Railroad the in the con- Disputed Tract as included the Huntington located between the of-way 2004, Huntington and the veyance. Thereaf- Groskinsky properties. fight.” (Appellant’s and Van a Riggses “got into 242). ter, County Boаrd of Commis- Ripley dispute, As a result of the App. p. son, Tom, along County Road 150 East erected a fence constructed Barbara’s sioners thirty the outer boundaries of the road is a right-of-way. The on the through the middle Tract. The fence went wide, completely road located foot two lane Huntington’s driveway prevented and Groskinsky’s and bi- property on the Von East, County requiring Road 150 access its far northwest cor- the land from sects through a ditch and Huntington to drive ner, Huntington’s bordering on the almost delivery period of water for a preventing southeasterly in a di- going property, until alternate route could be of time rection. constructed. County constructiоn of Prior 4, 2004, Huntington filed On November East, the Board of Commission- Road 150 requesting the trial court to Complaint for Relo- a Notice of Petition published ers either or ad- quiet Road, County describing pro- cation of granting in addition to possession, verse “dividing road as the lands posed injunction damages and for permanent et ux. on the west Huntington, L. Charles 2004, 20, trespass. On December Groskinsky on the east.” Joseph Von Answer, along with a Riggses filed their 141). Although the p. (Appellant’s App. asserting quiet title to real Counterclaim did not coincide with road estate, damages trespass, perma- for and a following properties, both line between injunction. Subsequently, on October nent Huntingtons construction 3, 2005, summary judg- Riggses sought Groskinskys appeared to treat raised in their allegations ment on the marking the border between their road as month, on That same Octo- Counterclaim. Now, ownership properties. two 31, 2005, Huntington opposi- filed her ber County between the northwest corner Summary for Riggses’ tion to the Motion disput- Huntington’s property Road she filed Judgment. Contemporaneously, Tract). (the Disputed ed. Summary Judgment, Motion for her own designation of evidence. together with her Huntington’s death Following Charles 4, 2005, filed November On testate to Robert property passed his Huntington’s Motion Opposition In his Huntington’s brother. Huntington, Summary Judgment designation for will, was de- bequeathed proрerty evidence. and two acre lot “my as residence scribed 24, 2006, (Appel- Road 450 N.” the trial court held at 1596 East March On 209). acquired respective motions p. Huntington hearing parties’ App. lant’s summary judgment. April from her On title to the for record 5, 1999, granted court a Partial with the deed the trial brother on March Riggs- Summary Judgment favor rectangular as a describing all of their Counterclaim es on Counts measuring 100 feet width tract Huntington’s Summary denied Motion for appeal, On we are bound to the same 29, 2006, Judgment. On June following court, standard as the trial and we consid Huntington’s Error, Motion Correct er those matters which were designat trial court stated that its designa- ed at summary judgment stage. judgment “partial” tion of the as was in- reweigh evidence, We do not the- but we accordingly correct and revised and reis- liberally construe all designated evidentia- sued Summary Judgment. its Order for ry material in light most favorable to nonmoving party to determine whether appeals. now Additional a genuine there is provided facts will be issue of material fact necessary. grant trial. Id. A of summary judgment AND DISCUSSION DECISION may be *4 upon any theory affirmed sup contends the trial court ported by designated materials. Id. at in denying erred her Summary Motion for 439. The fact parties that the make cross- Judgment by entering grant- an Order motions for summary judgment does not ing Riggses’ Summary Motion for Instead, alter our standard of review. Id. Judgmеnt. we must consider each separately motion to determine moving
I. whether the party Standard Review is of entitled judgment as a matter of law. Our standard of review of a summary Id. judgment order is summary well-settled: judgment appropriate if the “designated II. Huntington’s Motion for evidentiary matter shows that there is no Summary Judgment genuine any issue as to material fact and appeal, Huntington On contends that the moving party judg is entitled to trial court in denying erred her Motion for ment as a matter of law.” Ind. Trial Rule Summary Judgment. Specifically, Hunt- 56(C). Relying specifically designated ington asserts that designated her evi- evidence, moving party bears the bur dence prima establishes a ease to facie den of making prima showing that facie quiet title to the by Tract both there genuine are no of issues material acquiescence by adverse fact and that moving party is entitled Raising both theories ownership judgment aas matter of law. Commer claims, land as separate Huntington pres- Laundry cial Coin Sys. Enneking, v. 766 ents us with support individualized to- 433, N.E.2d (Ind.Ct.App.2002). 438 If the hand, wards each doctrine. On the other moving party require meets these two although Riggses separately failed to ments, the burden shifts to the nonmovant respond to Huntington’s claim of by title to set forth specifically designated facts acquiescence court, before the trial showing that genuine there is a issuе for Riggses argued during summary judg- trial. Id. A genuine issue of material fact ment hearing that the by doctrine of title exists concerning where facts an issue acquiescence part fact parcel which dispose litigation are dispute doctrine of possession or where adverse undisputed material facts could not be capable are considered as a supporting conflicting separate theo- ry inferences on such an of acquiring issue. if title over the Disputed Even undisputed, facts are Tract. summary judg though Even on ap- ment is inappropriate peal where the record now devote six pages disputing Hunt- reveals an applicаtion incorrect ington’s quiet by claim, the law title to the facts. Id. they continue to consider the by title ac-
1267
Church,
80,
possession Presbyterian
and title
135 Ind.
N.E.
quiescence
34
(1893); Wingler
Simpson,
doctrines as one and the same.
737
v.
93 Ind.
(1884).
201, 1884
10332
WL
by Acquiescence
A. Title
later,
Thirty years
we reiterated the
research,
doctrine of
Based on our
Kirk,
Ind.App.
Adams rule Bubacz v.
91
by acquiescence
theory
establishes a
(1930)
479,
where, presented
back emphasized Adams and ad- “[w]hen Designated B. Huntington’s Evidence agree to joining landowners erect a fence line, estopped are legal as a Huntington’s designated evidence dis- legal denying from that this is the bound- predecessors closes that in 1953 the in title ary line.” Id. While we reiterated the rule lots, adjoining Charles Adams, time, proponed in at the same we Groskinsky, Joseph Von received no- by stating: principles clarified its Ripley County tice from the Board of agreement express The line need not be establishing Commissioners the construc- may parties’ be inferred from the “dividing tion of Road 150 East as actions, but there must be evidence of Huntington, the lands of L. ux. Charles et some as to the line. Joseph Groskinsky west *6 improvement up of the land Use 141). east.” (Appellant’s App. p. the alleged boundary may suffi- the However, the location road failed to satisfy requirement cient to the of an follow the strict line between if adjoining the landowner properties, both and instead was built en- in acquiesces. Ownership of the land tirely Groskinsky’s creating on a tri- this manner in parties vests even angle by running from a far northwest though property has not been held corner, bordering Huntington’s almost on statutory period required for the under property, southeasterly in a direction. theory possession. a of adverse The evidence further shows that after con- (internal omitted). Id. at 172-73 citations road, ap- struction of the both families Because we affirmed the trial court’s Or- peared to treat the road as a der, quieting by acquiescence, title we con- properties. marker between their Hunt- unnecessary cluded that to discuss “[i]t ington personally testified that she on lived Freiburgers the second issue raised property from 1957 to 1974. She add- regarding Frys’ claim pos- of adverse family ed that her used and maintained the at session.” Id. 173. own, Disputed Tract as their mowed the portion, driveway usable and built a reсently, Most the doctrine of ac Disputed northwest corner of the Tract. quiescence was mentioned dicta Piles Following Huntington’s death in Charles Gosman, N.E.2d n. 2 1013 Huntingtons’ continued use (Ind.Ct.App.2006). Repeating Freibur- occupy Disputed Tract. The Von ger’s holding, we nonetheless declined to Groskinskys any in- principle light address never made claim of of Piles’ facts property. “because our terest in decision is based on Gos- Likewise, affidavit, in her Cleona 4. and her late [Barbara] husband and Huntingtons and Sparks, neighbor predecessors paid all of the Grosinskys Van since stated taxes on the above described real estate. County Road 150 East marked the bound- 5. and her latе [Barbara] husband ary properties. between the two families’ all predecessors of their in title to the years She added that the almost 50 “[i]n above described real estate have exer- County I have lived 1431 East cised exclusive control over the above North, Road 450 and until [ ] October or so real degree estate use con- anyone I never knew who lived trol that is normal customary con- County East of Road 150 East to claim sidering land; the characteristics of the any interest im- whereas, [Huntington] has exercised no mediately West of Road 150 East.” control of the said real estate. 146-47). (Appellant’s App. pp. Further- 6. and her late [Barbara] husband and more, though purchased even Barbara all predecessors of their in title to the Groskinsky land in 1995 and sur- her above described real estate have demon- vey completed part of the purchase strated the intent to claim full ownership part identified the Tract as of the above supe- described real estate conveyance, Huntington family contin- others; rights rior to the of all whereas occupy ued to use and the land without [Huntington] has demonstrated no in- interruption by Riggses until 2004. tent to claim full ownership thereof. Riggses’ Designated C. Evidence 7. [Huntington’s] actions respect In Response to the land were give insufficient to ac- In response Huntington’s evi tual or Riggs] constructive notice to [the dence, not to designate choose of [Huntington’s] intent and exclusive evidence, any specific they but instead ar control of the real said estate. gued only the doctrine of title [Huntington] has no evidence each acquiescence was the same as claim for continuously of the above elements However, appeal, required years. ten pages now dedicate six to address the 219). (Appellant’s App. p. Huntington’s acquiescence merits of claim. *7 before, As we have stated numerous times affidavit, We note that Barbara’s “issues not raised before the trial court on setting legal while forth the elements a for summary judgment cannot argued for i.e., control, claim possession, of adverse appeal the first time on and are therefore intent, notice, duration, very limited See, e.g.,
waived.” Dunaway v. Allstate specific substantiating legal on facts her Co., 376, (Ind.Ct.App. Ins. 813 N.E.2d 387 Fraley conclusions. v. Minger, See 829 2004). (Ind.2005). though N.E.2d 486 Even Even assuming arguendo recognize the we that Huntington did not ob Riggses’ argument respect ject admissibility with to the the- of this affidavit ory waived, by acquiescence summary of title is not during judgment hearing, we only designated evidence for our re- are nevertheless cautious about its sub 56(E). view upon pursuant is the evidence relied to rebut stantive relevаnce to T.R. 56(E) Huntington’s claim requires for title adverse Trial Rule that affidavits possession. In respect, Riggses opposing summary judgment this “set forth mainly focus our attention Barbara’s such facts as would be admissible in evi ” affidavit, which in pertinent part: states dence .... “Mere assertions of conclu-
1270
County
impending
in an affidavit will not
construction of
Road
...
sions of law
Johnson,
East,
Huntingtons
v.
550 N.E.2d
Rubin
150
both the
suffice.”
(Ind.Ct.App.1990),
Groskinskys
agree-
trans. denied.
327
actions inferred some
However,
consider
a trial court’s
of the
respect
ownership
while
ment with
conclusory statements or matters
ation of
Disputed
Freiburger,
Land. See
439
inadequate under
otherwise
forty
fifty
affidavits
at 172. For the next
N.E.2d
56(E)
error,
constitutе
the fail
notice,
T.R.
years
receipt
after
the ad-
timely objection constitutes
a
ure to raise
if
joining
County
landowners acted as
Douglas
claim of error.
of such
waiver
Road 150 East marked their
(Ind.Ct.
Monroe,
N.E.2d
line,
in effect treated the road as
Although
conclusory
Barbara’s
App.2001).
establishing
prop-
a fence
the two
between
ap
thus be considered on
statement will
Huntingtons
The
used and occu-
erties.
review,
inquiry
our
does not end
pellate
pied
They improved upon
the tract.
it
conclusion recited the
simply
such
because
mowing
portion
the usable
of the wooded
standard for a claim of
appropriate legal
traсt,
they
yard,
as
did their own
See id. As we stated
possession.
adverse
building
driveway
on its northwest cor-
above,
summary
opposing
judg
party
indicating,
ner. No evidence is before us
present
specific
us with
facts
ment must
slightest,
even
that the Von Groskin-
genuine
that there is
issue
showing
actions,
sky family objected to these
either
Here,
find that Barbara’s affida
trial.
we
expressly.
implicitly
specific
sup
facts
vit fails to include
By
Riggses
pos-
the time the
came into
legal
her
assertions.
porting
Disputed
session of the
Land
designate
Riggses further
The
Huntington’s had held the track for well
Dis-
are the titleholders of record
beyond
statutory period required
un-
purchase
puted Land since their
theory of
der a
See
Groskinskys
from the Von
real estate
designated by
The
id.
173.
evidence
present us
a 1999
They
also
Riggses merely covers the actions under-
recording that
the will of
court order
during
conveyance,
taken
their
and not
proper-
Huntington
Charles
described
during
predecessor in
title. Accord-
ty
“my residence and two acre lot at
ingly,
ownership
find that
we
the land
(Appel-
1596 East
Road 450 N.”
by acquiescence
vested
in the
209).
court
App. p.
lant’s
order does
family
Riggses acquired
before the
title to
description of the land.
legal
not include a
Therefore,
Tract.
as this
D. Conclusion
fine
is not
bind-
sum,
designated
based on the
owners but also on their
us,
interest,
we conclude that Hunt
successors
are now
evidence before
*8
ington presented
prima
showing estopped
disputing Huntington’s
a
from
facie
genuine
ownership
Disputed
that
is no
issue of material
over the
Land. See
there
Adams,
Thus,
Laundry Sys.,
fact.
Coin
forty years
par-
before suit was
predecessesors
ties’
interest had estab-
KIRSCH, J., concurs.
lished a lane on what
believed was the
FRIEDLANDER, J.,
concurs with
line. The
confusion as to
separate opinion,
Judge
in which
KIRSCH
actual
location
*9
join.
RILEY
in
fact that the line
Judge
large part
and
due
to the
by acquiescence,
regard
of title
we do not nеed to
to her claim of adverse
Huntington's
address
second assertion with
posses-
in
by invoking terms used
adverse
established
the
that was
was “not one
(i.e.,
admitted evidence
“[t]he
a subdivi-
sion cases
surveys,
[was]
but
congressional
testimony tending to
through
complained
the east
of is
and south
line north
sion
appellee
open,
that
had held
prove
Id. at 201.
section.”
quarter
half of a
uninterrupted possession,
and
Moreover,
convey-
of the
notorious
description
title,
and claim of
to the land
boundary was
under color
that created the
ance of land
twenty
standards,
controversy
in
for more than
uti-
by today’s
fairly imprecise
id.), but,
years”,
ultimately affirmed
might changе or dis-
that
lizing landmarks
viz.,
time,
grounds.
trial
on other
The court
court
appear
proved
actions
that
parties’
ruled that the
land,
of
piece,
parcel
A
tract
certain
boundary
of the
establishment
situate,
in
of
lying
being
and
the court
of the
accurately
par-
reflected the intent
Indiana,
of
Washington
State
property.
of
completing
ties in
the transfer
being part
as
of
known and described
words,
and use
In other
the establishment
quarter of
half of the northwest
the east
twenty years
than
of the lane more
north,
township
in
one
section seven
they originally
not
of what
be-
proof
east, in the district of lands
range four
intended, viz.,
lieved,
but also of what
Jeffersоnville; begin-
for sale at
offered
corner of the
ning at
the northeast
prove
Parol evidence is admissible
section seven
quarter of
northwest
existence, identity and location of
former
east,
north,
range
four
township one
removed, such
ancient monuments since
running
along
south
a marked line
then
stones,
marked
indicative of
as
trees
line,
supposed to
it is
be
open
to the
corners;
the location of lines and
and we
rods,
sixty
one hundred
about
why
inter-
see
reason
the acts
no
open line to God-
thence
with the
west
parties, contemporaneous
ested
rods,
fifty
then
frey Ratts’ corner about
monuments,
as
alleged existence
(this
line
is the
along
north
a marked
existence, should
tending
prove
dispute)
to Reachart Wilson’s cor-
If
not
in evidence.
be also admissible
ner,
spring,
thence
near said Viles’
to a
possession
improvement up
beginning,
northeastward to
twenty years should
recognized line for
being forty acres more or less.
same
upon
parties,
not be held conclusive
they certainly
tendency
Id. at 201.
have a
that should
prove
implied
years
some
later be-
dispute
A
arose
time,
acquiesced
after that
or that
in interest about
their successors
tween
line,
that was the true
and would
and,
location
evidence,
either event be admissible
result,
survey
surveyor
was hired. His
and shоuld be considered
the court or
the true line was located
indicated
survey
jury
determining whether the
land-
west of the lane. The eastern-most
was correct.
judicial
sought
owner
determination
surveyed
his
property extended
Thus, Wingler did not establish a new
line,
whereas the western-most
doctrine that would stand shoulder-to-
lane,
placement
owner
claimed
as an
shoulder with
subsequent
long period
using
and the
real
principle
alternate
which
placement,
the land consistent with that
party may
titled in one
properly
boundary.
established the lane as the true
party merely through
another
pass to
Rather, merely
actions.
it
Supreme
agreed
party’s
with lattеr
Indiana
Court
parties
that if
to a land trans-
began
analysis
It
its
established
the latter contention.
*10
the doctrine of
is to be
a certain
agree that
fer
use the land consis-
parties
and both
place
I
found
the oldest Indiana decision can
long enough
for a
tent with that
Cox,
Ball v.
subject,
find on the
preme Court. brings writing This me to the reason for my I separately. emphasize wish to view underlying question before acquiescence separate theory that is not a simple one: which was the Court was acquiring ownership per- of another proper- and Ball’s boundary Cox’s between by providing son’s real not com- P, boundary set was the ties—line which pensation, by openly using but instead description original legal forth in the if land as her or she was the true owner. N, represented which conveyance, or line It does not stand with the doctrine of had, begin- since the boundary that theory possession adverse as an alternate and use ning, parties’ actions governed to in the same circumstances as applied be properties? Ultimately, respective of their Rather, acquiescence adverse jury verdict favor the court revеrsed applies only specific when a set of circum- Cox, jury that grounds of did so on but in which ad- stances exists—circumstances erroneously period instructed that the not That apply. verse does set eighteen years: acquiescence is adjoining of circumstances is this: Two case, a careful examination of the Upon (1) good-faith owners share a be- regard weight can not but
we concerning lief the location of the common reason, authority, and the better boundary separates proper- line that hold, which as a that class of decisions (2) and, although agreed-upon lo- ties rule, twenty years’ general acquies- that boundary, cation is not fact the actual necessary support implied cence is (3) boundary if properties use their that boundary in a variant from agreement (4) period was the actual for a clearly expressed the title deeds. twenty years. at least It is the adjoining between the owners thereby Id. The court established the “acquiescence” that takes this and all other necessary twenty-year period regard posses- cases out of the realm of adverse parties’ actions and behavior with re- sion. spect establishing to the land as a bound- ary appear- line that differs from the one The doctrine of has lain conveyance largely litigation deed. The Court dormant real estate clearly against century, “It be since the end of the explained, nineteenth so, policy understandably given of the statute of frauds and the not both limitations, in- very statute of to allow a mere set of circumstances which narrow title, truder, invoked, any may claim or color of the doctrine but also the without rights continuing surveying, than acquire easier terms evolution le- gal descriptions property, recording under an posses- those who hold my that it It import hope sion.” Id. The of this case is real estate transactions. is theory explains underpinning prolong the de- these comments will termination that a estab- slumber. variant in ac- agreement, lished as reflected
tions, trumps legal descriptions contained i.e., theory estoppel, deeds. That
“nothing twenty years’ acquies- short of estop
cence the real from will owner”
claiming legal description establishes