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FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: CRAIG D. DOYLE MARK R. GALLIHER KURT V. LAKER Doyle & Friedmeyer, P.C. Indianapolis, Indiana ATTORNEY FOR APPELLEES: MICHAEL D. WILHELM Wilhelm Law Office Brookville, Indiana

IN THE COURT OF APPEALS OF INDIANA
DONALD L. GARRIOTT, LARRY E. GARRIOTT, MARK D. GARRIOTT, and DENNIS L. GARRIOTT, Appellants-Plaintiffs, vs. EDWARD L. PETERS and PATSY L. CHRISTIAN, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 24A01-0703-CV-119

APPEAL FROM THE FRANKLIN CIRCUIT COURT The Honorable J. Steven Cox, Judge Cause No. 24C01-0409-CC-277

December 28, 2007

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Donald, Larry, Mark, and Dennis Garriott appeal the trial court's denial of their motion for summary judgment and its subsequent judgment following trial denying their claim for title by adverse possession and resolving a boundary dispute between them and Edward Peters and Patsy Christian (referred to collectively as "the Appellees"). The Garriotts raise four issues, but we need address only two: whether the trial court improperly denied the Garriotts' motion for summary judgment and whether the trial court erred in finding that the Garriotts failed to prove the elements of their adverse possession claim. Although we conclude the trial court properly denied the Garriotts' motion for summary judgment, we also conclude the trial court improperly found that the Garriotts failed to establish title by adverse possession. We therefore reverse. Facts and Procedural History This case involves a dispute between the Garriotts and the Appellees over a 7.811-acre parcel of real estate located in Franklin County (the "Disputed Tract"). On September 29, 1978, the Garriotts acquired title to a 100.44-acre parcel of land that included the Disputed Tract. The Garriotts recorded the deed to this parcel in the office of the Recorder of Franklin County. On March 22, 1991, the Appellees purchased an 80-acre parcel of land that also included the Disputed Tract, which is located on the west side of the Garriotts' land and the east side of the Appellees' land. The Garriotts' deed shows the boundary line running along Bulltown Road, while the Appellees' deed shows the boundary line running along a section line. It is uncontested that the Disputed Tract is included in the legal descriptions of both parties' deeds, and that predecessors in title have held deeds that include the Disputed Tract 2

since at least 1836. In the words of both parties, this case presents a "classic overlap." The parties first became aware of this overlap sometime in either 1995 or 1996, when the Garriotts began cutting timber from the Disputed Tract, and Peters objected, informing the Garriotts that he owned the Disputed Tract. Neither party took legal action at this time. In 2004, Peters and his son began clearing trees, brush, and old fencing from part of the Disputed Tract, and the Garriotts objected. This dispute resulted in the Garriotts filing a lawsuit claiming the Appellees1 had trespassed on and damaged the Garriotts' property and seeking an injunction. The Appellees denied the allegations and filed a counter claim to quiet title and for damages. On October 3, 2005, the Garriotts filed a motion for Partial Summary Judgment, seeking to quiet title by adverse possession. The only issue on which the Garriotts did not seek summary judgment was the amount of damages. The Appellees filed a response to this motion and designated evidence. On January 12, 2006, following a hearing, the trial court denied the Garriotts' motion. The trial court's order did not identify the reason for which it denied the motion. On September 7, 2006, the trial court held a bench trial at which the Garriotts again argued that they had acquired title to the Disputed Tract by adverse possession. On January 8, 2007, the trial court issued its order, along with findings of fact and conclusions of law. In the order, the trial court found the Garriotts had failed to establish the elements of adverse possession. It went on to find the Garriotts' title failed to sufficiently define the western boundary of their property, and that the Garriotts therefore held no title to the Disputed
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At the time the Garriotts filed the suit, they named Sharon L. Peters as a defendant. On October 27, 2004, Christian, who was then a co-owner of Peters's property, was substituted for Sharon as a party-

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Tract.2 The trial court therefore quieted title to the Disputed Tract in favor of the Appellees. The Garriotts now appeal. Discussion and Decision I. Summary Judgment3 Summary judgment "should be granted guardedly and should not be used as an abbreviated trial." Newhouse v. Farmers Nat'l Bank of Shelbyville, 532 N.E.2d 26, 28 (Ind. Ct. App. 1989). A trial court should grant a motion for summary judgment only when the evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Rodriguez v. Tech Credit Union Corp., 824 N.E.2d 442, 446 (Ind. Ct. App. 2005). However, we review a trial court's grant of summary judgment de novo, construing all facts and making all reasonable inferences from the facts in favor of the non-moving party. Progressive Ins. Co. v. Bullock, 841 N.E.2d 238, 240 (Ind. Ct. App. 2006), trans. denied. We may affirm the trial court's grant of summary judgment upon any basis that the record supports. Rodriguez, 824 N.E.2d at 446. However, we examine only those materials designated to the trial court on the motion for summary judgment. Trietsch v. Circle Design Group, Inc., 868 N.E.2d 812, 817 (Ind. Ct. App. 2007).

defendant. 2 The Garriotts also challenge this finding, but we need not address this issue as we reverse on the Garriotts' adverse possession claim. A party may appeal the denial of a motion for summary judgment after the trial court has issued a final judgment. Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996), trans. denied.
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In its brief, the Garriotts "concede that . . . the Trial Court could properly have denied the Garriotts summary judgment as to whether the [Appellees] regained title to the Disputed Tract between 1991 and 2004." Appellant's Brief at 12 n.3. We agree, and conclude the trial court properly denied the Garriotts' motion for summary judgment, as this court "will affirm the denial of summary judgment if it is sustainable on any legal theory or basis found in the evidentiary matter designated to the trial court." W. Amer. Ins. Co. v. Cates, 865 N.E.2d 1016, 1020 (Ind. Ct. App. 2007) (emphasis added), trans. denied. We therefore need not address the Garriotts' argument that the trial court improperly denied its motion on another basis. See Villas West II of Willowridge v. McGlothin, 841 N.E.2d 584, 596-97 (Ind. Ct. App. 2006) (declining to address the appellant's argument that the trial court improperly denied a motion for summary judgment on one basis where the denial was sustainable on another basis); Ramon v. Glenroy Constr. Co., Inc., 609 N.E.2d 1123, 1128 (Ind. Ct. App. 1993) ("This court is not precluded from affirming a summary judgment where the final result is correct although it may have been rendered upon a different theory than that upon which we sustain it."), trans. denied. The Garriotts claim, however, that the trial court should have granted them partial summary judgment on the issue of whether, by their actions between 1978 and 1991, they acquired title to the Disputed Tract by adverse possession. We recognize that "[a] summary judgment may be rendered upon less than all the issues or claims." T.R. 56(C). However, a party must identify the issues and grounds on which it is seeking summary judgment. See T.R. 7(B) ("The motion shall state the grounds therefor and the relief or order sought." (emphasis added)); T.R. 56(B) ("When any party has moved for summary judgment, the 5

court may grant summary judgment for any other party upon the issues raised by the motion." (emphasis added)). In their motion for summary judgment, the Garriotts did not indicate that they were seeking summary judgment on the distinct issue of whether they initially acquired title by adverse possession. Instead, the Garriotts stated merely, "There is no material question of fact in this matter as to the issue of the Garriotts' ownership of the real estate at issue by adverse possession." Appellant's Appendix at 27. They likewise did not request at the summary judgment hearing that the trial court grant it summary judgment on the issue of whether they acquired adverse possession by their actions between 1978 and 1991 distinct from the ultimate issue of whether they currently held title to the Disputed Tract. The Garriotts cannot now complain that the trial court failed to enter summary judgment on this specific issue when it failed to request that the trial court do so.4 The trial court's denial of the Garriotts' motion for summary judgment did not dispose of any of the issues, but merely left the issues to be decided at trial. See Turner v. Bd. of Aviation Comm'rs, 743 N.E.2d 1153, 1164-65 (Ind. Ct. App. 2001), trans. denied. Therefore, we will address the Garriotts' arguments relating to their acquiring title by adverse possession based on all the evidence before the trial court. II. Judgment After Trial A. Standard of Review
We recognize that authority exists for the proposition that this court may issue an opinion in effect granting a party partial summary judgment on a particular issue where the party did not specifically request such relief. See Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 566 n.2 (Ind. Ct. App. 1986), trans. denied. However, in Thiele, this court affirmed the trial court's grant of summary judgment as to three counts in the plaintiff's complaint, and reversed the trial court's grant with regard to a fourth count. See id. at 588. In this case, the issue of whether the Garriotts acquired adverse possession through their actions between 1978 and 1991 is not a separate count, but merely part of the ultimate issue of the Disputed Tract's ownership.
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In this case, the trial court entered findings of fact and conclusions of law sua sponte. In these situations, the trial court's findings "control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has entered findings, we employ a two-tiered review, first determining whether the evidence supports the trial court's findings and then determining whether the findings support the trial court's conclusions. Id. We will not set aside a finding or the judgment "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Wetherald v. Jackson, 855 N.E.2d 624, 632 (Ind. Ct. App. 2006) (quoting Ind. Trial Rule 52(A)), trans. denied. Indeed, "it is not within the province of an appellate court to reweigh the evidence or to reassess the credibility of the witnesses." Wilfong v. Cessna Corp., 838 N.E.2d 403, 407 (Ind. 2005). While we review findings of fact under the clearly erroneous standard, we review de novo a trial court's conclusions of law. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). "Where cases present mixed issues of fact and law, we have described the review as applying an abuse of discretion standard." Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005). A finding is clearly erroneous "when the record contains no facts to support them either directly or by inference." Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994). We will conclude a judgment is clearly erroneous if no evidence supports the findings, the findings fail to support the judgment, or if the trial court applies the incorrect legal standard. Wetherald, 855 N.E.2d at 632. "In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence

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must leave it with the firm conviction that a mistake has been made." Yanoff, 688 N.E.2d at 1262. We also note that as the Garriotts bore the burden of proof regarding their claim of adverse possession, they are appealing from a negative judgment. Nodine v. McNerney, 833 N.E.2d 57, 65 (Ind. Ct. App. 2005), clarified on reh'g, 835 N.E.2d 1041, trans. denied. In these situations, "we will reverse the trial court's judgment upon this issue only if the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to a conclusion other than that reached by the trial court." Id. B. The Trial Court's Findings Before addressing the merits, we note that some of the trial court's "findings of fact" are not true findings, as they merely restate the testimony of witnesses. See Augspurger v. Hudson, 802 N.E.2d 503, 515 (Ind. Ct. App. 2004) (Sullivan, J., concurring in result) (indicating that recitations of witness testimony are not findings); In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003) ("A court or an administrative agency does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z."). This court is fully capable of reading the transcript of witnesses' testimony; "findings" that merely inform this court that witnesses testified as to certain facts do not aid this court in its review. Cf. Perez v. U. S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981) (indicating that findings that merely restate testimony "are not findings of basic fact in the spirit of the requirement"). Findings of fact are a mechanism by which a trial court completes its function of weighing the evidence and judging witnesses' credibility. Therefore, "the trier of fact must adopt the testimony of the witness before the `finding' may be considered a finding of fact." In re 8

T.J.F., 798 N.E.2d at 874. When a trial court enters purported findings that merely restate testimony, this court will not "cloak the trial court recitations in the garb of true factual determinations and specific findings as to those facts." Augspurger, 802 N.E.2d at 515. Instead, we treat these purported findings as surplusage. See Perez, 426 N.E.2d at 33. C. Adverse Possession Adverse possession is a manner in which a party may defeat a party holding record title to a parcel of land. Marengo Cave Co. v. Ross, 212 Ind. 624, 630, 10 N.E.2d 917, 920 (1937). In order to obtain ownership of a parcel of land through adverse possession, one must establish four elements:5 (1) Control--The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of "actual," and in some ways "exclusive," possession); (2) Intent--The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of "claim of right," "exclusive," "hostile," and "adverse"); (3) Notice--The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former "visible," "open," "notorious," and in some ways the "hostile," elements); and, (4) Duration--the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former "continuous" element). Fraley, 829 N.E.2d at 486.6 The statutory period for adverse possession is ten years. Ind.

A party must also be in compliance with the adverse possession tax statute, Indiana Code section 3231-7-1. Fraley, 829 N.E.2d at 493. Here, there seems to be no dispute that both parties paid real estate taxes on the Disputed Tract and thus were in compliance with the statute.
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As this court has previously noted, our supreme court identified the elements of adverse possession

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Code

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