Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Feb 20 2009, 10:48 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: DANIEL L. BROWN Allen Allen & Brown Salem, Indiana

ATTORNEY FOR APPELLEES: CHARLES R. MURPHY New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
JAMES J. WILLOUGHBY and RACHEL WILLOUGHBY Appellants, vs. DONALD LOCKARD and DAWNETTE J. SPENCER Appellees. ) ) ) ) ) ) ) ) ) ) )

No. 88A01-0809-CV-438

APPEAL FROM THE WASHINGTON CIRCUIT COURT The Honorable Robert L. Bennett, Judge Cause No. 88C01-0703-PL-082

February 20. 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Appellants, James and Rachel Willoughby (the Willoughbys), bring this interlocutory appeal from the trial court's order denying their motion to reconvene mediation and confirming a Settlement Agreement executed by the Willoughbys and Appellees, Donald Lockard and Dawnette Spencer a/k/a Dawnette Lockard (the Lockards), following mediation. The Willoughbys present three issues for our review, which we consolidate and restate as: Did the trial court err in concluding that the Settlement Agreement was unambiguous? The Lockards cross-appeal, arguing the trial court should have granted their request for attorney's fees. We affirm and remand. On or about May 24, 1999, the Lockards purchased certain real estate from Larry Eugene Burnett.1 The real estate purchased by the Lockards is adjacent to 100 acres of real estate owned by the Willoughbys. Following the Lockards' purchase, a dispute arose between the Lockards and the Willoughbys as to the location of the shared property line that forms the western boundary of the Lockards' property and the eastern boundary of the Willoughbys' property. The property line dispute was fueled in part by the language in the deed describing the boundaries of the Lockards' property. Specifically, the deed described the northern and western boundary lines of the Lockards' property as follows: said Northeast corner also being in the East line of said Southwest quarter; thence West parallel to the South line a distance of 210 feet to the branch; thence southerly with the meanderings of the branch to a point westerly (as measured parallel with the South line of said Southwest quarter) from the place of beginning . . . .

1

Burnett was not made a party to this action.

Appellants' Appendix at 106 (emphasis supplied). In fact, the distance from the northeast corner of the Lockards' property to the "branch"2 is much shorter than that set forth in their deed description.3 Id. The Lockards therefore believed the property line was located to the west of the branch and was marked by a fence that belonged to the Willoughbys. The Willoughbys believed the boundary line was east of their fence and followed the "meanderings of the branch". Id. On January 30, 2003, the Willoughbys obtained a survey that indicated the boundary line ran along the branch. The Willoughbys discussed the results of their survey with the Lockards and then the Willoughbys moved their existing fence closer to the branch. The Lockards removed this fence and continued to use the property (the disputed property) to that point where they believed the boundary line to be, i.e., where the Willoughbys' fence was first located. On March 15, 2007, the Lockards initiated this action in the Washington County Circuit Court. The Lockards sought a determination as to the location of the shared property line, and therefore, the ownership of the disputed property. The Willoughbys responded by filing an answer and a motion to dismiss the Lockards' complaint. The Willoughbys also filed a Counterclaim to Quiet Title & Establish Boundaries in Accordance with Legal Survey, Petition to Enjoin Trespass, and Complaint for Enforcement of Legal Survey.

2 3

From the record, it appears that the "branch" is a reference to a creek.

According to a survey commissioned by the Willoughbys in 2003, the distance from the northeast corner of the Lockards' property to the branch is 134.27 feet. A surveyor's location report incorporated into the Settlement Agreement indicates that the distance between these same points is 120.04 feet.

3

Ultimately, the parties agreed to submit to mediation, which was held on May 23, 2007. The mediation resulted in a Settlement Agreement that was executed by all of the parties. The Settlement Agreement set forth in relevant part: 2. Lockard to own land in dispute, which is outlined in yellow on the attach[ed surveyors location report (the SLR)]. 3. Lockard to pay cost of transfer of title, including cost of deed & survey description & survey, if necessary. *** 5. New west line of Lockard will start at post on north and be a straight line going south in line with a fence post that is directly west of the SW corner of Lockard. 6. Lockard to pay Willoughby $1000. *** 10. SW corner of Lockard to be a point where extension of Lockard south line westward intersects with line of metal posts running north & south on the Willoughby property. Id. at 118-19. The SLR depicts what the parties agreed would be the shared property line and includes handwritten notations describing the reference points for the north and south points of the line to be established as the shared property line. See Figure 1, below.

4

The north point of the new property line is indicated on the SLR as a "Post" located west of the branch and in line with the Lockards' northern property line. Id. at 120. The southern point of the new property line, and hence the southwest corner of the Lockards' property, is indicated as a "point in line with posts already in place". Id. There is a further handwritten notation that the point is "in line of metal posts". Id.

5

Pursuant to the Settlement Agreement, the Lockards obtained a survey to establish the shared property line as set forth by the terms of the Settlement Agreement. This survey was conducted without the Willoughbys present and was based on representations made by Dawnette Lockard as to the northern and southern reference points to be used in establishing the shared property line. On this survey, the north point of the new property line was described by the surveyor as follows: WOOD POST FND PAINTED

Download James and Rachel Willoughby v. Donald Lockard.pdf

Indiana Law