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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: LAWRENCE R. WHEATLEY Danville, Indiana

ATTORNEYS FOR APPELLEE: ROBERT L. HARTLEY MAGGIE L. SMITH THOMAS A. WITHROW Frost Brown Todd LLC Indianapolis, Indiana

Jul 15 2010, 9:36 am

FILED
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
KELLY LEE MUNCY, KENDRA MARIE VONDERSAAR, KAREN KAY MUNCY and KIM SUE MUNCY, Appellants-Defendants/Counter-Plaintiffs, vs. HARLAN BAKERIES, INC., Appellee-Plaintiff/Counter-Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 32A04-1001-PL-9

APPEAL FROM THE HENDRICKS SUPERIOR COURT NO. 2 The Honorable Matthew C. Kincaid, Special Judge Cause No. 32D01-0601-PL-6

July 15, 2010 OPINION - FOR PUBLICATION RILEY, Judge

STATEMENT OF THE CASE Appellants-Defendants/Counter-Plaintiffs, Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy, and Kim Sue Muncy (collectively, the Muncys), appeal the trial court's Findings of Fact and Conclusions of Law entered after remand proceedings, adjusting the prior damages award and ordering that AppelleePlaintiff/Counter-Defendant, Harlan Bakeries, Inc. (Harlan), abate certain encroachments. We affirm. ISSUES The Muncys raise two issues on appeal, which we restate as follows: (1) Whether the trial court exceeded the scope of issues available on remand when it ordered Harlan to pay certain damages and to remove a retaining wall and encroaching curbs and blacktop from the Muncys' property; and (2) Whether the Muncys are entitled to an award of attorney fees. FACTS AND PROCEDURAL HISTORY This case arises from a property dispute between adjoining landowners, Harlan and the Muncys, and is before us as an appeal of a trial court's Order entered after remand proceedings following this court's decision in Harlan Bakeries, Inc., v. Muncy, 835 N.E.2d 1018 (Ind. Ct. App. 2005) (Harlan I) which partially reversed the original judgment. Harlan and the Muncys own adjoining property on Production Drive in Avon, Indiana. Taken together, both properties form a large rectangle, with the Muncys'

property consisting of a smaller rectangle in the southeast corner of the large rectangle. Two common borders exist: one on the north end of the Muncys' property (the North 2

Boundary Line) and one on the west side of the Muncys' property (the West Boundary Line). In 2000, Harlan was engaged in a commercial construction project on its property. As part of the project, Harlan began removal of a 15 corrugated metal storm drainpipe (the West Storm Sewer) which was buried near the West Boundary Line. During this removal work, Harlan encountered resistance from the Muncys and consequently, on September 26, 2000, Harlan filed a complaint for a preliminary injunction and a temporary restraining order. The complaint also included a request for a declaratory judgment regarding the exact locations of the two Boundary Lines and an allegation of trespass. That same day, the trial court entered a temporary restraining order, which (1) required the Muncys to remove their property encroaching on Harlan's project; (2) allowed Harlan to remove the West Storm Sewer pipe; and (3) set Harlan's motion for preliminary injunction for October 12, 2000. After several continuances and after being apprised that Harlan had removed the West Storm Sewer and poured a 130-foot-long, four-foot-high, four-inch-thick, solid concrete wall, the trial court dissolved the temporary restraining order against the Muncys and entered a new restraining order prohibiting Harlan from any further work on the West Storm Sewer until a full hearing could be held. On November 8, 2000, the Muncys filed their answer, verified counterclaim, and request for preliminary injunction, which sought restoration of the West Storm Sewer and various damages. By April of 2001, Harlan had installed curbing and blacktop over the disputed property line, thereby changing the elevation of Harlan's property and reversing 3

the historical water flow. As a result, in May of 2001, the Muncys filed a petition asking that Harlan be held in contempt for violating the October 12, 2000 order. On December 18, 2001, four days after holding a hearing on the matter, the trial court issued an order finding Harlan in contempt for violating the October 12, 2000 restraining order. The order also fined Harlan $500, awarded $1,000 in attorney fees to the Muncys, and further restrained Harlan from any construction within 10 feet of the West Boundary Line until further order of the trial court. On June 10-11, and September 9, 2004, the trial court conducted a bench trial. On October 5, 2004, the trial court entered seventy-eight findings, twenty-six conclusions, and judgment, establishing the West and North Boundary Lines at the locations the Muncys requested. For purposes of this appeal, only the location of the West Boundary Line is relevant which the judgment established as being eighteen feet east of, and parallel to, the east side of Harlan's building. As a result of that location, the retaining wall Harlan had constructed and parts of the paving and curbs encroached on the Muncys' land. The trial court also determined that Harlan had i mproperly removed the West Boundary Sewer pipe. With respect to the Muncys' counterclaim, the judgment awarded the following damages: 1. Cost of removing concrete wall and replacing 15 corrugated drain pipe 2. Relocation of personal property 3. Loss of use of real estate 4. Damages pursuant to I.C.

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