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FOR PUBLICATION
ATTORNEY FOR APPELLANT: GORDON A. ETZLER Gordon A. Etzler & Associates Valparaiso, Indiana ATTORNEYS FOR APPELLEE NORTHERN INDIANA PUBLIC SERVICE COMPANY: PAUL A. RAKE MATTHEW S. VERSTEEG Eichhorn & Eichhorn Hammond, Indiana ATTORNEYS FOR APPELLEE TOWN OF HIGHLAND, INDIANA: RHETT L. TAUBER, ESQ. MICHAEL J. JASAITIS, ESQ. Tauber Westland & Jasaitis, P.C. Schereville, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM G. FINKE and RUTH A. FINKE, as ) Husband and wife, ) ) Appellants-Plaintiffs, ) ) vs. ) ) NORTHERN INDIANA PUBLIC SERVICE ) COMPANY and TOWN OF HIGHLAND, ) INDIANA, ) ) Appellees-Defendants. )

No. 45A03-0606-CV-280

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Jeffery J. Dywan, Judge

Cause No. 45D11-0503-PL-22 and 45D05-0210-PL-237

December 29, 2006
OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

William and Ruth Finke appeal following the entry of summary judgment in favor of Town of Highland (the Town) and Northern Indiana Public Service Company (NIPSCO) on the Finkes' prescriptive easement claim. On appeal, the Finkes present the following restated issues for review: 1. Did the Finkes timely file their notice of voluntary dismissal pursuant to Ind. Trial Rule 41(A)? Did the trial court properly grant summary judgment in favor of the Town and NIPSCO?

2.

We affirm. On October 1, 2002, the Finkes filed a Complaint to Declare Prescriptive Easement and a separate Motion for Preliminary Injunction. In their complaint, the Finkes alleged that NIPSCO is the fee simple owner of the real estate in question (the NIPSCO Property) and that the Town had acquired a right to use the NIPSCO Property to construct and maintain a jogging, hiking, and biking trail for the limited use of the public as described in a license agreement with NIPSCO. The NIPSCO Property is adjacent to and situated to the north and east of property owned by the Finkes (the Finke Property) since 1994. Over the years, the Finkes and their predecessors in title have used the Finke 2

Property for business purposes and they have used the NIPSCO property as additional parking for their patrons, as well as ingress/egress to and from the easternmost end of the business. By their complaint, the Finkes sought a determination that they had "acquired an easement by prescription upon and over the NIPSCO Property, for the limited purpose of using the NIPSCO Property for parking and ingress/egress to and for the benefit of the Finke Property". Appellee NIPSCO's Appendix at 3. The Finkes further sought a

preliminary injunction prohibiting NIPSCO and the Town from "(1) altering, modifying or otherwise changing the NIPSCO Property (hereinafter defined); (2) removing or destroying the Plaintiff's personal property which is situated upon the NIPSCO Property; and (3) denying the Plaintiff access to the NIPSCO Property for purposes of gaining ingress/egress". Id. at 6. A preliminary injunction hearing was held on October 11, 2002, at which the parties presented evidence and argument. That same day, the Town filed an objection to the motion for preliminary injunction and a detailed memorandum, with several exhibits. The day prior to the hearing, NIPSCO also filed a memorandum in opposition to the motion for preliminary injunction. The parties each filed proposed findings following the hearing, as directed by the court. Thereafter, on October 21, the trial court denied the Finkes' motion for preliminary injunction, concluding in part: 30. The Finkes have failed to establish a reasonable likelihood of success on the merits for its [sic] Complaint to Declare Prescriptive Easement because: (a) From at least 1978 to 1984, the Nipsco Property was not unitized for parking by any vehicles because it was impossible to access the Nipsco Property due to the presence of a ditch, railroad ties, and railroad tracks. Moreover, 3

between 1994 and 1999, Finke's business was inactive, and Finke's patrons did not utilize the Nipsco property for that five year period of time. At a minimum, these two gaps of time interrupt the twenty (20) year period required for a prescriptive easement.... (b) Club Dimensions, Inc. [predecessor in title] used the Nipsco Property from at least 1984 to 1988 pursuant to a lease and that use was permissive. Furthermore, the Finkes had oral permission to use the Nipsco Property from either 1994 or 1996 until 2001. Therefore, both permissive uses cannot be utilized in establishing a prescriptive easement during any twenty (20) year time frame which includes those "permissive" time periods. (c) Neither the Finkes nor their predecessors in title excluded noncustomers of the Finke property, or members of the general public, from utilizing the Nipsco property. Such conduct precludes the Finkes from asserting an exclusive "claim of right" to obtain an easement by prescription. 31. The Finkes have failed to establish any twenty (20) year prescriptive time period between 1962 and the present. 32. The Finkes failed to establish each element required for a prescriptive easement. Therefore, for the above-cited reasons, the Finkes have failed to demonstrate a reasonable likelihood of success on the merits. Appellants' Appendix at 41-42. Soon after the denial of a preliminary injunction, the Finkes' counsel withdrew from the case, and the Finkes took no further action to prosecute the matter for nearly two years. Finally, on July 22, 2004, new counsel for the Finkes filed two handwritten motions with the trial court, a motion for change of venue from judge and a notice of dismissal without prejudice. Neither was entered of record, and there is no indication the motions were accepted by the trial court. Thereafter, on July 26, counsel filed a

typewritten motion for change of venue and a typewritten notice of dismissal, with the handwritten documents attached. In the interim, on July 23, the Town filed its answer to the Finkes' complaint by certified mail. 4

Following a hearing, the trial court entered an order denying the Finkes' motion to dismiss and granting their motion for change of venue on February 1, 2005. Another trial court subsequently assumed jurisdiction over the case. A status conference was held on June 20, 2005, at which deadlines were established for discovery and dispositive motions. The Finkes were also granted leave to file an amended complaint. The Finkes, however, did not timely file an amended complaint. NIPSCO answered the original complaint on June 30, 2005. Thereafter, on

October 14, the Town and NIPSCO filed separate motions for summary judgment, with supporting memoranda, designated evidence, and exhibits. The Finkes failed to respond to the summary judgment motions. Instead, on December 16, well after the deadline to respond had passed, the Finkes filed a renewed motion to dismiss or, in the alternative, a motion for leave to amend their complaint. A week later, the Finkes filed for an

extension of time to respond to the motions for summary judgment, which the trial court properly denied as untimely pursuant to Ind. Trial Rule 56(I). On February 23, 2006, the trial court held a hearing on the pending motions. The trial court, by order dated February 27, denied the Finkes' renewed motion to voluntarily dismiss the case, as well as their motion to amend the complaint. 1 Thereafter, on May 18,

The Finkes sought to amend the complaint to assert a quiet title action, claiming superior title to the NIPSCO Property based upon a declaratory judgment order in a class action issued on November 26, 2003 by the Hamilton Superior Court. The trial court denied the Finkes' motion to amend because it was not filed within a reasonable time after the June 20, 2005 status conference, at which they were granted leave to amend the complaint. The Finkes' filing of their amended complaint, six months after the status conference, did not occur until after the close of discovery, after the defendants had filed for summary judgment, and after the Finkes had failed to respond to summary judgment. The Finkes do not appeal the denial of their motion to amend the complaint.

1

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the trial court entered an order granting summary judgment in favor of the Town and NIPSCO. The Finkes now appeal. 1. The Finkes initially claim they voluntarily dismissed their action without prejudice pursuant to T.R. 41(A)(1)(a) by filing a notice of dismissal with the trial court before the defendants filed their answers. Therefore, they argue the matter was dismissed without the need of a court order. T.R. 41(A) provides in pertinent part: Voluntary dismissal: Effect thereof. (1) By plaintiff--By stipulation. Subject to contrary provisions of these rules or of any statute, an action may be dismissed by the plaintiff without order of court: (a) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.... T.R. 41(A) is modified by T.R. 41(C), which provides: Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection (1) of subdivision (A) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. "The purpose of the rule pertaining to the voluntary dismissal of an action was to eliminate evils resulting from the absolute right of a plaintiff to take a voluntary nonsuit at any stage in the proceedings before the pronouncement of judgment and after the 6

defendant had incurred substantial expense or acquired substantial rights." Rose v. Rose, 526 N.E.2d 231, 234 (Ind. Ct. App. 1988), trans. denied. In the instant case, the trial court explained in its February 27, 2006 order: The Plaintiffs' Motions to Dismiss the case came after the matter was already submitted to the Court on the Plaintiffs' request for a preliminary injunction. Also, the Defendant Town of Highland filed its Answer by certified mail three (3) days before the Plaintiffs filed a Motion to Voluntarily Dismiss this case. This Court finds that the Motion to Voluntarily Dismiss the case after the matter was submitted in a hearing on the request for a preliminary injunction, and at the same time Defendant Town of Highland was filing its Answer, does not satisfy the requirements of Trial Rule 41(A)(1). Appellants' Appendix at 14. 2 We agree with the trial court. On appeal, the Finkes rely exclusively on T.R. 41(A)(1)(a) and argue that their notice of dismissal was filed prior to the defendants filing their respective answers. With

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With respect the original and renewed motions to dismiss, the trial court further stated at the February 23 hearing: You had gone

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