MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Jun 26 2018, 6:05 am

this Memorandum Decision shall not be                                        CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Katrina M. Lynn                                          R.P. Fisher
Lynn and Stein, P.C.                                     Fisher & Ireland
Wabash, Indiana                                          Wabash, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Heather M. (Varner) France,                              June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A02-1710-PL-2472
        v.                                               Appeal from the Wabash Circuit
                                                         Court
Mary Sparling,                                           The Honorable Robert R.
Appellee-Plaintiff                                       McCallen, III
                                                         Trial Court Cause No.
                                                         85C01-1609-PL-593



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018             Page 1 of 4
[1]   Heather France appeals the trial court’s orders granting Mary Sparling’s motion

      to dismiss France’s adverse possession counterclaim and entering judgment for

      Sparling on Sparling’s trespass complaint against France. Finding that the

      motion to dismiss should not have been granted and that France is entitled to

      her day in court, we reverse and remand for further proceedings.


                                                     Facts
[2]   In July 2012, France purchased her Wabash home, which includes a fence,

      pool, permanent shed, and an addition on the back of the home. All of these

      features were maintained by France’s predecessors in title and have continued

      to be maintained by France. She has also paid property taxes on this parcel of

      land, as did her predecessors.


[3]   In May 2016, a land survey was conducted. The surveyor learned that the

      fence, permanent wood shed, part of the addition to the back of the house, and

      most of the pool actually sit on part of the abutting tracts of land owned by

      France’s neighbors. Sparling is one of those neighbors; her forty-acre tract

      abuts France’s property to the west. At some point following the survey,

      Sparling demanded that France remove the fence, shed, and pool from her

      property. France refused to do so.


[4]   On September 8, 2016, Sparling filed a complaint alleging that France

      committed trespass by having the fence, shed, and pool located on Sparling’s

      property. On October 20, 2016, France filed her answer, in which she admitted

      that Sparling “holds legal title of the property” on which the fence, shed, and

      Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018   Page 2 of 4
      pool are located. Appellant’s App. Vol. II p. 21. Together with the answer,

      France filed a counterclaim, arguing that she owns the property by adverse

      possession and seeking to quiet title in her favor.


[5]   The trial began on August 3, 2017. Sparling presented evidence on her

      complaint and rested. Her attorney then moved to dismiss France’s

      counterclaim pursuant to Indiana Trial Rules 12(B)(6) and 12(H). The trial

      court granted the motion and entered judgment in Sparling’s favor on the

      complaint. France was not permitted to offer any evidence to support her

      defense or counterclaim. She now appeals.


                                   Discussion and Decision
[6]   France first argues that the trial court erroneously dismissed her counterclaim

      for adverse possession. A motion to dismiss for failure to state a claim tests the

      legal sufficiency of the claim rather than the facts supporting it. E.g., Mainstreet

      Prop. Group, LLC v. Pontones, 97 N.E.3d 238, 243 (Ind. Ct. App. 2018). We

      apply a de novo standard of review to the trial court’s ruling, viewing the

      pleadings in the light most favorable to the nonmovant, with every reasonable

      inference construed in that party’s favor. Id.


[7]   In this case, the trial court dismissed the adverse possession counterclaim based

      on what it found to be France’s “conclusive and binding judicial admission[]”

      in her answer that Sparling holds the legal title to the property. Tr. p. 19. We

      cannot agree with this conclusion. Initially, we note that to grant the motion to

      dismiss and enter judgment in favor of Sparling on this basis is to countenance a

      Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018   Page 3 of 4
       type of “gotcha” litigation that we do not condone or tolerate. E.g., Pinkowski v.

       Calumet Twp. of Lake Cty., 852 N.E.2d 971, 980 (Ind. Ct. App. 2006).


[8]    Moreover, while France did state that Sparling holds the legal title to the

       property, that statement was paired with a counterclaim in which France

       claimed to be the rightful owner of the property by virtue of adverse possession.

       It is apparent, when considering the entirety of this pleading, that France

       intended to admit only that Sparling is the title holder of record while

       maintaining that France herself is the legal owner of the property based on

       adverse possession, seeking to quiet title in her own favor. Given that we must

       view the pleadings in the light most favorable to France, with every reasonable

       inference construed in her favor, we believe that Sparling’s motion to dismiss

       the adverse possession counterclaim should have been denied.


[9]    As France’s adverse possession counterclaim survives, she is entitled to her day

       in court to pursue that counterclaim and defend against Sparling’s trespass

       claim. Therefore, judgment should not have been entered in Sparling’s favor

       and France should have been allowed to present her evidence and make her

       case. We reverse and remand for further proceedings.


[10]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-PL-2472 | June 26, 2018   Page 4 of 4