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COA tosses treble damages since access was not denied

April 21, 2015

A feuding neighbor who twice entered the property next to hers to unplug a sump pump will not have to pay treble damages because the Indiana Court of Appeals found she did not commit criminal trespass.

Pamela Frazee and her neighbors Douglas and Angela Skees got into a protracted dispute over a subsurface drain running through their properties.

After the Skeeses installed a new septic system to comply with the county health department’s order, they placed a sump pump near the hole where their connection to the subsurface drain had been severed. However, the pump forced water onto Frazee’s property and flooded one of her barns.

Frazee entered the Skees’ property on two occasions to unplug the pump.

The Tippecanoe Superior Court awarded the Skeeses compensatory damages of $1,299 and ruled Frazee had committed criminal trespass which made the Skeeses entitled to three times the amount, or $3,897. In addition, the court awarded the couple attorney fees of $1,299.

In Pamela Frazee v. Douglas J. Skees and Angela D. Skees, 79A04-1406-PL-269, the Court of Appeals reversed the trial court’s conclusion that Frazee committed criminal trespass. The unanimous panel held Frazee did not trespass because she was never denied access to the neighbor’s property. In fact, the Skeeses did not tell her to stop disconnecting the pump until after she unplugged it a second time.

Consequently, the Court of Appeals concluded since the trial court erred when it found that Frazee committed criminal trespass, the lower court also erred when it awarded treble damages and attorney fees to the Skeeses.

The Court of Appeals also cut part of Frazee’s claim of $5,000 plus attorney fees of $1,667 for a total award of $6,667. The appellate court reversed the award of attorney fees to Frazee, finding, in part, the obdurate behavior exception did not apply to this situation.

 

 

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