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The Court of Appeals of Indiana has ordered a trial court to award attorney fees to a woman who successfully fought her neighbor’s nuisance claim.
Michael Koltz owns a home that abuts Lake George in Fremont and has an easement granting several neighbors ingress and egress to the lake.
When Kay Morken bought her home in 2017, the parameters of the easement became a source of friction between her and Koltz.
Koltz had planted landscaping within the easement which Morken claimed obstructed her access to the lake. Koltz refused to remove the landscaping, so Morken did it herself in April 2022
Koltz then filed a lawsuit against Morken seeking declaratory judgment and alleging nuisance. He requested damages, an injunction to prevent her from removing landscaping from the easement and a declaration that she does not have rights to remove landscaping from the easement.
Morken responded with several counterclaims and also requested a declaration of their rights, an injunction against Koltz and damages.
Both parties moved for summary judgment, which was granted to Morken. The Steuben Circuit Court found that Koltz’s landscaping obstructed the easement and ordered him to remove any remaining landscaping.
At a damages hearing, Morken requested attorney fees under Indiana Code § 32-30-6-7, which was denied. The trial court found Koltz’s nuisance claim did not request the alleged nuisance be abated or enjoined, so Section 32-30-6-7 didn’t apply.
On appeal, Morken challenged the trial court’s decision to deny her attorney fees.
“Here, it is clear from Koltz’s complaint that he was requesting an abatement of an alleged nuisance. The first count, although not explicitly referencing nuisance, asks for a declaration that Morken cannot remove the landscaping and an injunction prohibiting her from doing so,” Judge Nancy Vaidik wrote in reversing the trial court. “He then alleges that exact behavior — removing and threatening to remove the landscaping — is a nuisance, cites Section 32-30- 6-7, and asks for damages under that statute.
“Altogether, this is a request to abate or enjoin a nuisance,” Vaidik wrote. “Therefore, under Section 32-30-6-7 Morken is entitled to fees for successfully defending against it.”
The case, Kay E. Morken v. Michael L. Koltz, 23A-PL-295, was thus remanded for the determination of appropriate attorney fees.
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