ANDERSON — On June 5, 2019, Nicole K. Kapuscinski performed an Internet search for homes for sale and happened upon a century-old country house located on 1.47 acres.
Deciding it would become her forever home, the disabled veteran told the ReMax real estate agent she wanted the home and took out a VA loan for the property in the 3200 block of Spring Hill Road, closing on the sale July 2, 2019.
But the home is costing her much more than the $98,000 mortgage. Kapuscinski said she is more than $50,000 in the red as she defends herself against a lawsuit brought by Kenneth E. Hodson and his wife Cathy, who claim they own the .47 acres.
“He’s sure they’re going to do the reservoir project, and he wants the property to build on,” Kapuscinski told The Herald Bulletin.
The Hodsons declined to comment, pending the outcome of their lawsuit, which is scheduled to go to trial on Feb. 28.
In fact, Kapuschinski, 44, an activist who has supported legal cannabis, funding for needle exchange programs and 72-hour time limits for molesters to register as sexual offenders after incarceration, turned the trial into a Facebook event. She also has placed a large sign on the property reading, “Kenneth Hodson is a liar.”
“I think it’s pertinent to homeowners. We should all be learning,” she said of the invitation.
Kapuschinski said she realized there might be trouble in December 2019 when she looked out the window and saw a car slowly cruising in front of the house as if it wanted to enter the property. She went outside to see what was going on.
“I didn’t know him or know his name until he showed up,” she said of Hodson, who is a member of the Anderson Community Schools Board of Trustees.
Kapuschinski said she learned Hodson once owned the property but sold it 17 years ago. The property has changed hands at least twice since then, having been owned by Timothy and Ruby Thomas and Jason and Jean Laytart.
There are no documents showing the .47 acres under dispute ever was separated from the total parcel, she added. In fact, an order denying summary judgment issued Jan. 7 by Madison Circuit Court 6 Judge Mark Dudley confirms that.
“For tax purposes, real estate is tied to tax identification numbers,” he wrote. “There was never a new tax identification number issued for the half-acre lot.”
The Hodsons initiated their lawsuit on April 14, 2020, in Madison County Circuit Court 6, seeking affirmation of their ownership of the .47 acres through establishment of title through their own adverse possession, which they say took place in 2014. Adverse possession, commonly known as squatters’ rights, is the principle that someone who never paid for a property might be an owner because he or she has used it.
On July 7, 2020, Kapuscinski filed countersuit for slander of title, seeking the same plus actual and punitive damages totaling at least $250,000. According to the countersuit, filed on her behalf by Anderson-based attorney Ralph E. Sipes, the cloud caused by the Hodsons’ false claims diminishes the fair market value of the property.
“I’m the one with the legal title,” she insisted. “He was fully aware I had legal title and he didn’t own it when he started the lawsuit.”
Kapuscinski’s counter-complaint also accuses the Hodsons of trespass, saying they have prevented her access to the disputed acreage by placing a lock on a shared gate, sending a real estate surveyor onto the property and sending in a tree service company to cut down trees.
“The Hodsons’ acts of trespass were committed maliciously, along with the elements of fraud, deliberate oppression, or malice entered into by the commission of the trespasses,” her complaint said.
According to the Hodsons’ complaint, prepared by their attorney R.P. Fisher of Wabash-based Fisher & Ireland, they claim to have controlled the .47 acres since July 1996. However, Kapuscinski in her response to the Hodsons’ complaint disputes their legal description as incomplete, an assertion supported by the warranty deed, and counters that the couple sold the entire 1.47 acres in 2004.
“Since July 1996, Plaintiffs’ actions with respect to the above described real estate and premises thereon have been sufficient to give actual or constructive notice to the legal owners from time to time, of plaintiffs’ intent and exclusive control,” the Hodsons’ complaint said.
In essence, the Hodsons claim the current misunderstanding with Kapuscinski was caused by a mistake in the transfer and recording of the property to the Thomases in 2004.
Kapuscinski’s court response further asserts the Hodsons no longer can lay claim to the .47 acres because the statute of limitations is 10 years from the initial date of their sale of the property to the Thompsons.
The payment of taxes may be the issue that, in the end, decides this case.
“A requirement to prevail on an adverse possession claim is evidence that the adverse possessor paid taxes on the property or had reasonable good faith belief that they did so,” Dudley wrote in his Jan. 7 order.
Initially, both parties claimed to have paid taxes on the .47 acres. But Kapuscinski is the only one to provide the court proof her taxes were paid through mortgage escrow.
“Both parties agree that the Hodsons did not pay taxes on the disputed parcel,” Dudley wrote in his order.
Though he said the evidence cast serious doubt on whether the Hodsons “reasonably” could have believed they had paid the taxes on that .47 acres all those years, Dudley concluded that question of material fact is best left to a jury.