Jacqueline K. Durham v. Brandon D. Scott, Adam J. Scott, Raymond E. Decker, and Dianne J. Decker (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2016, 6:56 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Jonathan A. Leachman John A. Kraft
Fifer Law Office Katelyn M. Hines
New Albany, Indiana New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacqueline K. Durham, November 15, 2016
Appellant-Plaintiff, Court of Appeals Case No.
88A05-1604-PL-902
v. Appeal from the Washington
Circuit Court
Brandon D. Scott, Adam J. The Honorable Larry Medlock,
Scott, Raymond E. Decker, and Judge
Dianne J. Decker, Trial Court Cause No.
Appellee-Defendants. 88C01-1502-PL-63
Riley, Judge.
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STATEMENT OF THE CASE
[1] In this interlocutory appeal, Appellant-Plaintiff, Jacqueline K. Durham
(Durham), appeals the trial court’s denial of her motion for judgment on the
pleadings in her action for ejectment, eviction, quiet title, and replevin against
Appellees-Defendants, Brandon D. Scott and Adam J. Scott (collectively, the
Scotts) and Raymond E. Decker and Dianne J. Decker (collectively, the
Deckers).
[2] We affirm and remand.
ISSUES
[3] Durham raises one issue on interlocutory appeal, which we restate as follows:
Whether the trial court erred in denying Durham’s motion for judgment on the
pleadings.
[4] The Scotts and the Deckers raise three additional issues, which we consolidate
and restate as follows: Whether Durham’s pending petition for dissolution of
marriage serves to prevent Durham from receiving her estranged spouse’s share
of certain property following his death.
FACTS AND PROCEDURAL HISTORY
[5] On February 6, 1998, Grand Land, Inc. conveyed to David A. Scott (David)
and Durham, “as joint tenants with rights of survivorship and not as tenants in
common,” a parcel of real property located at 12353 East Casey Hallow Road
in Pekin, Washington County, Indiana (the Property). (Appellant’s App. p.
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17). On February 12, 1998, the Warranty Deed conveying the Property was
filed with the Washington County Recorder. Three months later, on May 31,
1998, David and Durham were married. The Scotts are David’s sons from a
prior marriage. In approximately 2010, David’s mother and step-father—the
Deckers—sold their house and constructed a new home on the Property. It
appears that the Deckers entered into an arrangement with David and Durham
providing that, in exchange for being able to construct their home on the
Property for a nominal rental fee, the Deckers would bequeath their house to
David and Durham. On August 30, 2013, Durham filed a petition to dissolve
her fifteen-year marriage to David. On October 28, 2014, while the petition for
dissolution remained pending, David died as the result of a motor vehicle
accident.
[6] On February 5, 2015, Durham filed a Verified Complaint for Ejectment,
Eviction, Quiet Title, and Replevin against the Scotts and the Deckers. In her
Complaint, Durham states that she and David were married at the time of his
death, and they had owned the Property as joint tenants with right of
survivorship. As a result of David’s death, Durham alleges that she now “is the
owner in fee simple” of the Property. (Appellant’s App. p. 13). Accordingly,
Durham claims that she “is entitled to possession of the [Property,]” which the
Scotts and the Deckers “are unlawfully occupying.” (Appellant’s App. p. 13).
Durham further asserts that she is entitled to “full and complete right and title
in the [Property].” (Appellant’s App. p. 15). Finally, Durham alleges that the
Scotts and the Deckers had “wrongfully taken” household goods, furnishings,
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and other personal property to which she is legally entitled. (Appellant’s App.
p. 15). Accordingly, Durham seeks an order of ejection, eviction, quiet title,
and replevin against the Scotts and the Deckers. She also requests, in part,
recovery for the value of the Scotts’ and the Deckers’ occupation, withholding,
and use of, as well as injury to, the Property.
[7] On April 30, 2015, the Scotts and the Deckers filed their Answer and
Counterclaims. The Scotts and the Deckers agree with Durham’s assertions
that she and David held the Property as joint tenants with right of survivorship
and that David died while Durham’s petition for dissolution remained pending.
Despite acknowledging that David and Durham were never divorced, the Scotts
and the Deckers dispute Durham’s statement that she and David were still
“married” on David’s date of death based on the fact that Durham had filed a
petition for dissolution. (Appellant’s App. p. 21). The Scotts and the Deckers
deny that Durham is entitled to possession of and full title to the Property and
further deny her allegations with respect to any personal property. Moreover,
the Scotts and the Deckers filed multiple counterclaims. Based on their
contention that the Deckers constructed a house on the Property pursuant to a
contract with David in which the Deckers would pay $1.00 per year in rent and
would bequeath the house to David and Durham, the Scotts and the Deckers
claim that Durham’s efforts to evict and eject constitute a breach of contract, a
breach of lease and life estate, and/or an improper revocation of a gift. The
Scotts and the Deckers further assert that Durham defrauded the Deckers by
contracting to allow the Deckers to construct and live on the Property for the
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rest of their lives and subsequently attempting to evict them, and they insist that
Durham should be estopped from avoiding her contractual duty based on the
Deckers’ reliance on Durham’s promise. In addition, the Scotts and the
Deckers claim that David and Durham held the Property as tenants by the
entirety, which was converted to a tenancy in common upon Durham’s petition
for dissolution, thereby eliminating Durham’s right of survivorship. As such,
the Scotts and the Deckers insist that they have an interest in the Property—the
Scotts as heirs to David’s estate and the Deckers as parties to a contract/life
estate/irrevocable gift. Accordingly, the Scotts’ and the Deckers’ counterclaims
seek orders for ejectment, quiet title, and partition of the Property based on
their respective interests.
[8] On June 19, 2015, Durham filed her Answer to Counterclaims, denying the
Scotts’ and the Deckers’ claims. Durham also asserts several affirmative
defenses, including that the purported contract for the Deckers to reside in a
house on the Property is not valid and is barred by the Statute of Frauds.
[9] On October 15, 2015, Durham filed a Motion for Judgment on the Pleadings
pursuant to Indiana Trial Rule 12(C). On December 17, 2015, the trial court
conducted a hearing. On December 23, 2015, the trial court issued its Entry on
Hearing, concluding “[t]hat based upon the defenses of [the Scotts and the
Deckers] and the counterclaims filed [in] this cause[,] the [c]ourt finds that it [is]
inappropriate to find for [Durham] at this time solely on the pleadings.”
(Appellant’s App. p. 10).
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[10] On January 18, 2016, Durham filed a motion to certify the trial court’s Order
for interlocutory appeal, which the trial court granted on April 12, 2016. On
May 20, 2016, over the objection of the Scotts and the Deckers, our court
accepted jurisdiction over the appeal. Additional facts will be provided as
necessary.
DISCUSSION AND DECISION
I. Standard of Review
[11] Durham claims that the trial court erred in denying her motion for judgment on
the pleadings. Indiana Trial Rule 12(C) provides that “[a]fter the pleadings are
closed but within such time as not to delay the trial, any party may move for
judgment on the pleadings.” A motion under Trial Rule 12(C) “attacks the
legal sufficiency of the pleadings.” Milestone Contractors, L.P. v. Ind. Bell Tel. Co.,
739 N.E.2d 174, 176 (Ind. Ct. App. 2000), trans. dismissed. We review a trial
court’s decision on a motion for judgment on the pleadings de novo. Midwest
Psychological Ctr., Inc. v. Ind. Dep’t of Admin., 959 N.E.2d 896, 902 (Ind. Ct. App.
2011), trans. denied. “A judgment on the pleadings is proper only when there
are no genuine issues of material fact and when the facts shown by the
pleadings clearly establish that the non-moving party cannot in any way
succeed under the facts and allegations therein.” Id. On review, we will “deem
the moving party to have admitted all facts well-pleaded and the untruth of [its]
own allegations that have been denied.” Id. (alteration in original). We will
draw all reasonable inferences in favor of the non-moving party and against the
moving party. Id.Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 6 of 11
II. Judgment on the Pleadings Versus Summary Judgment
[12] As an initial matter, we address the contention of the Scotts and the Deckers
that Durham’s Motion for Judgment on the Pleadings was ruled upon as a
motion for summary judgment. Indiana Trial Rule 12(C) provides that “[i]f, on
a motion for judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in [Trial] Rule 56, and all
parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.” The Scotts and the Deckers direct our
attention to their Response to Plaintiff’s Motion for Judgment on the Pleadings,
in which they argue that Durham committed adultery and abandonment, which
would ostensibly prevent her from receiving any share of David’s estate.
Because these factual allegations are extraneous to the pleadings, and because
Durham did not specifically request that these assertions be stricken from the
record, the Scotts and the Deckers insist that the proper standard is Trial Rule
56 for a motion for summary judgment.
[13] We note that the Scotts and the Deckers do not allege any error on the part of
the trial court for failing to treat Durham’s motion for judgment on the
pleadings as one for summary judgment. Rather, they simply assert that the
trial court did, in fact, handle the matter as a summary judgment motion. We
disagree. If a trial court “considers matters outside the pleadings, the motion is
automatically converted into one for summary judgment and will be reviewed
as such by the court on appeal.” Gregory and Appel, Inc. v. Duck, 459 N.E.2d 46,
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50 (Ind. Ct. App. 1984). In the present case, in its Entry on Hearing, the trial
court specifically stated that its decision was based “solely on the pleadings.”
(Appellant’s App. p. 10). Thus, the trial court clearly did not consider the
extraneous matters and ruled on Durham’s motion as a motion for judgment on
the pleadings rather than as one for summary judgment.
III. Joint Tenancy
[14] Durham claims that she was entitled to a judgment on the pleadings because
she became the sole owner of the Property immediately upon David’s death. In
particular, Durham asserts that she and David held the property as joint tenants
with the right of survivorship, and, in their Answers, the Scotts and the Deckers
agree with this statement of fact. Moreover, the Warranty Deed, which is part
of Durham’s Complaint, conveyed the Property to David and Durham “as joint
tenants with rights of survivorship and not as tenants in common.”
(Appellant’s App. p. 17). See Perez v. Gilbert, 586 N.E.2d 921, 924 (Ind. Ct.
App. 1992) (noting that the intent to create a joint tenancy with a right of
survivorship “must be declared expressly in the instrument or it must manifestly
appear from the tenor of the instrument”). Long ago, our court stated that
“[a]n estate in joint tenancy is an estate held by two or more tenants jointly,
with an equal right in all to share in the enjoyment of the land during their lives.
Upon the death of any one of the tenants, his share vests in the survivors.”
Sharp v. Baker, 96 N.E. 627, 628 (Ind. App. 1911). However, during his
lifetime, a joint tenant “may sell or mortgage his or her interest in the property
to a third party,” thereby severing the joint tenancy and destroying the right of
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survivorship. Grathwohl v. Garrity, 871 N.E.2d 297, 301 (Ind. Ct. App. 2007);
Morgan v. Catherwood, 167 N.E. 618, 622 (Ind. App. 1929).
[15] Although the Scotts and the Deckers admit that David and Durham owned the
Property as joint tenants with right of survivorship, they inconsistently assert in
their counterclaim that David and Durham actually held the property as tenants
by the entirety. A tenancy by the entirety is a special form of joint tenancy with
a right of survivorship, which “can exist between only a husband and wife.” 1
Powell v. Estate of Powell, 14 N.E.3d 46, 48, 50 (Ind. Ct. App. 2014). “[P]roperty
held by the entireties creates an estate owned by the husband and wife as one
unit.” Anuszkiewicz v. Anuszkiewicz, 360 N.E.2d 230, 282 (Ind. Ct. App. 1977).
Each spouse “is seized of the whole estate rather than an individual portion, so
that upon the death of one, the survivor holds under the original grant.
Accordingly, no transfer of the property occurs between the spouses by
survivorship.” Id. In a tenancy by the entirety, “neither spouse alone may do
anything to destroy the tenancy, including transferring an interest without the
other spouse’s consent or ousting the other from possession.” Estate of Grund v.
Grund, 648 N.E.2d 1182, 1185 (Ind. Ct. App. 1995), trans. denied. “Absent
consent of one of the spouses, only a severance of the marital relationship may
destroy the tenancy by the entirety.” Id.1
We note that the undisputed facts establish that David and Durham were not married at the time the
Property was conveyed to them as joint tenants.
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[16] In general, unless a deed contains qualifying words to signify the type of
tenancy, husband and wife take land conveyances as tenants by the entirety.
Wilken v. Young, 41 N.E. 68, 69 (Ind. 1895). “A joint tenancy may be created to
exist between husband and wife by the express terms or tenor of the deed of
conveyance.” Id. Thus, regardless of the marital relationship, it is the intent
clearly set forth in the deed that must be given effect. See id. In the present
case, the unambiguous language of the Warranty Deed establishes, as a matter
of law, that David and Durham held the property as joint tenants with right of
survivorship and not as tenants by the entirety. 2 See Corn v. Corn, 24 N.E.3d
987, 994 (Ind. Ct. App. 2015) (noting that the construction of a deed is a pure
question of law), trans. denied. Thus, upon David’s death, his share of the
Property vested in Durham.
[17] Nevertheless, there are matters that cannot be resolved based on the pleadings
alone. As we already noted, a judgment on the pleadings is proper only if the
pleadings alone “clearly establish that the non-moving party cannot in any way
succeed under the facts and allegations therein.” Midwest Psychological Ctr., Inc.,
959 N.E.2d at 902. Simply because the Property was conveyed to David and
Durham as a joint tenancy with right of survivorship does not resolve whether
the Scotts and the Deckers have any interest in the Property based on the
various theories set forth in their counterclaims. Specifically, the Deckers have
2
Because marital status has no bearing on a joint tenant’s right of survivorship, we need not address the
parties’ lengthy arguments concerning the implications of Durham’s pending petition for dissolution on her
interest in the Property.
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raised genuine issues of material fact regarding their purported lifetime right to
possess the estate pursuant to a contract, life estate, or irrevocable gift.
Moreover, there are questions of fact relating to Durham’s assertion that the
Scotts and the Deckers are in wrongful possession of items of personal property,
which the Scotts and the Deckers have categorically denied. Based on the
Pleadings alone, and taking all of the well-pleaded assertions as true, we cannot
say that Durham’s joint tenancy automatically entitles her to an order of
ejectment, eviction, quiet title, and replevin.
CONCLUSION
[18] Based on the foregoing, we conclude that the trial court properly denied
Durham’s Motion for Judgment on the Pleadings.
[19] Affirmed and remanded.
[20] Bailey, J. and Barnes, J. concur
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