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.

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 1 of 11

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.

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 2 of 11

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,

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 3 of 11

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

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 4 of 11

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).

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 5 of 11

[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,

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 7 of 11

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

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 8 of 11

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.

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 9 of 11

[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.

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 10 of 11

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

Court of Appeals of Indiana | Memorandum Decision 88A05-1604-PL-902 | November 15, 2016 Page 11 of 11