Powell v. Estate of Powell
| Citation | 14 N.E.3d 46 |
| Decision Date | 03 July 2014 |
| Docket Number | No. 88A01–1402–PL–59.,88A01–1402–PL–59. |
| Parties | G. Kevin POWELL, Appellant, v. ESTATE OF Gary POWELL, Appellee. |
| Court | Court of Appeals of Indiana |
14 N.E.3d 46
G. Kevin POWELL, Appellant
v.
ESTATE OF Gary POWELL, Appellee.
No. 88A01–1402–PL–59.
Court of Appeals of Indiana.
July 3, 2014.
Mark D. Johnson, Allen & Allen, Salem, IN, Attorney for Appellant.
Andrew Wright, Andrew Wright, P.C., Salem, IN, Attorney for Appellee.
OPINION
FRIEDLANDER, Judge.
G. Kevin Powell (Kevin) appeals a grant of summary judgment in favor of the Estate of Gary Powell (the Estate), which determined that Kevin and the Estate were tenants in common and thus one-half owners of real estate (the Real Estate) conveyed to them by their father, Lawrence Powell. Kevin presents the following restated issues for review: Does a deed conveying property to brothers as tenants by the entireties create a joint tenancy with rights of survivorship, or instead a tenancy in common?
We reverse and remand with instructions.
The relevant facts are not in dispute. On December 1, 1995, Lawrence Powell conveyed the Real Estate to his two sons, Kevin and Gary Powell (Gary) by means of a warranty deed. The relevant portion of the deed stated as follows: “This Indenture Witnesses that Lawrence H. Powell ... CONVEY AND WARRANT [sic] to G. Kevin Powell ... and Gary Lee Powell ..., as tenants by the entireties ..., the following described real estate in Washington County, State of Indiana ... [.]” Appellant's Appendix at 22. Gary died on March 2, 2013, and is survived by Kevin. On August 5, 2013, the Estate filed a complaint for declaratory judgment seeking a ruling that title to the Real Estate was held by Kevin and Gary as tenants in common and not as joint tenants with rights of survivorship. On August 26, 2013, Kevin filed a counterclaim asking for declaratory judgment to the effect that the deed created in the brothers a joint tenancy with right of survivorship, meaning that upon Gary's death, Kevin became the sole owner of the Real Estate. The trial court conducted a hearing, after which it entered the following conclusions of law and judgment:
1. That there is no intent other than to transfer real estate to Gary Powell and G. Kevin Powell that manifest itself from the four corners of the deed or from the tenor of the deed.
2. Lawrence H. Powell executed a Warranty Deed on December 1, 1995 transferring real property to brothers G. Kevin Powell and Gary L. Powell as “tenants by the entireties”[.]
3. That the cases cited by the [sic] G. Kevin Powell involved people who are husband and wife or posing as husband and wife and thus are distinguishable.
THEREFORE, the Plaintiff's motion for Summary Judgment is hereby GRANTED and the Defendant's Motion for Summary Judgment is hereby DENIED. G. Kevin Powell and The Estate of Gary Powell are hereby each granted one half of the Franklin Township, Washington County Indiana real estate as tenants in common.
Id. at 6.
Kevin challenges the trial court's ruling that the conveyance to him and his brother “by the entireties” was a nullity and that Lawrence Powell intended to convey the real estate to his sons as tenants in common. The question as to the legal effect of a conveyance of real estate by the entirety to two or more individuals who are not husband and wife is one of first impression in Indiana.
The question was presented in the present case in the form of a motion for summary judgment and a ruling thereon. Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact with respect to a particular issue or claim. Ind. Trial Rule 56(C) ; Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574 (Ind.2013). We review a summary judgment order de novo. Walczak v. Labor Works–Ft. Wayne LLC, 983 N.E.2d 1146 (Ind.2013). Considering only the facts supported by evidence designated by the parties, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” T.R. 56(C) ; see also Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind.2009). Where the moving party designates material evidence demonstrating there are no genuine issues of material fact with respect to a particular issue or claim, the burden shifts to the non-moving party to come forward with designated evidence showing the existence
of a genuine issue of material fact. Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574. Upon review, we will accept as true those facts alleged by the nonmoving party. Sees v. Bank One, Ind., N.A., 839 N.E.2d 154 (Ind.2005). Moreover, we construe all factual inferences in favor of the nonmoving party and resolve all doubts as to the existence of a material issue against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193. The appellant bears the burden of demonstrating that the grant of summary judgment was erroneous. Williams v. Tharp, 914 N.E.2d 756 (Ind.2009). Finally, we will affirm a grant of summary judgment on any theory supported by the record. Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574.
As an initial matter we note that, as indicated above, the relevant material facts are not in dispute. There is, however, something of a dispute about what the trial court designated as Finding of Fact No. (2), which states: “That the designation of Gary L. Powell and G. Kevin Powell as tenants by the entireties is a legal nullity as they are brothers and not husband and wife.” Appellant's Appendix at 5. As an alternative to his main argument that the trial court erred in concluding that a faulty conveyance “by the entirety” to individuals who are not husband and wife creates a tenancy in common, Kevin argues persuasively that Finding No. (2) should, in fact, be regarded as a conclusion of law that it is not supported by the designated evidence, and therefore that summary judgment was inappropriate. We need not address this argument because we reach the same conclusion via a different route.
The question is a straightforward one: what was the effect of the conveyance to brothers Kevin and Gary “by the entirety”? In Indiana, and generally, there are three forms of concurrent ownership of real estate, including joint tenancy, tenancy in common, and tenancy by the entirety. Perez v. Gilbert, 586 N.E.2d 921 (Ind.Ct.App.1992). The latter, tenancy by the entirety, can exist between only a husband and wife. Id. Thus, Lawrence could not convey the land to his sons utilizing this ownership form. By process of elimination, this means that the ownership interest created in favor of Kevin and Gary by the 1995 deed was either joint tenancy or tenancy in common. Kevin argues that the deed conveyed a joint-tenancy ownership interest, while the Estate contends that the flawed conveyance conferred a tenancy-in-common ownership interest. We will explore these arguments.
Pursuant to Ind.Code Ann. § 32–17–2–1(c) (West, Westlaw current with all legislation of the Second Regular Session of the 118th General Assembly (2014) with effective dates through May 1, 2014):
Except as provided in subsection (b), a conveyance or devise of land or any interest in land made to two (2) or more persons creates an estate in common and not in joint tenancy unless:
(1) it is expressed in the conveyance or devise that the grantees or devisees hold the land or interest in land in joint tenancy and to the survivor of them; or
(2) the intent to create an estate in joint tenancy manifestly appears from the tenor of the instrument.
The Estate notes that this statute, in some form, was enacted long ago. The version in effect at the time this deed was executed, the former Ind. Code Ann. § 32–1–2–7, was, for our purposes, substantially the same as the current version set out above. The statutory presumption is that concurrent owners of real property are tenants in common. The first exception to that presumption, set out in subsection (c)(1),
clearly does not apply here because Lawrence did not express in the deed that his sons should “hold the land or interest in land in joint tenancy and to the survivor of them”, or substantially similar language. This leaves subsection (c)(2), which applies when the grantor expresses an intent to convey the land in joint tenancy.
The Estate contends Lawrence did not do this because his use of the phrase, “tenants by the entireties”, Appellant's...
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