MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Oct 31 2019, 5:53 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Robert L. Nicholson                                      Kevin L. Likes
Carson, LLP                                              Likes Law Office, LLC
Fort Wayne, Indiana                                      Auburn, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Klink Trucking, Inc.,                                    October 31, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CC-319
        v.                                               Appeal from the DeKalb Superior
                                                         Court
Structures, Inc., and Klink                              The Honorable Monte L. Brown,
Concrete, Inc.,                                          Judge
Appellees-Defendants,                                    Trial Court Cause No.
                                                         17D02-0608-CC-236
             and
Michael R. Klink,
Appellee-Garnishee Defendant.



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019                  Page 1 of 12
[1]   Klink Trucking, Inc. (“KTI”) appeals the DeKalb Superior Court’s denial of its

      motion to set aside an allegedly fraudulent transfer of certain real estate by

      Structures, Inc. d/b/a Klink Concrete, Inc. (“Structures”) to Michael R. Klink

      (“Michael”). KTI presents two issues on appeal, which we restate as: (1)

      whether the trial court erred by holding that KTI’s monetary judgment against

      Structures had been discharged in Structures’s bankruptcy case, thereby

      precluding KTI’s attempt to collect on the judgment; and (2) whether the trial

      court erred in concluding that KTI could not proceed in its efforts to set aside

      the transfer of the real estate from Structures to Michael because KTI failed to

      name as a defendant Michael’s wife, Debra Klink (“Debra”).

[2]   We affirm.


                                      Facts and Procedural History

[3]   The facts underlying the present case are undisputed. Klink Concrete, Inc. was

      an assumed name of the corporate entity Structures, Inc.1 In 2005, Structures

      received a large amount of aggregate (consisting of sand, gravel, and limestone)

      for the construction and operation of a concrete plant. A dispute arose between

      KTI and Structures over this aggregate, and Structures did not pay KTI for the

      aggregate. As a result, KTI filed suit against Structures on August 14, 2006.


[4]   On April 2, 2007, Structures sold a majority of its assets to Fidler, Inc.

      (“Fidler”). At the same time, Structures entered into a ground lease with Fidler



      1
          That is, Structures, Inc. and Klink Concrete, Inc. are the same legal entity.

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019     Page 2 of 12
      concerning certain real estate (“Real Estate”) still owned by Structures. Under

      this ground lease, Structures would use the proceeds from the lease to pay on

      debts still owed by Structures.


[5]   On August 18, 2008, Structures transferred the Real Estate to Michael and

      Debra in consideration for $1.00. After the transfer of the Real Estate,

      Structures had no assets. At the time of the transfer of the Real Estate, the

      present value of the payments from the ground lease was in excess of $350,000.

      Michael later testified that he had personally guaranteed Structures’s debt and

      was in the process of refinancing this debt through Community State Bank. The

      Real Estate was used as collateral so Michael could refinance the debt. Michael

      was successful in refinancing the debt through Community State Bank and later

      refinanced the debt again through Garrett State Bank. The terms of the

      refinancing require the proceeds of the ground lease to be paid directly to

      Garrett State Bank.


[6]   A bench trial in the action between KTI and Structures took place on June 2,

      2009, and the trial court entered judgment in favor of KTI on July 20, 2009 in

      the amount of $71,129.81, plus prejudgment interest of $21,247.56. KTI then

      filed proceedings supplemental to enforce the judgment against Structures and

      sought to pierce the corporate veil so that it could collect from Michael.

[7]   On March 24, 2014, Structures filed for bankruptcy under Chapter 7 of the

      Bankruptcy Code, and the state court proceedings were stayed on that date.

      KTI did not file an adversary proceeding in the bankruptcy case. The


      Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 3 of 12
      bankruptcy proceedings were concluded on February 27, 2015. At this point,

      KTI moved the trial court to proceed with the state court action. On August 9,

      2017, KTI sought leave to amend its complaint to add Michael as a party and to

      set aside the conveyance of the Real Estate as fraudulent. The trial court

      granted KTI’s request to amend its complaint.


[8]   A bench trial was held on the matter on September 11, 2018. The trial court

      entered an order granting judgment in favor of Michael on December 3, 2018,

      which provides in relevant part:

              11. That in 2014, in bankruptcy case number 14-10598,
              Structures, Inc., filed bankruptcy and obtained a discharge of all
              of its debt, including that debt owed to [KTI].

              12. That on March 24, 2014, proceedings in this case were
              stayed due to the Structures, Inc., bankruptcy filing. However, at
              no time during the pendency of said bankruptcy proceeding did
              Plaintiff contest said bankruptcy or the discharge of the debt
              “Structures” owed to Plaintiff.

              13. That accordingly, as of the date of the trial in this matter,
              there no longer existed an enforceable obligation between
              Structures, Inc., and Plaintiff.

              14. That Plaintiff’s attempt to set aside the foregoing described
              deed from Structures, Inc., to Michael and [Debra] Klink, is
              premised and based on a debt formerly owed by Structures, Inc.,
              to Plaintiff, but which debt no longer exists due to the bankruptcy
              and cannot form the basis for setting aside the transfer.

              15. That pursuant to 11 U.S.C. 523(a)(6), the proper venue for
              Plaintiff to have preserved the judgment and the lien thereof, was
              an adversary action in the bankruptcy action filed by Structures,


      Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 4 of 12
              Inc. That debt having been completely discharged, Plaintiff is
              barred from pursuing any attempt to collect the judgment.

              16. That additionally, and oddly to this Court, Plaintiff failed to
              include [Debra] Klink, one of the owners of the subject real estate
              that is the subject of Plaintiff’s claim, as a party defendant in this
              case. That [Debra] Klink not having been included as a party
              defendant, even if there was a basis to Order a “voidance” of the
              transfer and Order the real estate re-conveyed, the Court could
              not order [Debra] Klink to execute any deed or other conveyance
              of the subject real estate. Further, a deed signed by one of the two
              owners as tenants by the entireties is an invalid conveyance.
              Wienke v. Lynch[, 407 N.E.2d 280 (Ind. Ct. App. 1980)].

              17. That for all of the foregoing reasons, judgment is entered in
              favor of Structures, Inc., and Michael R. Klink, and against the
              Plaintiff, [KTI].


      Appellant’s App. pp. 22–23. KTI now appeals.


                                             I. Discharge of Debts

[9]   KTI first argues that the trial court erred by concluding that it could not pursue

      its judgment against Structures because all of Structures’s debts were

      “discharged” in the Chapter 7 bankruptcy proceedings. KTI contends, and

      Structures and Michael agree, that only the debts of individuals, not

      corporations, can be “discharged” in Chapter 7 bankruptcy proceedings. See In

      re Tri-R Builders, Inc., 86 B.R. 138, 141 (Bankr. N.D. Ind. 1986) (holding that, as

      a corporation, debtor was not entitled to discharge of debts in Chapter 7

      bankruptcy proceedings). The intent of Congress in denying discharge to

      corporations was to “avoid the trafficking in corporate shells and in bankruptcy

      partnerships.” Id. at 140 (quoting H. R. Rep. No. 595, 95th Cong. 1st Sess. 384

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 5 of 12
       (1977)). For corporations, “[t]he filing of a chapter 7 creates a defunct

       corporation. In other words, the corporation ceases to operate or own any

       assets, but, may be technically a De Jure corporation by virtue of its certificate

       of incorporation from the state.”2 Id. at 141.


[10]   Thus, as a result of the bankruptcy proceedings, Structures became a defunct

       corporation with no assets. Even though its liabilities were technically not

       “discharged” because it is a corporation and not an individual, there are no

       assets remaining that belong to Structures for KTI to satisfy its judgment. If KTI

       wished to satisfy its judgment against Structures by claiming that the transfer of

       the Real Estate was fraudulent, it should have filed an adversary proceeding3 in

       the bankruptcy estate. See In re Colafranceschi, 577 B.R. 817, 825 (Bankr. D.

       Idaho 2017) (“Ordinarily, any disagreement or question of whether property is

       or is not property of the estate requires adjudication through an adversary

       proceeding.” (citing Fed. R. Bankr. P. 7001(2) (providing that an “adversary

       proceeding” includes “a proceeding to determine the validity, priority, or extent



       2
           As explained by the Georgia Court of Appeals:
                Under federal bankruptcy law, [a corporation] bec[omes] a “defunct corporation” without
                existence to operate outside the scope of the bankruptcy estate upon the filing of the Chapter 7
                bankruptcy. Title 11, United States Code, Section 727(a) provides that a corporation is not
                entitled to discharge under Chapter 7 bankruptcy. The intent of the statutory provision has been
                interpreted to preclude the continued existence of such corporations. The consequence of
                denying discharge to a corporation in a Chapter 7 proceeding is to render such entities
                “defunct,” which is akin to a dissolved corporation. As a defunct corporation, [the corporation]
                cease[s] to exist: it los[es] the right to own or operate assets and los[es] the right to pursue pre-
                petition causes of action . . . .
       Thornton v. Mankovitch, 626 S.E.2d 189, 191 (Ga. Ct. App. 2006).
       3
        In the context of a bankruptcy case, an “adversary proceeding” is a sub-action raised within the bankruptcy
       case and commenced by the filing of a complaint. In re Blevins Elec., Inc., 185 B.R. 250, 253 (Bankr. E.D.
       Tenn. 1995).

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019                         Page 6 of 12
       of a lien or other interest in property, but not a proceeding under Rule 3012 [for

       determining the amount of secured and priority claims] or Rule 4003(d) [for

       avoidance by debtors of transfers of exempt property].”); Fed. R. Bankr. P.

       7001, Advisory Committee Notes (“Proceedings to which the rules in Part VII

       [including Rule 7001] apply directly include those brought to avoid transfers by

       the debtor under §§ 544, 545, 547, 548 and 549 of the Code[.]”).

[11]   Although the trial court improperly referred to the “discharge” of Structures’s

       debts in the bankruptcy case, the fact remains that Structures is now a defunct

       corporation with no assets, and KTI should have initiated an adversary

       proceeding in the bankruptcy case if it wished to have the transfer of the Real

       Estate deemed fraudulent.


                               II. Failure to Name an Indispensable Party

[12]   Moreover, even though the trial court erred in concluding that Structures’s

       liabilities had been discharged in bankruptcy, the trial court also concluded that

       the failure to add Debra as a party was fatal to KTI’s claim. KTI contends that

       the trial court erred by so concluding.


[13]   Structures transferred the Real Estate, via a warranty deed, to “MICHAEL R.

       KLINK and DEBRA K. KLINK, husband and wife.” Ex. Vol., Plaintiff’s Ex.

       6. Under the common law, when real property is conveyed to a husband and

       wife, their interest in the property is as tenants by the entirety, and not as joint

       tenants or tenants in common. Underwood v. Bunger, 70 N.E.3d 338, 342 (Ind.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 7 of 12
       2017) (citing Chandler v. Cheney, 37 Ind. 391, 410 (1871); Hadlock v. Gray, 104

       Ind. 596, 598, 4 N.E. 167, 168 (1886)). As explained in Underwood:


               A tenancy by the entirety exists only between spouses and is
               premised on the legal fiction that husband and wife are a single
               entity. Once an entireties estate has vested, each spousal tenant
               becomes seized of the entire estate, but neither is seized of any
               divisible part thereof. Thus, an entireties estate cannot be severed by
               the unilateral action of one of the tenants. Neither spouse has a
               separable interest in property held by such a tenancy, so a
               conveyance by just one tenant is insufficient to pass legal title. An
               essential trait of this tenancy is that it devolves upon the
               surviving spouse the ownership of the property in real estate, free
               and clear of the individual indebtedness of the other spouse. When one
               spouse dies, the survivor, being already seized of the whole, can
               acquire no new or additional interest due to the survivorship.
               Rather, the survivor holds the entire estate, not by virtue of any
               right which he acquires as survivor, but by virtue of the original
               grant.


       70 N.E.3d at 342–43 (citations and internal quotation marks omitted)

       (emphases added); see also Ind. Code § 34-55-10-2(c)(5) (providing that “[a]ny

       interest that the debtor has in real estate held as a tenant by the entireties” is

       exempt from execution unless the debtor and the debtor’s spouse are jointly

       liable); Bayes v. Isenberg, 429 N.E.2d 654, 657 (Ind. Ct. App. 1981) (“property

       owned as an estate by entireties is immune to seizure and satisfaction of the

       individual debts of either husband or wife.”).

[14]   The common-law presumption in favor of an entireties estate for spouses is the

       default rule, but it can be defeated by conditions, limitations, and stipulations in

       the deed conveying the property showing that the grantor intended to convey a
       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 8 of 12
       different form of ownership. Underwood, 70 N.E.3d at 343 (citing Hadlock, 4

       N.E. at 168). Here, there are no such conditions, limitations, or stipulations in

       the warranty deed conveying the Real Estate to Michael and Debra that would

       indicate that the grantor intended to convey a form of ownership other than an

       entireties estate.


[15]   Accordingly, the Real Estate is immune to seizure and satisfaction of the debts

       or liabilities of Michael alone. See Underwood, 70 N.E.3d at 342–43; Bayes, 429

       N.E.2d at 657. At the very least, this means that Debra was an indispensable

       party to any action seeking to undo the transfer of the Real Estate to her and

       Michael. For whatever reason, however, KTI did not name Debra as a party to

       its action.

[16]   KTI argues4 that if Debra was an indispensable party, then the correct course of

       action would have been for the trial court to join Klink as a party. See Lutheran

       Hosp. of Ft. Wayne, Inc. v. Dep’t of Pub. Welfare, 397 N.E.2d 638, 647 (Ind. Ct.

       App. 1979) (holding that an action need not be dismissed merely because an



       4
         KTI also argues that the Defendants have waived any argument regarding the failure to add Debra as a
       party by failing to present this argument to the trial court. KTI notes that in Arnold v. Dirrim, this court held
       that the failure to move before or during trial to join an indispensable party constitutes waiver. 398 N.E.2d
       442, 448 (Ind. Ct. App. 1979) (citing Ind. Trial Rule 19(C) (“Nonjoinder under this rule may be raised by
       motion as provided in Rule 12(B)(7).”)). However, in Indiana Bureau of Motor Vehicles v. Gurtner, we reiterated
       although an appellant may not present an argument that was not presented to the trial court, this limitation
       does not apply to an appellee who seeks to affirm the trial court’s judgment. 27 N.E.3d 306, 311–12 (Ind. Ct.
       App. 2015) (citing Citimortgage v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012) (holding that a party who has
       prevailed at the trial court “may defend the trial court’s ruling on any grounds, including grounds not raised
       at trial.”). “This rule is consistent with the presumption in all appeals that a trial court’s judgment is correct
       as well as the general rule that on appeal we will affirm a judgment on any theory supported by the record.”
       Id. at 312. (citation omitted). Accordingly, as appellees, Structures and Michael are not precluded from
       arguing on appeal that Debra was an indispensable party.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019                      Page 9 of 12
       indispensable party was not named and that, in such a case, the correct

       procedure calls for an order, in the trial court’s discretion, that the unnamed

       party be made a party to the action or that the action continue without the

       unnamed party). The problem with this argument, however, is that the statute

       of limitations has already run on any claim against Debra. KTI admits as much.

       See Appellant’s Br. at 11 n.1. The statute of limitations has not run on claims

       against Michael because the fraudulent transfer claim was added via an

       amended pleading that relates back to the date of the original complaint naming

       Michael. Because this original complaint did not name Debra, it cannot relate

       back to her, as KTI admits. See id.


[17]   Indeed, the general rule is that “a new defendant to a claim must be added prior

       to the running of the statute of limitation[.]” Rieth-Riley Const. Co. v. Gibson, 923

       N.E.2d 472, 477 (Ind. Ct. App. 2010). Trial Rule 15(C) provides an exception

       to this rule. However, for this relation-back exception to apply:


               (1) the claim in the amended complaint must have arisen out of
               the conduct, transaction, or occurrence set forth or attempted to
               be set forth in the original complaint; (2) within 120 days after
               the commencement of the action, the party to be brought into the
               action must have received notice of the institution of the action
               so that it will not be prejudiced in maintaining a defense on the
               merits; and (3) within 120 days after commencement of the
               action, the party knew or should have known that if not for a
               mistake concerning the identity of the proper party, the action
               would have been brought against the party to be brought in by
               the amendment.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 10 of 12
       Rieth-Riley, 923 N.E.2d at 477–78 (citations omitted). KTI makes no argument

       that this exception applies. Indeed, it appears to concede that it does not. See

       Appellant’s Br. at 11 n.1 (acknowledging that claim against Debra cannot relate

       back to the filing of the original complaint).5

[18]   We are therefore left with a situation in which Debra cannot be added to the

       action even though she is an indispensable party, and any recovery against

       Michael cannot encumber Debra’s interest in the Real Estate. KTI cannot

       therefore set aside the transfer of the Real Estate, as Debra is “seized of the

       entire estate,” not “any divisible part thereof,” and Debra owns the property

       “free and clear of the individual indebtedness” of Michael. Underwood, 70

       N.E.3d at 342–43.

[19]   KTI argues that “[i]t is not at all uncommon for a creditor to have a lien on an

       undivided interest in property,” Appellant’s Reply Br. at 7 (citing Windell v.

       Miller, 687 N.E.2d 585 (Ind. Ct. App. 1997). But the defendants in Windell

       owned the property at issue as tenants in common, not as tenants by the

       entirety. Id. at 586. Moreover, the court in that case concluded that, because the

       undivided interest of one cotenant could not be encumbered by the liens against

       the other cotenant, and because the cotenant’s creditors could not have

       enforced their claims against the other cotenant, the non-debtor cotenant’s

       interest in the property was not liable to execution to satisfy the debtor co-



       5
         Moreover, there is no evidence that Debra received notice of the institution of the action within 120 days of
       its commencement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019                   Page 11 of 12
       tenant’s liens. Id. at 588. This does not support KTI’s position that it can satisfy

       its judgment by executing against Michael’s interest in the Real Estate or by

       rescinding the transfer of the Real Estate from Structures to Michael and Debra.


                                                 Conclusion
[20]   Even though the trial court erred by concluding that Structure’s debts were

       discharged in the bankruptcy case, the fact remains that KTI failed to bring an

       adversary proceeding in the bankruptcy case, which left Structures as a defunct

       corporation with no assets. Moreover, the trial court did not err in determining

       that KTI’s failure to name or join Debra as a party before the expiration of the

       statute of limitations is fatal to its claim seeking to set aside the conveyance of

       the Real Estate from Structures to Michael and Debra as tenants by the entirety.

[21]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-319 | October 31, 2019   Page 12 of 12
