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
