                                                                                         FILED
                                                                                    Mar 23 2016, 5:40 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
      Arend J. Abel                                              Scott D. Pankow
      Cohen & Malad, LLP                                         Indianapolis, Indiana
      Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cheryl L. Underwood,                                      March 23, 2016

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                53A01-1509-MI-1305
              v.                                                Appeal from the Monroe Circuit
                                                                Court.
                                                                The Honorable E. Michael Hoff,
      Thomas Bunger, in his capacity                            Judge.
      as the Personal Representative of                         Cause No. 53C01-1504-MI-657
      The Estate of Kenneth K.
      Kinney; Judith M. Fulford; and
      Sheree Demming,
      Appellees-Defendants.




      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Cheryl L. Underwood appeals the trial court’s grant of the Estate of Kenneth K.

      Kinney’s motion to dismiss. We affirm.




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                                                      Issue
[2]   Underwood raises two issues, which we consolidate and restate as: Whether

      the trial court erred in interpreting the parties’ warranty deed.


                                Facts and Procedural History
[3]   On July 25, 2002, Merrill Kissick executed a warranty deed to Cheryl L.

      Underwood, Kenneth Kinney, and Judith M. Fulford. Kinney and Fulford

      were husband and wife. The deeded property was located at 812 East Eighth

      Street in Bloomington.


[4]   Subsequently, Sheree Demming sued Underwood and Kinney. On June 20,

      2014, Demming obtained a judgment against Underwood and Kinney for

      $154,552.14. The judgment became a lien on the Eighth Street property.


[5]   Kinney died on November 16, 2014. The current case began on April 13, 2015,

      when Underwood sued the Estate, Fulford, and Demming, requesting sale and

      partition of the Eighth Street property. The Estate filed a motion to dismiss

      pursuant to Indiana Trial Rule 12(B)(6), asserting that the Estate had no interest

      in the property because Fulford received Kinney’s interest in the property upon

      his death. Demming filed a motion for summary judgment, asking the trial

      court to determine that the Estate had no interest in the property and that she

      had a valid, enforceable lien against Underwood’s interest in the property.


[6]   Underwood responded to the motions and the trial court held oral argument.

      After the hearing, the court granted the Estate’s motion to dismiss and


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      Demming’s motion for summary judgment, concluding that Underwood and

      Fulford each owned a fifty percent interest in the Eighth Street property. The

      court further concluded that Demming’s lien on the property applied only to
                                                                        1
      Underwood’s interest. Underwood now appeals.


                                    Discussion and Decision
[7]   Underwood claims the trial court misinterpreted the 2002 warranty deed.

      Resolving this appeal requires us to determine the nature of the joint property

      interest that the deed granted to Underwood, Kinney, and Fulford. The

      construction of a written instrument such as a deed is a pure question of law.

      Corn v. Corn, 24 N.E.3d 987, 994 (Ind. Ct. App. 2015), trans. denied. Our

      standard of review is de novo, meaning that we owe no deference to the trial

      court’s determination. Barrington Mgmt. Co., Inc. v. Paul E. Draper Family Ltd.

      P’ship, 695 N.E.2d 135, 140 (Ind. Ct. App. 1998).


[8]   When construing a written instrument, unambiguous contractual language is

      conclusive upon the parties and the courts. Niezer v. Todd Realty, Inc., 913

      N.E.2d 211, 215 (Ind. Ct. App. 2009), trans. denied. The court should attempt

      to determine the parties’ intent at the time the instrument was executed. Id. If

      an instrument’s language is unambiguous, the parties’ intent is determined from

      the four corners of the document. Id. The written instrument must be read as a




      1
        Fulford and Demming are not participating in this appeal. Nevertheless, a party of record below remains a
      party on appeal. Ind. Appellate Rule 17(A).

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       whole, and every attempt must be made to avoid rendering words, phrases, or

       terms ineffective or meaningless. Id. at 215-16.


[9]    In Indiana, there are three forms of concurrent ownership of real property:

       joint tenancy, tenancy in common, and tenancy by the entirety. Powell v. Estate

       of Powell, 14 N.E.3d 46, 48 (Ind. Ct. App. 2014). Tenancy by the entirety exists

       only between married spouses. Id. As a general matter, property held by the

       entireties creates an estate owned by the spouses as one unit. Anuszkiewicz v.

       Anuszkiewicz, 172 Ind. App. 279, 360 N.E.2d 230, 232 (1977). Each 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. Id.; see also Ind. Code § 32-17-

       3-1 (2002) (“Upon the death of either party to the marriage, the survivor is

       considered to have owned the whole of all rights under the contract from its

       inception.”). Accordingly, no transfer of the property occurs between the

       spouses by survivorship. Id.


[10]   By contrast, a tenancy in common is property held by two or more persons by

       several and distinct titles. Windell v. Miller, 687 N.E.2d 585, 587-88 (Ind. Ct.

       App. 1997). Tenants in common are united only by their right to possession of

       the property, and their rights and interests are held severally rather than jointly.

       Id. at 588.


[11]   In general, a contract to purchase real estate “creates an estate by the entireties

       in the husband and wife.” Ind. Code § 32-17-3-1. A contract shall be construed

       to create a tenancy in common between spouses only if the contract expressly


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       creates that sort of tenancy or if “it appears from the tenor” of the contract that

       it was intended to create a tenancy in common. Id. Stated differently, if a

       property deed contains no qualifying words, the married grantees hold the

       estate as tenants by the entirety. Ramer v. Smith, 896 N.E.2d 563, 567 (Ind. Ct.

       App. 2008). By contrast, “if there are words in the deed which so qualify or

       define the estate conveyed as to make it apparent that the parties intended the

       grantees to hold as tenants in common, such intention will prevail and must be

       given effect.” Richards v. Richards, 60 Ind. App. 34, 110 N.E. 103, 104 (1915).

       In conveyances of land to a married couple, all doubts are resolved in favor of

       estates by the entireties and against joint estates. Ramer, 896 N.E.2d at 567.


[12]   This case presents an additional twist: Kinney and Fulford, who were husband

       and wife, bought the property together with Underwood. In general, when a

       married couple purchases property jointly with a third party, the spouses “will

       take an undivided one-half interest as tenants by the entireties and the third

       party will take an undivided one-half interest as a joint tenant.” Ramer, 896

       N.E.2d at 567-68. If, however, the language of the deed expresses an intent to

       create a joint tenancy or tenancy in common as to each of the purchasers,

       regardless of the marital relationship, then that intention must be given effect.

       See id. at 569 (deed by which two couples purchased property together

       established that the four persons’ interests in the land were as four joint tenants

       rather than as two estates by the entireties).


[13]   Underwood claims the trial court erred because the deed established that she,

       Kinney, and Fulford were all tenants in common even though Kinney and

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       Fulford were married. She concludes that after Kinney died, his interest in the

       Eighth Street property went to his Estate, which was thus a proper party to her

       lawsuit. The Estate responds that Kinney and Fulford held one-half of the

       property as tenants by the entireties, and they were tenants in common with

       Underwood, who held the other one-half interest in the property. According to

       the Estate, Kinney’s interest in the property passed to Fulford upon his death

       rather than to his Estate, so the Estate had no interest in the property and was

       not a proper defendant to Underwood’s claim for partition.


[14]   The warranty deed states, in relevant part:

               MERRILL DAVIS KISSICK, of legal age (“Grantor”), of
               MONROE County, Indiana, CONVEYS AND WARRANTS to
               CHERYL L. UNDERWOOD, of legal age, and KENNETH
               KINNEY AND JUDITH M. FULFORD, husband and wife, all
               as Tenants-in-Common (“Grantee”), of MONROE County,
               Indiana, for and in consideration of the sum of Ten Dollars
               ($10.00) and other valuable consideration, the receipt of which is
               acknowledged, the following described real estate in MONROE
               County, Indiana . . . .
       Appellant’s App. p. 13.


[15]   The trial court correctly determined that Kinney and Fulford took their interest

       in the Eighth Street property under the deed as tenants by the entireties. The

       deed identified Kinney and Fulford’s relationship as spouses. See Citizens Nat’l

       Bank of Whitley Cnty. v. Stasell, 408 N.E.2d 587, 592-93 (Ind. Ct. App. 1980) (a

       deed that granted an interest to a couple as husband and wife created a tenancy

       by the entireties).



       Court of Appeals of Indiana | Opinion 53A01-1509-MI-1305 | March 23, 2016    Page 6 of 8
[16]   Underwood points to the phrase “all as Tenants-in-Common” as support for

       her claim that the deed granted the three grantees a tenancy in common. She

       cites Thornburg v. Wiggins in support of her claim. 135 Ind. 178, 34 N.E. 999

       (1893). In that case, a deed granted property to a married couple “in joint

       tenancy.” 34 N.E. at 1002. Our Supreme Court determined that the phrase “in

       joint tenancy” clearly overcame the presumption in favor of tenancies by the

       entirety and gave the spouses a joint tenancy in the property. Id. By contrast,

       in the current case the deed’s phrase “all as Tenants-in-Common” must be

       balanced against the identification of Kinney and Fulford as husband and wife

       and does not clearly overcome the presumption in favor of tenancies by the

       entirety. See Simons v. Bollinger, 154 Ind. 83, 56 N.E. 23, 25 (1900) (phrase in

       deed conveying land to husband and “his wife, jointly,” insufficient to

       overcome presumption in favor of tenancy by the entirety); cf. Ramer, 896

       N.E.2d at 569 (the phrase “as joint tenants” sufficient to establish joint tenancy

       among four couples rather than two estates by the entireties). If the grantor had

       intended to create a tenancy in common among Underwood, Kinney, and

       Fulford, then the deed could have omitted the reference to Kinney and Fulford

       as husband and wife.


[17]   Based on this analysis, Kinney’s interest in the Eighth Street Property passed

       directly to Fulford, and not his Estate, upon his death. See Ind. Code § 32-17-3-

       1. As a result, the Estate had no interest in the property and was not a proper

       defendant in Underwood’s claim for partition. The trial court did not err by

       granting the Estate’s motion to dismiss pursuant to Indiana Trial Rule 12(B)(6).


       Court of Appeals of Indiana | Opinion 53A01-1509-MI-1305 | March 23, 2016   Page 7 of 8
                                                 Conclusion
[18]   For the foregoing reasons, we affirm the trial court’s judgment.


[19]   Affirmed.


       Robb, J., and Pyle, J., concur.




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