                                                                                    FILED
                                                                               May 13 2019, 6:17 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Tammy L. Ortman                                           Michael D. Dobosz
      Jennifer S. Ortman                                        Hilbrich Cunningham Dobosz &
      Lewis & Kappes, P.C.                                      Sandoval, LLP
      Indianapolis, Indiana                                     Highland, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rea Robinson,                                             May 13, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-EM-2742
              v.                                                Appeal from the Lake Superior
                                                                Court
      Radley Robinson,                                          The Honorable Calvin D.
      Appellee-Plaintiff.                                       Hawkins, Judge
                                                                Trial Court Cause No.
                                                                45D02-1704-EM-9



      Najam, Judge.


                                        Statement of the Case
[1]   Radley Robinson filed a complaint for declaratory judgment against his sister

      Rea Robinson seeking to enforce a transfer on death deed executed by their

      mother, Miriana Robinson. After she had executed the transfer on death deed,

      Miriana executed and delivered a quitclaim deed transferring title in her home

      Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                                  Page 1 of 14
      to Rea. After Miriana’s death, Rea claimed sole title to the real estate. The

      trial court entered summary judgment in favor of Radley and concluded that,

      under the transfer on death deed, Radley and Rea owned Miriana’s home as

      tenants in common.


[2]   Rea appeals the trial court’s grant of summary judgment for Radley, and she

      presents two issues for our review:


              1.       Whether the trial court abused its discretion when it struck
                       two affidavits Rea had designated on summary judgment.

              2.       Whether the trial court erred when it denied her motion
                       for summary judgment and entered summary judgment for
                       Radley.


[3]   We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[4]   On October 24, 2014, Miriana Robinson executed a transfer on death deed

      (“TOD deed”) whereby her fee simple title in her residence in Munster (“the

      real estate”) would transfer to her children Rea and Radley as tenants in

      common upon Miriana’s death. That TOD deed was recorded on November

      12. Nearly two years later, on October 5, 2016, Miriana executed and delivered

      a quitclaim deed transferring her interest in the real estate to Rea, effective

      immediately. The quitclaim deed was not recorded before Miriana’s death on

      November 18. Rather, Rea recorded the quitclaim deed on December 27.




      Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019            Page 2 of 14
[5]   On April 6, 2017, Radley filed a complaint seeking a declaratory judgment that

      “the beneficiary designations in the Robinson TOD Deed were not revoked”

      and that, “upon Miriana Robinson’s death, [the real estate] was transferred to

      [Rea and Radley] as tenants in common.” Appellant’s App. Vol. II at 16. In

      June 2018, Radley moved for summary judgment. Rea filed a cross-motion for

      summary judgment. Following a hearing, the trial court denied Rea’s motion

      and granted Radley’s motion for summary judgment. This appeal ensued.


                                      Discussion and Decision
                                Issue One: Motion to Strike Affidavits

[6]   Rea first contends that the trial court abused its discretion when it granted

      Radley’s motion to strike two affidavits that Rea had designated as evidence on

      summary judgment. The trial court has broad discretion in ruling on the

      admissibility of evidence. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct.

      App. 2005). And “[t]his discretion extends to rulings on motions to strike

      affidavits on the grounds that they fail to comply with the summary judgment

      rules.” Id. An abuse of discretion occurs when the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances of the case, or

      if it misinterprets the law. Lytle v. Ford Motor Co., 814 N.E.2d 301, 315 (Ind. Ct.

      App. 2004), trans. denied. Evidentiary material used in association with a

      motion for summary judgment must set forth only information that would be

      admissible at trial. Id. (citing Ind. Trial Rule 56(E)).




      Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019          Page 3 of 14
[7]   In support of her summary judgment motion, Rea designated as evidence two

      affidavits: one executed by her and a second executed by a family friend, Chris

      Bonefacic. Those affidavits included the affiants’ impressions of Miriana’s

      feelings with respect to certain events involving Radley as well as Miriana’s

      reasons for executing the quitclaim deed and for changing her will to exclude

      Radley. In his motion to strike the affidavits, Radley asserted in relevant part

      that the affidavits were irrelevant and, therefore, inadmissible under Indiana

      Evidence Rule 401.


[8]   We agree with Radley that the relevant facts underlying the summary judgment

      in his favor are not in dispute, and the issue on summary judgment presents a

      pure question of law. The parties agree that: Miriana executed and recorded a

      TOD deed; Miriana then executed and delivered, but did not record, a

      quitclaim deed; and the only recorded deed at the time of Miriana’s death was

      the TOD deed. The sole issue on summary judgment was whether Miriana’s

      residence belonged to Rea and Radley under the TOD deed or to Rea under the

      quitclaim deed. Nothing in the two affidavits proffered by Rea on summary

      judgment was relevant to a resolution of that question. Accordingly, the trial

      court did not abuse its discretion when it struck the affidavits.


                                     Issue Two: Summary Judgment

[9]   Rea next contends that the trial court erred when it denied her summary

      judgment motion and granted Radley’s summary judgment motion. Our

      standard of review is clear. The Indiana Supreme Court has explained that



      Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019         Page 4 of 14
               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).

               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley). Our standard of review is not altered by cross

       motions for summary judgment. Clem v. Watts, 27 N.E.3d 789, 791 (Ind. Ct.

       App. 2015).


[10]   Where, as here, the relevant facts are not in dispute and the interpretation of

       statutes is at issue, such statutory interpretation presents a pure question of law


       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019           Page 5 of 14
       for which summary judgment disposition is appropriate. Id. The first step in

       interpreting a statute is to determine whether the legislature has spoken clearly

       and unambiguously on the point in question. Id. When a statute is clear and

       unambiguous, we need not apply any rules of construction other than to require

       that the words and phrases be taken in their plain, ordinary, and usual sense.

       Id. Clear and unambiguous statutes leave no room for judicial construction. Id.


[11]   On appeal, Rea maintains, and Radley agrees, that the “legal effect of the

       [quitclaim deed] is determinative of the pending question of law.” Appellant’s

       Br. at 19. Rea asserts that the quitclaim deed “divest[ed]” Miriana “of all

       interest in the Real Estate such that the TOD Deed became a nullity and

       extinguished Radley’s beneficiary claims thereunder.” Id. at 20. But Radley

       maintains that, under the Transfer on Death Property Act (“the Act”), because

       Rea had not yet recorded the quitclaim deed at the time of Miriana’s death, the

       TOD deed had not been revoked and the TOD deed controlled.


[12]   Several provisions of the Act are relevant here. Indiana Code Section 32-17-14-

       3 (2018) provides in relevant part:


               The following definitions apply throughout this chapter:

                                                        ***

                        (11) “Property” means any present or future interest in
                        real property, intangible personal property, or tangible
                        personal property. . . .




       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019            Page 6 of 14
(Emphasis added.) Indiana Code Section 32-17-14-11 provides in relevant part:


        (a) A transfer on death deed transfers the interest provided to the
        beneficiary if the transfer on death deed is:

                 (1) executed by the owner or owner’s legal
                 representative; and

                 (2) recorded with the recorder of deeds in the county
                 in which the real property is situated before the death
                 of the owner.


(Emphasis added.) Indiana Code Section 32-17-14-16 provides in relevant part:


        (a) A beneficiary designation may be revoked or changed during
        the lifetime of the owner.

                                                 ***

        (f) A revocation or change in a beneficiary designation must
        comply with the terms of any governing instrument, this chapter,
        and any other applicable law.

                                                 ***

        (h) A transfer during the owner’s lifetime of the owner’s interest in the
        property, with or without consideration, terminates the beneficiary
        designation with respect to the property transferred.

                                                 ***

        (j) An owner may revoke a beneficiary designation made in a
        transfer on death deed by executing and recording before the death
        of the owner with the recorder of deeds in the county in which the
        real property is situated either:


Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                    Page 7 of 14
                        (1) a subsequent deed of conveyance revoking,
                        omitting, or changing the beneficiary designation; or

                        (2) an affidavit acknowledged or proved under IC 32-
                        21-2-3 that revokes or changes the beneficiary
                        designation.

       (Emphasis added.) And Indiana Code Section 32-17-14-19(a) provides:


               A beneficiary of a transfer on death transfer takes the owner’s interest in
               the property at the death of the owner subject to all conveyances,
               assignments, contracts, set offs, licenses, easements, liens, and
               security interests made by the owner or to which the owner was
               subject during the owner’s lifetime.


       (Emphasis added.)


[13]   The parties agree that these statutes are unambiguous. The parties disagree,

       however, regarding which statutes control here. Our courts have not yet had an

       opportunity to interpret these statutes under the Act, so we are presented with

       an issue of first impression. While we are not bound by decisions from foreign

       jurisdictions, it is appropriate to look to the decisions of other jurisdictions that

       interpret statutory language that is identical or of similar import. Steiner v. State,

       763 N.E.2d 1024, 1027 (Ind. Ct. App. 2002), trans. denied.


[14]   In Sheils v. Wright, the Court of Appeals of Kansas addressed the same issue

       presented here and, interpreting statutes substantively similar to Indiana’s, held

       that a quitclaim deed executed and delivered during the grantor’s lifetime left

       nothing to transfer under a TOD deed on his death. 357 P.3d 294 (Kan. Ct.

       App. 2015). In Sheils, Richard executed and recorded a TOD deed to his house
       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                      Page 8 of 14
       naming as beneficiary his brother Charles. Three years later, Richard executed

       a quitclaim deed transferring the house to himself and to his nephew Kevin as

       joint tenants with the right of survivorship. The quitclaim deed was not

       recorded at the time of Richard’s death a few months later. Charles filed suit to

       enforce the TOD deed, and the trial court granted summary judgment to

       Charles.


[15]   On appeal, the Court of Appeals of Kansas observed that the relevant statute

       required that a revocation of a TOD deed be recorded during the owner’s

       lifetime and, because the owner had not recorded the quitclaim deed, “the

       [TOD] deed remained in effect at Richard’s death.” 357 P.3d at 295. However,

       the court went on to consider whether “any property remain[ed] to be

       transferred” under the TOD deed at the time Richard died. Id. at 295-96. The

       court stated that, by statute, beneficiaries of a TOD deed “take their interest

       subject to all conveyances the owner may yet make during his or her lifetime.” Id.

       at 296 (citing K.S.A. 59-3504(b); emphasis original). And the court held that,

       “[s]ince Richard conveyed all of the property away during Richard’s lifetime,

       there was nothing to transfer on his death via the [TOD] deed.” Id. Finally, the

       court acknowledged that the lifetime transfer was effective even though the

       deed was not recorded before Richard’s death. Id.


[16]   Likewise, Indiana Code Section 32-17-14-19(a) provides that a TOD deed

       beneficiary “takes the owner’s interest in the property at the death of the owner

       subject to all conveyances . . . made by the owner . . . during the owner’s

       lifetime.” Thus, here, the quitclaim deed left no interest in the property to

       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019          Page 9 of 14
       transfer on Miriana’s death via the TOD deed. As a matter of law, Radley’s

       contingent interest in the real estate was extinguished before Miriana’s death.


[17]   In addition, Indiana Code Section 32-17-14-16(h) provides that the transfer

       during the owner’s lifetime of the owner’s interest in the property “terminates”

       a beneficiary designation in a TOD deed. Radley contends that Section 16(h)

       does not apply here because, he maintains, the “specific provisions of

       subsection 16(j) of the Act override the general provisions of subsection 16(h)

       when real estate is involved[.]” 1 Appellee’s Br. at 16. Radley is incorrect for

       two reasons. First, the definition of “property” under Indiana Code Section 32-

       17-14-3 includes “any present or future interest in real property.” (Emphasis

       added.) Section 16(h) specifically refers to a transfer made “during the owner’s

       lifetime of the owner’s interest in the property,” and, thus, it specifically applies

       to the transfer of Miriana’s interest in the real estate by quitclaim deed to Rea.

       Second, while Section 16(j) provides that an owner “may revoke” a beneficiary

       designation in the manner prescribed therein, Section 16(h) provides that the

       inter vivos transfer of an owner’s interest in the property “terminates” a

       beneficiary designation. (Emphases added.) Thus, Section 16(j) applies where

       an owner affirmatively revokes a beneficiary designation by a subsequent

       conveyance, which must be recorded to be valid, and 16(h) applies by operation




       1
         We note that we disregard the affidavit submitted by Radley from an attorney who participated in the
       drafting of the Act. As we have stated, “[i]n interpreting statutes, we do not impute the opinions of one
       legislator, even a bill’s sponsor, to the entire legislature unless those views find statutory expression.” Utility
       Ctr., Inc. v. City of Ft. Wayne, 868 N.E.2d 453, 459 (Ind. 2007).

       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                                      Page 10 of 14
       of law where, as here, an owner transfers her interest in the property by an inter

       vivos conveyance.


[18]   Here, there is no evidence that Miriana sought to revoke the beneficiary

       designation in the TOD deed under Section 16(j). Rather, Miriana quitclaimed

       the real estate to Rea, which in its operation and effect terminated the

       beneficiary designation under Section 16(h). And, unlike Section 16(j), there is

       no recording requirement under Section 16(h). Accordingly, Radley’s

       contentions on this issue are without merit.


[19]   In sum, the undisputed evidence shows that the quitclaim deed was a valid and

       immediate transfer of the real estate to Rea under Indiana Code Section 32-21-

       1-15. 2 Accordingly, we hold that, under Indiana Code Section 32-17-14-19(a),

       there was no property interest to transfer on Miriana’s death via the TOD deed

       and that, under Indiana Code Section 32-17-14-16(h), the unrecorded quitclaim

       deed executed and delivered during Miriana’s lifetime terminated the

       beneficiary designation of the TOD deed “with respect to the property

       transferred.” We reverse and remand and instruct the trial court to grant Rea’s

       summary judgment motion.




       2
         We reject Radley’s contention that the quitclaim deed did not effect a transfer of the real estate because it
       was not recorded. As a general rule, a party to a deed is bound by the instrument whether or not it is
       recorded. See Book v. Hester, 695 N.E.2d 597, 600 (Ind. Ct. App. 1998). And, in any event, Radley concedes
       that the quitclaim deed “does, on its face, comply with” Indiana Code Section 32-21-1-15. Appellee’s Br. at
       23.

       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                                  Page 11 of 14
[20]   Affirmed in part, reversed in part, and remanded with instructions.


       Robb, J., concurs.


       Baker, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019      Page 12 of 14
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Rea Robinson,                                             Court of Appeals Case No.
                                                                 18A-EM-2742
       Appellant-Defendant,

               v.

       Radley Robinson,
       Appellee-Plaintiff




       Baker, Judge, concurring.


[21]   I fully concur with the majority opinion. I write separately to note the reason I

       believe Indiana Code section 32-17-14-16(j) does not apply to this case. Under

       that section,


               (j)      An owner may revoke a beneficiary designation made in a
                        transfer on death deed by executing and recording before
                        the death of the owner with the recorder of deeds in the
                        county in which the real property is situated either:

                        (1)     a subsequent deed of conveyance revoking,
                                omitting, or changing the beneficiary designation;
                                or

       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019                      Page 13 of 14
                        (2)     an affidavit acknowledged or proved under IC 32-
                                21-2-3 that revokes or changes the beneficiary
                                designation.


[22]   This section applies to circumstances in which the property owner intends to

       revoke or omit the beneficiary designation, leaving no beneficiary of a transfer

       on death, or to change the identity of the beneficiary altogether. Here, that is

       not what happened. Miriana did not intend to revoke the beneficiary

       designation or change the identity of the beneficiary. Instead, Miriana

       quitclaimed her interest to Rea, meaning that she divested herself of her

       interest, retaining no interest to be transferred upon her death. Therefore, the

       situation contemplated by subsection -16(j) does not apply here and there was

       no requirement that Miriana record a subsequent deed of conveyance or an

       affidavit. I agree with the majority that the conveyance of the quitclaim deed to

       Rea terminated Radley’s interest under the TOD deed.




       Court of Appeals of Indiana | Opinion 18A-EM-2742 | May 13, 2019            Page 14 of 14
