MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jun 26 2018, 8:35 am
regarded as precedent or cited before any
                                                                                   CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Daniel L. Lauer                                          Daniel J. Borgmann
Stucky, Lauer & Young, LLP                               Helmke Beams, LLP
Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Levendoski,                                      June 26, 2018
Karen Levendoski, and                                    Court of Appeals Case No.
Kathleen (Jensema) Gross,                                18A-PL-360
Appellants-Plaintiffs,                                   Appeal from the Allen Superior
                                                         Court
        v.                                               The Honorable Nancy E. Boyer,
                                                         Judge
Stanley Stevens,                                         Trial Court Cause No.
Appellee-Defendant                                       02D01-1703-PL-119




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                           Page 1 of 16
[1]   Stephen Levendoski, Karen Levendoski, and Kathleen Gross (collectively, the

      Levendoski Children) appeal the trial court’s order granting summary judgment

      in favor of Stanley Stevens (Stanley) on the Levendoski Children’s complaint

      for the partition and sale of property owned by Stanley and Sarah Levendoski

      (Sarah) at the time of her death. The Levendoski Children argue that the trial

      court erred by denying their motions to strike insufficient defense and

      designated evidence and by granting summary judgment in Stanley’s favor.

      Finding no error, we affirm.


                                                     Facts
[2]   Sarah died on March 30, 2008, from mesothelioma complications. She was

      survived by her husband, Stanley, and the Levendoski Children, who were the

      product of a prior marriage.


[3]   In August 2001, Stanley and Sarah acquired title to a residence (Wood Moor)

      as tenants in common, as they had not yet married at that time. In June 2002,

      Stanley and Sarah were married, but never converted their interest in Wood

      Moor to something other than a tenancy in common.


[4]   Sarah’s will was executed prior to her marriage to Stanley and named the

      Levendoski Children as her sole devisees and legatees. At the time of her

      death, her one-half undivided interest in Wood Moor passed to the Levendoski

      Children, but they were unaware that the property was owned as a tenancy in

      common so they did not realize that they held that interest. In May 2008,

      Stephen probated Sarah’s will but did not seek estate administration because

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 2 of 16
      her estate was less than the statutory threshold of $50,000. In his closing

      statement, Stephen stated that there were no debts, liens, or encumbrances

      against any of Sarah’s assets, but in fact, her funeral cost approximately $8,000

      and she owed Home Depot approximately $16,000. Stanley paid these debts.

      If Sarah’s estate had covered those costs, it would have been worthless and the

      Levendoski Children would have taken nothing, as the value of Sarah’s

      remaining assets totaled approximately $15,000.


[5]   Wood Moor remained vacant from the time of Sarah’s death to the spring of

      2009, when Stanley began to rent it out through an agent. Stanley has

      continued to pay all obligations related to the property, including mortgage

      payments, real estate taxes, insurance, repairs, and utilities.


[6]   Sometime after Sarah’s death, Stanley saw a television ad for a law firm

      handling class action mesothelioma claims. Stanley called the firm, which also

      communicated with Stephen. Ultimately, the family received a settlement

      totaling approximately $160,000.1


[7]   The Levendoski Children and Stanley opened a new estate for Sarah and, in

      November 2012, signed a Family Settlement Agreement (the Agreement)

      regarding the distribution of the settlement. The Agreement provided that each

      person would receive 25% of the settlement proceeds. In exchange, Stanley




      1
        There are discrepancies in the record as to the value of the settlement, but its precise value is irrelevant for
      the purposes of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                           Page 3 of 16
      waived any entitlement to reimbursement for his payment of Sarah’s funeral

      expenses and debts, as well as the rights to seek a statutory allowance, one-third

      interest in Sarah’s personal property, or to elect to take against her will. The

      Levendoski Children, in turn, “hereby forever waive any rights that they may

      have individually or collectively to claim any of the decedent’s property that is

      in the possession of the Surviving Spouse at the time of the execution of this

      Agreement.” Appellants’ App. Vol. III p. 75. The Agreement, which was

      approved by a trial court in November 2012, is explicitly intended “to

      compromise and settle all claims, controversies, and disputes existing between

      or among them in any way arising out of or related to the estate of the

      Decedent.” Id.


[8]   At some point after the Agreement was executed, Stanley learned the

      significance of the term “tenants in common” when he attempted to remove

      Sarah’s name from the Wood Moor real estate tax bill. Subsequently, he

      contacted Stephen regarding financial assistance for repairs to the property.

      Stephen declined and, on March 21, 2017, the Levendoski Children filed a

      petition for the partition and sale of Wood Moor.


[9]   On September 8, 2017, Stanley filed a motion to dismiss and/or for summary

      judgment. The same day, the Levendoski Children filed a cross-motion for

      summary judgment. On September 29, 2017, the Levendoski Children filed a

      motion to strike Stanley’s designated evidence and a motion to strike his

      defense of waiver as insufficient because it had not been pleaded in his original



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 4 of 16
       answer. On October 2, 2017, Stanley filed a motion for leave to file an

       amended answer.


[10]   On October 11, 2017, the trial court held a hearing on all pending motions. At

       the beginning of the hearing, the trial court granted Stanley’s motion for leave

       to file an amended answer and denied the Levendoski Children’s motion to

       strike insufficient defense. The trial court then offered counsel two options:

       either (1) having argument regarding the remaining motion to strike, which

       would require rescheduling the summary judgment argument; or (2) taking the

       motion to strike under advisement and proceeding as planned with the

       summary judgment argument. Counsel for both parties agreed to the second

       option, and the trial court then heard argument on the competing summary

       judgment motions.


[11]   On January 18, 2018, the trial court entered summary judgment in favor of

       Stanley, summarily denied the Levendoski Children’s motion to strike Stanley’s

       designated evidence, and found all other pending motions were moot. In

       relevant part, the trial court found as follows:


               . . . As a result of the execution of the Family Settlement
               Agreement, the Levendoskis have no interest in [Wood Moor]
               and lack standing to bring this action.


               The Levendoskis contend they could not have given up their
               claim in the one-half (1/2) interest of the Wood Moor property
               because they did not know it existed at the time they signed the
               Family Settlement Agreement.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 5 of 16
                                                 ***


        The Warranty Deed vesting the Wood Moor property in
        Stan[ley] and Sarah was duly recorded on September 10, 2001.
        As such, it was notice to the world of Stan[ley] and Sarah’s
        ownership interests. The Deed was properly acknowledged and
        placed in the record as required by statute.


        The Levendoskis have not sought to set aside the Family
        Settlement Agreement on the basis of fraud. It appears that the
        Levendoskis desire to not only retain all the benefits they reaped
        under the Family Settlement Agreement, but also to now claim
        an interest in the Wood Moor property. Apparently, the
        Levendoskis desire to retain the original $15,751.26 estate assets,
        which they divided amongst the three (3) of them. They do not
        recognize an obligation to reimburse Stan[ley] for the funeral or
        debt payments made by him. . . .


        The Family Settlement Agreement was approved by the Court on
        November 27, 2012. It is a valid and binding agreement, to
        which all of the “Heirs at Law” compromised and settled any
        and all disputes or claims. As a result, the Levendoskis have no
        interest in the Wood Moor property. Since the Levendoskis are
        not owners of an undivided one-half (1/2) interest in [Wood
        Moor], they are not entitled to a partition and/or sale of [Wood
        Moor].


Appealed Order p. 9-11. The Levendoski Children now appeal.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 6 of 16
                                        Discussion and Decision
                                    I. Non-Dispositive Motions
[12]   The Levendoski Children first argue that the trial court erroneously denied their

       motions to strike designated evidence and to strike insufficient defense. 2

       Indiana Trial Rule 12(F) provides that when a party files a motion to strike,

       “the court may order stricken from any pleading any insufficient claim or

       defense or any redundant, immaterial, impertinent or scandalous matter.”

       Ruling on a motion to strike is a matter within the trial court’s discretion, and

       we will reverse only if the decision is clearly against the logic and effect of the

       facts and circumstances before it. Allstate Ins. Co. v. Hatfield, 28 N.E.3d 247, 248

       (Ind. Ct. App. 2015).


                      A. Motion to Strike Designated Evidence
[13]   The basis of the Levendoski Children’s motion to strike Stanley’s designated

       evidence was a contention that much of the designated evidence supporting

       Stanley’s summary judgment motion and response to their summary judgment




       2
        Stanley asserted multiple affirmative defenses, which the Levendoski Children insist are improper. They
       contend that the trial court should have ruled in their favor on these affirmative defenses. Stanley conceded
       below that he was not entitled to relief based on these affirmative defenses, nor did the trial court grant relief
       on this basis. Therefore, we need not and will not consider this argument.
       The Levendoski Children also argue that many of the trial court’s findings of fact are “contested, irrelevant
       and immaterial.” Appellants’ Br. p. 11. As the key facts underlying the trial court’s order are undisputed and
       the allegedly irrelevant and immaterial findings did not contribute to the trial court’s judgment, we find that
       any error was harmless and decline to consider the argument in greater detail.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                          Page 7 of 16
       motion was immaterial and non-specific.3 Indeed, a party seeking or opposing

       summary judgment must designate its evidence with sufficient specificity.

       Duncan v. M & M Auto Serv., Inc., 898 N.E.2d 338, 341 (Ind. Ct. App. 2008).

       Designating evidentiary materials in their entirety fails to meet the specificity

       requirement. Id.


[14]   Here, the Levendoski Children note that Stanley designated twenty-three items

       in support of his summary judgment motion and contend that his “designation

       of evidence contained everything but the proverbial ‘kitchen sink.’ By way of

       example, Stanley’s entire 122 page deposition was designated with the

       exception of only twelve (12) pages and page and line number references were

       omitted.” Appellants’ Br. p. 11 (internal citation omitted).


[15]   Stanley concedes that he could have done a better job of reducing the amount of

       materials he submitted as designated evidence. We agree. We also agree with

       Stanley, however, that there is no specific form by which a party is required to

       designate evidence and that, while he may have been over-inclusive, the trial

       court concluded that it was sufficiently able to read and understand the salient




       3
         Stanley argues that the Levendoski Children have waived this argument by agreeing to let the trial court
       take the issue under advisement while the parties presented their summary judgment arguments. We do not
       find that agreeing to let the matter taken under advisement amounts to a waiver of a right to challenge the
       trial court’s later ruling on the issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                    Page 8 of 16
       portions of the evidence. We decline to second-guess the trial court in this

       regard.4


                       B. Motion to Strike Insufficient Defense
[16]   Next, the Levendoski Children contend that the trial court should have granted

       their motion to strike insufficient defense. This motion was premised on the

       fact that Stanley did not include the affirmative defense of waiver in his original

       answer. See Ind. Trial Rule 8(C) (requiring that affirmative defenses must be

       pleaded in the answer). In response to the motion, Stanley sought, and the trial

       court granted, leave to file an amended answer containing the waiver defense.


[17]   The Levendoski Children do not argue that the trial court erred by permitting

       Stanley to amend his answer, nor do we find any error. Indiana Trial Rule

       15(A) provides that, under these circumstances, a party may amend his

       pleading by leave of course, and “leave shall be given when justice so requires.”

       Here, the Levendoski Children were well aware of the existence of the

       Agreement and that Stanley was raising a waiver defense; therefore, they were

       not prejudiced by the amendment of his answer. Moreover, the amendment

       occurred before the matter had even been set for trial, meaning that even if it

       caught them by surprise, they would have had plenty of time to prepare to




       4
         Moreover, in ruling in favor of Stanley, the trial court relied primarily on undeniably relevant portions of
       the evidence—primarily the Agreement itself. Therefore, even if the trial court had granted the motion to
       strike, the salient evidence would have remained in the record and the result would have been the same.
       Thus, any error was harmless.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                        Page 9 of 16
       respond to it. Under these circumstances, the trial court did not err by

       permitting Stanley to amend his answer. And once the amendment occurred,

       the waiver defense was no longer insufficient, meaning that the trial court

       properly granted the motion to strike.


                                     II. Summary Judgment
[18]   Finally, the Levendoski Children contend that the trial court should have

       denied Stanley’s summary judgment motion and instead granted theirs. Our

       standard of review on summary judgment is well settled:


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
               Once these two requirements are met by the moving party, the
               burden then shifts to the non-moving party to show the existence
               of a genuine issue by setting forth specifically designated
               facts. Id. Any doubt as to any facts or inferences to be drawn
               therefrom must be resolved in favor of the non-moving
               party. Id. Summary judgment should be granted only if the
               evidence sanctioned by Indiana Trial Rule 56(C) shows there is
               no genuine issue of material fact and that the moving party
               deserves judgment as a matter of law. Freidline v. Shelby Ins.
               Co., 774 N.E.2d 37, 39 (Ind. 2002).


       Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[19]   It is undisputed that at the time of Sarah’s death, she and Stanley held title to

       Wood Moor as tenants in common. A tenancy in common




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 10 of 16
               is property held by two or more persons by several and distinct
               titles. Tenants in common are united only by their right to
               possession of the property. The rights and interests of tenants in
               common are several, and there is no unity of title between them.


       Windell v. Miller, 687 N.E.2d 585, 588 (Ind. Ct. App. 1997). Unlike other types

       of ownership, such as joint tenancy, there is no right of survivorship for tenants

       in common. E.g., Trust Agreement of Westervelt v. First Interstate Bank of N. Ind.,

       551 N.E.2d 1180, 1181 (Ind. Ct. App. 1990); Robison v. Fickle, 167 Ind. App.

       651, 665, 340 N.E.2d 824, 833 (Ind. Ct. App. 1976). Therefore, when Sarah

       died, her interest in Wood Moor passed onto her children, who were her sole

       devisees and legatees, rather than to Stanley.


       A. Does Agreement Language Encompass Wood Moor?
[20]   The primary question we must answer is this: did the Levendoski Children

       waive their interest in Wood Moor when they executed the Agreement? First,

       we must consider whether the Agreement waiver language encompassed their

       interest in Wood Moor. An agreement for division of property is an ordinary

       contract, and we therefore interpret such an agreement using ordinary contract

       principles. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). Interpretation

       of a contract is a pure question of law to which we apply a de novo standard of

       review. Cruisin’, Inc. v. Springleaf Fin. Servs. of Ind., 12 N.E.3d 889, 894 (Ind. Ct.

       App. 2014). The paramount goal of any contract interpretation is to determine

       and effectuate the intent of the parties when they made the agreement. Johnson,

       920 N.E.2d at 256. If a contract’s terms are clear and unambiguous, courts


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 11 of 16
       must give those terms their clear and ordinary meaning. Cruisin’, 12 N.E.3d at

       894. When the language of a contract is unambiguous, the intent of the parties

       is determined from within the four corners of the instrument. Univ. of S. Ind.

       Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006).


[21]   Here, the Agreement notes that the subsequent estate was opened to administer

       the mesothelioma settlement proceeds. Appellants’ App. Vol. III p. 73. It also

       provides that it is binding on both Stanley and the Levendoski Children. Id. at

       74. The Agreement also contains the following relevant provisions:


                  3.      The “Heirs at Law”[5] agree that all personal property in
                          which the Decedent had an ownership or possessory
                          interest at the time of her death already has been shared
                          out among them. Therefore, the Heirs at Law agree that
                          all property in the possession of the Surviving Spouse at
                          the time of the execution of this Agreement is and shall
                          remain his sole property and all property in possession of
                          the Decedent’s Children is and shall remain their sole
                          property.


                  4.      Settlement of Surviving Spouse’s Interest. The Decedent’s
                          Surviving Spouse hereby forever waives any entitlement
                          that he may have under Indiana law to the following:


                          •       Reimbursement for the payment of any funeral expenses;
                          •       Reimbursement for any of the decedent’s debts that he may
                                  have settled after her death;




       5
           The “Heirs at Law” included Stanley and the Levendoski Children. Appellants’ App. Vol. III p. 74.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                   Page 12 of 16
                        •      The right to receive a Statutory Allowance in the sum of
                               Twenty-Five Thousand Dollars ($25,000) pursuant to the
                               provisions of IC § 29-1-4-1;
                        •      The right to a one-third (1/3) interest in the decedent’s
                               personal property under IC § 29-1-2-1; and,
                        •      The right to elect to take against decedent’s will pursuant to
                               IC § 29-1-3-1.

               5.       Settlement of Decedent’s Childrens’ Interests. The
                        Decedent’s Children hereby forever waive any rights that
                        they may have individually or collectively to claim any of
                        the decedent’s property that is in the possession of the
                        Surviving Spouse at the time of the execution of this
                        Agreement.


                                                        ***


               7.       Settlement of All Matters. The “Heirs at Law” intend
                        hereby to compromise and settle all claims, controversies,
                        and disputes existing between or among them in any way
                        arising out of or related to the estate of the Decedent. . . .


       Id. at 53.


[22]   The Levendoski Children argue, essentially, that the purpose of the Agreement

       was to disburse the settlement proceeds and that the Agreement was not

       intended to resolve any issues related to real estate ownership. They also

       contend that, to the extent the above provisions waive their right to claim an

       interest in property, the property referenced in the Agreement was personal

       property, not real property.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 13 of 16
[23]   We disagree. While the catalyst for the subsequent estate and the Agreement

       may have been division of the settlement proceeds, it is apparent from the

       language above that, as part of their bargain, the parties intended to resolve all

       potential outstanding issues separate and apart from the settlement proceeds.

       To that end, the bargain they struck covered any possible remaining claims

       Stanley may have had, including those wholly unrelated to the settlement

       proceeds. Likewise, the bargain covered any possible remaining claims the

       Levendoski Children may have had to Sarah’s property in Stanley’s possession,

       including those wholly unrelated to the settlement proceeds.


[24]   The Levendoski Children insist that the references to “property” mean only

       personal property, rather than real property. We disagree, but even if we were

       to accept that contention as true, Paragraph 7 clearly states that the Agreement

       was intended “to compromise and settle all claims, controversies, and

       disputes . . . arising out of or related to the estate of the Decedent.” Id.

       (emphasis added). After examining the contract as a whole, we can only

       conclude that the Agreement language did, indeed, encompass Sarah’s interest

       in Wood Moor.


          B. Did Levendoski Children Waive Their Interest By
                      Executing the Agreement?
[25]   Having found that the Agreement language included real estate interests, we

       must determine whether, by executing the Agreement, the Levendoski Children

       waived their right to assert their interest in Wood Moor. It is undisputed that

       the Levendoski Children did not have actual knowledge of their interest in
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 14 of 16
       Wood Moor at the time they executed the Agreement.6 What we must

       determine, therefore, is whether they can be charged with the knowledge of

       their interest at the time they signed the Agreement.


[26]   “Constructive knowledge” is knowledge “that one using reasonable care or

       diligence should have, and therefore that is attributed by law to a given

       person . . . .” Black’s Law Dictionary 876 (7th ed. 1999). In other words,

       knowledge of some fact or event is sometimes imputed to a party who was

       negligent in failing to obtain such knowledge.


[27]   In this case, the Levendoski Children knew that Sarah and Stanley owned

       Wood Moor at the time of her death. They assumed, but did not verify, that

       Sarah and Stanley owned the property as joint tenants with right of

       survivorship. The title to the property was duly recorded. Therefore, had the

       Levendoski Children sought out that information, they would have easily

       procured it, learning in a timely fashion that Sarah’s interest as tenant in

       common had passed to them. It would be reasonable to conclude that at the

       time Stephen probated Sarah’s will, he should have undertaken this

       investigation. But he did not, nor did either of his siblings. In our view, had

       the Levendoski Children exercised reasonable care and diligence, they would

       have known of their interest in Wood Moor.




       6
           They do not allege that Stanley fraudulently concealed this information.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018   Page 15 of 16
[28]   Under these circumstances, we find that the trial court properly concluded that

       the Levendoski Children had constructive knowledge of their interest in Wood

       Moor at the time they executed the Agreement. As a result, when they

       executed the Agreement, they waived their interest in Wood Moor and had no

       right to seek partition and sale of that property.7 The trial court properly

       granted summary judgment in favor of Stanley.


[29]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       7
        Relevant to this case is the statute providing that a person may compel partition of land held in tenancy in
       common if that person holds an interest in the land. Ind. Code § 32-17-4-1(a)(1)(A).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-360 | June 26, 2018                     Page 16 of 16
