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Powell v. Estate of Powell

Court of Appeals of Indiana

July 3, 2014

G. KEVIN POWELL, Appellant,
v.
ESTATE OF GARY POWELL, Appellee

APPEAL FROM THE WASHINGTON CIRCUIT COURT. The Honorable Larry W. Medlock, Judge. Cause No. 88C01-1308-PL-500.

ATTORNEY FOR APPELLANT: MARK D. JOHNSON, Allen & Allen, Salem, Indiana.

ATTORNEY FOR APPELLEE: ANDREW WRIGHT, Andrew Wright, P.C., Salem, Indiana.

FRIEDLANDER, Judge. MATHIAS, J., and PYLE, J., concur.

OPINION

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

G. Kevin Powell (Kevin) appeals a grant of summary judgment in favor of the Estate of Gary Powell (the Estate), which determined that Kevin and the Estate were tenants in common and thus one-half owners of real estate (the Real Estate) conveyed to them by their father, Lawrence Powell. Kevin presents the following restated issues for review: Does a deed conveying property to brothers as tenants by the entireties create a joint tenancy with rights of survivorship, or instead a tenancy in common?

Page 47

We reverse and remand with instructions.

The relevant facts are not in dispute. On December 1, 1995, Lawrence Powell conveyed the Real Estate to his two sons, Kevin and Gary Powell (Gary) by means of a warranty deed. The relevant portion of the deed stated as follows: " This Indenture Witnesses that Lawrence H. Powell ... CONVEY AND WARRANT [sic] to G. Kevin Powell ... and Gary Lee Powell ..., as tenants by the entireties ..., the following described real estate in Washington County, State of Indiana ...[.]" Appellant's Appendix at 22. Gary died on March 2, 2013, and is survived by Kevin. On August 5, 2013, the Estate filed a complaint for declaratory judgment seeking a ruling that title to the Real Estate was held by Kevin and Gary as tenants in common and not as joint tenants with rights of survivorship. On August 26, 2013, Kevin filed a counterclaim asking for declaratory judgment to the effect that the deed created in the brothers a joint tenancy with right of survivorship, meaning that upon Gary's death, Kevin became the sole owner of the Real Estate. The trial court conducted a hearing, after which it entered the following conclusions of law and judgment:

1. That there is no intent other than to transfer real estate to Gary Powell and G. Kevin Powell that manifest itself from the four corners of the deed or from the tenor of the deed.
2. Lawrence H. Powell executed a Warranty Deed on December 1, 1995 transferring real property to brothers G. Kevin Powell and Gary L. Powell as " tenants by the entireties" [.]
3. That the cases cited by the [sic] G. Kevin Powell involved people who are husband and wife or posing as husband and wife and thus are distinguishable.
THEREFORE, the Plaintiff's motion for Summary Judgment is hereby GRANTED and the Defendant's Motion for Summary Judgment is hereby DENIED. G. Kevin Powell and The Estate of Gary Powell are hereby each granted one half of the Franklin Township, Washington County Indiana real estate as tenants in common.

Id. at 6.

Kevin challenges the trial court's ruling that the conveyance to him and his brother " by the entireties" was a nullity and that Lawrence Powell intended to convey the real estate to his sons as tenants in common. The question as to the legal effect of a conveyance of real estate by the entirety to two or more individuals who are not husband and wife is one of first impression in Indiana.

The question was presented in the present case in the form of a motion for summary judgment and a ruling thereon. Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact with respect to a particular issue or claim. Ind. Trial Rule 56(C); Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574 (Ind. 2013). We review a summary judgment order de novo. Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146 (Ind. 2013). Considering only the facts supported by 4 evidence designated by the parties, we must determine whether there is a " genuine issue as to any material fact" and whether " the moving party is entitled to a judgment as a matter of law." T.R. 56(C); see also Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009). Where the moving party designates material evidence demonstrating ...


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