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Underwood v. Bunger

Supreme Court of Indiana

March 6, 2017

Cheryl L. Underwood, Appellant (Plaintiff),
Thomas Bunger, in his capacity as the personal representative of the estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming, Appellees (Defendants).

         Appeal from the Monroe Circuit Court, No. 53C01-1504-MI-657 The Honorable E. Michael Hoff, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-1509-MI-1305

          ATTORNEY FOR APPELLANT Arend J. Abel Cohen & Malad, LLP Indianapolis, Indiana.


          Slaughter, Justice.

         Indiana has a longstanding legal presumption, recognized by statute and at common law, that spouses owning real property hold their interests as tenants by the entirety. This presumption, which is rebuttable upon a showing the parties intended another form of ownership, applies even if the couple owns the property with one or more additional parties. We hold this presumption is rebutted on the record before us. The deed conveying the property specifies that the three grantees, two of whom are married, shall take the property "all as Tenants-in-Common". We reverse and remand with instructions.

         Factual and Procedural Background

         On July 25, 2002, the owner of real property located near the Indiana University campus in Bloomington (Property) executed a warranty deed (Deed) to three grantees: Cheryl Underwood, Kenneth Kinney, and Judith Fulford. Kinney (Husband), now deceased, and Fulford (Wife) were married when the Property was conveyed and remained married at Husband's death. The Deed's granting clause provides as follows:

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: [Legal Description Omitted]

         A dozen years later, in a separate case in June 2014, the Monroe Circuit Court entered a six-figure damages judgment against Husband and Underwood, and in favor of Sheree Demming, Underwood's former employer. The judgment for Demming was affirmed on appeal, Bunger v. Demming, 40 N.E.3d 887 (Ind.Ct.App. 2015), trans. denied. The Demming Judgment became a lien on the Property. Husband subsequently died in November 2014; his estate is represented here by Thomas Bunger, the personal representative.

         In April 2015, Underwood filed this action, asking the court to partition and sell the Property and distribute the proceeds. Underwood argues that she, Husband, and Wife all owned the Property as tenants in common and says she no longer wants to own the Property in common with Wife and Husband's Estate. Bunger, on behalf of the Estate, moved to dismiss Underwood's petition under Trial Rule 12(B)(6), arguing her claim fails because it presupposes the Estate has an interest in the Property. Demming moved for summary judgment, likewise arguing the Estate has no interest in the Property, and that she has a valid, enforceable lien against Underwood's interest.

         The trial court agreed with the Estate and Demming and granted their respective motions. The court found the Deed to be "clear and unambiguous" in creating "an estate by the entireties as to the interest of" Husband and Wife. It also found the marital unit-and then Wife herself (after Husband died)-was a tenant in common with Underwood. Based on these findings, the court held that the judgment lien created by the Demming Judgment did not attach to the share of the real estate now owned by Wife because the judgment was entered against only Husband. Thus, the court concluded that Demming's lien applied against Underwood's one-half interest in the Property but not Wife's interest. The court entered a partial final judgment under Trial Rule 54(B), from which Underwood appealed.

         The Court of Appeals affirmed. Underwood v. Bunger, 52 N.E.3d 829 (Ind.Ct.App. 2016), reh'g denied. It, too, rejected Underwood's argument, concluding that "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." Id. at 833 (citations omitted). Based on this determination, the Court held that Husband's interest in the Property passed directly to Wife upon his death and not to his Estate. Underwood sought transfer, which we now grant and reverse.

         Standard of Review

         The interpretation of a written instrument, including a deed, is generally a question of law we review de novo. Corn v. Corn, 24 N.E.3d 987, 994 (Ind.Ct.App. 2015), trans. denied. See also Brown v. Penn Cent. Corp., 510 N.E.2d 641, 643 (Ind. 1987). In construing a deed, we read it as a whole, determining "the parties' intent by the unambiguous language they used, presuming they intended each part to have meaning." Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 256 (Ind. 2013) (citation omitted).

         Discussion ...

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