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).
from the Monroe Circuit Court, No. 53C01-1504-MI-657 The
Honorable E. Michael Hoff, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Arend J. Abel Cohen & Malad, LLP
ATTORNEY FOR APPELLEE THOMAS BUNGER, IN HIS CAPACITY AS THE
PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH K. KINNEY
Scott D. Pankow Indianapolis, 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.
and Procedural Background
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]
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.
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
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
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.
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).