ATTORNEYS FOR APPELLANT Tammy L. Ortman Jennifer S. Ortman
Lewis & Kappes, P.C. Indianapolis, Indiana
ATTORNEY FOR APPELLEE Michael D. Dobosz Hilbrich Cunningham
Dobosz & Sandoval, LLP Highland, Indiana
from the Lake Superior Court The Honorable Calvin D. Hawkins,
Judge Trial Court Cause No. 45D02-1704-EM-9
of the Case
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 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.
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.
We affirm in part, reverse in part, and remand with
and Procedural History
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.
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.
One: Motion to Strike Affidavits
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)).
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.
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