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Underwood v. Fulford

Court of Appeals of Indiana

June 28, 2019

Cheryl Underwood, Appellant-Plaintiff,
v.
Judith M. Fulford; Thomas Bunger, in his capacity as the Personal Representative of the Estate of Kenneth K. Kinney; and Sheree Demming, Appellees-Defendants.

          Appeal from the Monroe Circuit Court The Honorable Elizabeth A. Cure, Judge Trial Court Cause Nos. 53C01-1504-MI-657 53C01-1603-PL-471 53C01-1711-ES-256

          ATTORNEY FOR APPELLANT Zachary J. Stock Indianapolis, Indiana

          ATTORNEY FOR APPELLEE, JUDITH M. FULFORD William J. Spalding Spalding Law LLC Bloomington, Indiana

          ATTORNEY FOR APPELLEE, THOMAS BUNGER Scott D. Pankow Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] This matter involves three consolidated cases initiated by Cheryl Underwood ("Underwood"): two claims against the Estate of Kenneth K. Kinney (the "Estate") seeking contribution for a partnership liability (collectively, the "Contribution Action"); a claim against the Estate for alleged fraudulent transfer of property (the "Fraudulent Transfer Action"); and a petition for sale and partition of the parties' jointly owned real estate (the "Partition Action"). Presently, Underwood appeals the trial court's judgment in favor of the Estate in the Contribution Action and Fraudulent Transfer Action and its retention of funds in the Partition Action. Specifically, Underwood argues that the trial court erred in concluding that she could not recover in the Contribution Action and Fraudulent Transfer Action because the Estate was entitled to both common-law and statutory indemnification for Underwood's wrongful conduct. She further argues that the trial court erred in retaining the proceeds ("Partition Proceeds") from the sale of the parties' jointly owned real estate (the "Partition Sale") even after determining the parties' respective ownership interests. Concluding that the trial court did not err in concluding that the Estate was entitled to indemnification but did err in retaining Underwood's and the Estate's shares of the Partition Proceeds, we affirm in part, reverse in part, and remand.

         [¶2] We affirm in part, reverse in part, and remand.

         Issues

         1. Whether the trial court clearly erred in entering judgment in favor of the Estate in the Contribution Action and Fraudulent Transfer Action.

         2. Whether the trial court clearly erred in retaining some of the Partition Proceeds after determining the parties' respective ownership interests.

         Facts

         [¶3] These parties come before our Court again following a lengthy factual and procedural history spanning nearly two decades. We have detailed this history in two previously published opinions (collectively, the "Demming Litigation"). See Demming v. Underwood, 943 N.E.2d 878, 882-83 (Ind.Ct.App. 2011), trans. denied; Demming v. Underwood, 40 N.E.3d 887, 891-93 (Ind.Ct.App. 2015). The parties have also been heard by our Supreme Court in a property-division matter (the "Partition Action") also relating to this matter. See Underwood v. Bunger, 70 N.E.3d 338, 340-42 (Ind. 2017). The following is a summary of facts pertinent to the issues Underwood presently appeals.

         [¶4] Sometime in 2002, Sheree Demming ("Demming") retained Underwood, a real estate broker, to help her purchase two properties on East Sixth Street in Bloomington, Indiana (the "Sixth Street Properties"). Instead of facilitating the sale to Demming, Underwood approached Kenneth Kinney ("Kinney") about purchasing the Sixth Street Properties as partners. ...


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