Opinion
24A-ES-35
12-23-2024
In the Matter of the Supervised Estate of Drew A. Kogan, Deceased, Robert S. Evans, and Raymond J. Rudolph Jr., Appellants-Intervenors v. Warren T. Kogan, as Administrator of the Estate of Drew A. Kogan, Appellee-Interested Party In the Matter of the Drew Albert Kogan Trust, Robert S. Evans, and Raymond J. Rudolph Jr., Appellants-Defendants v. David R. Kogan, as Trustee of the Drew Albert Kogan Trust, Appellee-Plaintiff Warren T. Kogan, as Administrator of the Estate of Drew A. Kogan, Appellee-Counterclaim Defendant
Attorneys for Appellants Alexander P. Pinegar Roger L. Burrus Rachel Dever Church Church Hittle + Antrim Noblesville, Indiana Attorneys for Appellees Gregory A. Neibarger Jennifer A. Sacheck Charles E. Oswald Jessica L. Meek Dentons Bingham Greenebaum LLP Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Superior Court The Honorable Matthew Kincaid Trial Court Cause No. 06D01-2205-ES-000091 06D01-2206-TR-000003
Attorneys for Appellants Alexander P. Pinegar Roger L. Burrus Rachel Dever Church Church Hittle + Antrim Noblesville, Indiana
Attorneys for Appellees Gregory A. Neibarger Jennifer A. Sacheck Charles E. Oswald Jessica L. Meek Dentons Bingham Greenebaum LLP Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE
[¶1] Less than a year before he died intestate, Drew Albert Kogan (the "Decedent") executed a transfer-on-death deed for the benefit of Robert Evans and Raymond Rudolph Jr. That deed was for real estate located in Zionsville, Indiana, in which the Decedent had an interest both individually and as trustee of the Drew Albert Kogan Trust (the "Trust"). Following the Decedent's death, a supervised estate (the "Estate") was opened, and the Trust's trustee sued Evans and Rudolph (collectively, the "Primary Beneficiaries"), seeking to invalidate the transfer-on-death deed. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in favor of the Estate and the Trust. The Primary Beneficiaries now bring this interlocutory appeal, raising three issues for our review that we revise and restate as the following two issues:
1. Whether the trial court abused its discretion by striking certain of the Primary Beneficiaries' designated evidence; and
2. Whether the trial court erred by entering summary judgment in favor of the Trust and Estate.
[¶2] We affirm.
Facts and Procedural History
[¶3] In 2012, Helen Kogan, the Decedent's mother, died testate, and by operation of her will, the Trust was created, along with trusts for the Decedent's brothers- Phillip Kogan and Warren Kogan. The Decedent was named trustee of the Trust, and David Kogan was named successor trustee. Upon the Decedent's death, any remaining assets of the Trust were to be distributed on a per stirpes basis to Helen's issue, and if distributed to Phillip, Warren, or both, then those assets were to be distributed to the trustees of their testamentary trusts.
[¶4] In January 2014, Helen's estate deeded to the Trust a 21.66% interest in the real estate commonly known as 195 South Main Street, Zionsville, Indiana (the "Real Estate"); this deed was recorded in the Boone County Recorder's Office as Instrument Number 201400000614. At that time, the Decedent, in his personal capacity, owned the remaining 78.34% interest. Seven years later, on May 26, 2021, the following transfer-on-death deed (the "Recorded Deed") was recorded for the Real Estate, purporting to transfer an interest in the Real Estate to Evans and Rudolph "on Owner's death":
(Image Omitted)
Appellants' App. Vol. III at 126. The Recorded Deed was prepared by Kevin Schiferl and specifically referred to Instrument Number 201400000614.
The Recorded Deed contains three pages, only the first of which is reproduced here. The other two pages contain only ministerial information, such as witness and notary signatures, that is not relevant to this appeal.
[¶5] On January 12, 2022, the Decedent died intestate. At the time of his death, the Decedent was not married and had no children, so his heirs were his brothers,Phillip and Warren. The Primary Beneficiaries immediately took possession of the Real Estate. In May 2022, the Indiana Family and Social Services Administration petitioned to open the Estate, against which it allegedly had a claim for approximately $157,000. After the Estate was opened, Warren filed a petition to be appointed the Estate's administrator, which the trial court granted.
Cause 06D01-2205-ES-000091.
[¶6] On June 16, 2022, the Primary Beneficiaries filed a motion to intervene in the Estate proceedings. The Primary Beneficiaries claimed that the Decedent executed a transfer-on-death deed that gave them "100% of the Real Estate," but that deed was altered before it was recorded. Appellants' App. Vol. II at 41. The exhibits to this motion included both the Recorded Deed and an unrecorded version thereof that did not include any handwritten alterations (the "Unrecorded Deed"). The contents of the Recorded Deed and the Unrecorded Deed are nearly identical-the only difference is the handwritten insertion of "trust" after the Decedent's name in the first line of the Recorded Deed.
[¶7] On June 17, 2022, the Trust filed a petition to docket the Trust; it also filed a four-count complaint against the Primary Beneficiaries: (1) alleging the Recorded Deed was void for failing to meet statutory requirements, (2) seeking to quiet title in the Real Estate, (3) seeking to eject the Primary Beneficiaries from the Real Estate, and (4) alleging the Primary Beneficiaries had converted the Real Estate. The Primary Beneficiaries asserted two counterclaims against the Trust and Estate: (1) seeking to quiet title in the Real Estate and (2) seeking equitable reformation of the Recorded Deed.
Cause 06D01-2206-TR-000003.
[¶8] In August 2022, upon the Primary Beneficiaries' motion, the trial court consolidated the Estate proceedings and the Trust proceedings "for purposes of discovery and determination of ownership of Real Estate." Appellants' App. Vol. II at 117. The next month, the trial court granted the Estate's Petition to Marshal Asset and ordered the Primary Beneficiaries to relinquish all possession and control of the Real Estate to the Estate. The Primary Beneficiaries complied with this order.
[¶9] On May 17, 2023, the Trust and Estate filed a motion for partial summary judgment on the Primary Beneficiaries' counterclaim for equitable reformation. In support, the Trust and Estate designated the following evidence: (1) the Primary Beneficiaries' answer to the Trust's complaint and (2) an affidavit from Warren dated August 15, 2023, which included as exhibits (a) Helen's will, (b) the deed by which the Trust obtained an interest in the Real Estate, and (c) the Recorded Deed.
[¶10] On June 26, 2023, the Primary Beneficiaries filed a motion for summary judgment on all claims. In support of their summary judgment motion and in opposition to the Trust and Estate's motion, the Primary Beneficiaries designated the following evidence: (1) an affidavit from Evans dated August 31, 2022; (2) an affidavit from Carolyn Schiferl dated June 7, 2023; (3) an affidavit from Kevin Schiferl dated August 29, 2022; (4) Helen's will; (5) a transfer-on-death instrument conveying the Decedent's personal property to the Primary Beneficiaries; (6) the Recorded Deed; and (7) the Unrecorded Deed. In his affidavit, Evans states, among other things, that he was not aware the Decedent had executed transfer-on-death instruments of which he was a beneficiary until after the Decedent's death.
[¶11] In her affidavit, Carolyn claims she caused the discrepancy between the Unrecorded Deed and the Recorded Deed by following a Boone County Recorder's Office employee's instruction to insert the word "trust" after the Decedent's name. Carolyn asserts that she made this alteration without consulting with anyone else; she further states that she did not discuss her alteration of the deed for the Real Estate with the Decedent before his death, and she did not discuss it with Kevin until February 2022 (a month after the Decedent's death).
[¶12] In his affidavit, Kevin states that he and the Decedent were friends and that he occasionally helped the Decedent with his legal affairs, including in May 2021 when the Decedent wanted to "put his personal affairs in order." Appellants' App. Vol. III at 117. According to Kevin, the Decedent wanted to leave the Real Estate to the Primary Beneficiaries and represented to Kevin that he owned the Real Estate "outright" and "never told [Kevin] that the Drew Albert Kogan Trust . . . existed, or that the trust owned a percentage interest of" the Real Estate. Id. at 118. Kevin alleges that he "had no reason to question [the Decedent] or investigate" and because he "was not aware that [the Trust] existed," he "made no mention of" it in the deed. Id. Kevin states that his wife Carolyn took the transfer-on-death instruments to the Boone County Recorder's Officer right after the Decedent signed them before a notary public. Kevin avers that he did not know Carolyn had written the word "trust" in the deed for the Real Estate until February 2022. Kevin states that he did not inform the Decedent of this addition. However, Kevin acknowledges and was aware that copies of the Recorded Deed were sent to the Decedent.
We are troubled by Kevin's statements regarding his lack of knowledge of the Trust. Both the Recorded Deed and Unrecorded Deed include references to Instrument Number 201400000614, which is the instrument that conveyed all of Helen's interest in the Real Estate to the Trust.
[¶13] In their response to the Primary Beneficiaries' motion for summary judgment, the Trust and Estate designated an affidavit from Warren dated September 15, 2023, which included the same exhibits as Warren's August 2023 affidavit, see supra ¶ 9. In addition to response briefs from both sides on both summary judgment motions, the Trust and Estate filed a motion to strike Kevin's, Carolyn's, and Evans's affidavits, arguing that all three affidavits were inadmissible because Kevin, Carolyn, and Evans were incompetent witnesses under Indiana's Dead Man's Statute, and that Kevin's and Carolyn's affidavits were further inadmissible because they violated attorney-client privilege and because they constituted extrinsic evidence being offered to contradict the Recorded Deed.
[¶14] After a hearing, the trial court entered an order (1) striking Kevin's, Carolyn's, and Evans's affidavits; (2) declaring the Recorded Deed invalid; and (3) entering summary judgment in favor of the Trust and Estate on the Trust's voidance, quiet title, and ejectment claims as well as on the Primary Beneficiaries' equitable reformation counterclaim. The Primary Beneficiaries subsequently filed a motion asking the trial court to reconsider its rulings or in the alternative to certify its order for interlocutory appeal. The trial court certified its order for interlocutory appeal, and upon the Primary Beneficiaries' motion, this court accepted that appeal.
The trial court did not grant or deny the Primary Beneficiaries' motion for summary judgment regarding the Trust's conversion claim.
Discussion and Decision
1. Any Error in Granting the Motion to Strike Was Harmless
[¶15] The Primary Beneficiaries first challenge the trial court's grant of the Trust and Estate's motion to strike Kevin's, Carolyn's, and Evans's affidavits. "A trial court has broad discretion in ruling on a motion to strike, especially with regard to the admissibility of evidence." Moryl v. Ransone, 4 N.E.3d 1133, 1138 n.5 (Ind. 2014) (citing Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind. 2010), abrogated in part on other grounds by Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016)). "On summary judgment, a court considers the forms of admissible evidence properly designated under Trial Rule 56(C), including but not limited to affidavits." Id.
[¶16] Here, the trial court granted the Trust and Estate's motion to strike because it determined the challenged affidavits were inadmissible. To the extent the trial court's ruling depended on legal questions, we review the ruling de novo. See Tunstall v. Manning, 124 N.E.3d 1193, 1196 (Ind. 2019) (citing Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019)). To the extent the ruling did not raise a question of law, we review it for an abuse of discretion. Id. (citing Fairbanks, 119 N.E.3d at 567). A trial court abuses its discretion if its decision "is clearly against the logic and effect of the facts and circumstances." Fairbanks, 119 N.E.3d at 568 (citing Shinnock v. State, 76 N.E.3d 841, 842-43 (Ind. 2017)). However, we need not determine if the trial court here abused its discretion by granting the motion to strike. Even if we assume that the trial court erred in striking the challenged affidavits, any such error was harmless, see Ind. Appellate Rule 66(A), because consideration of those affidavits does not change the fact that the Primary Beneficiaries are not entitled to summary judgment on any of the claims in this case, as will be explained below.
2. The Trial Court Did Not Err by Granting Summary Judgment in Favor of the Trust and Estate
[¶17] The Primary Beneficiaries argue the trial court erred when it entered summary judgment in favor of the Trust on three of the Trust's four claims and in favor of the Trust and Estate on both of the Primary Beneficiaries' counterclaims. As the Indiana Supreme Court has explained, we review summary judgment decisions de novo. Miller v. Patel, 212 N.E.3d 639, 644 (Ind. 2023) (quoting 624 Broadway, LLC v. Gary Hous. Auth., 193 N.E.3d 381, 384 (Ind. 2022)). Summary judgment is proper only "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." City of Marion v. London Witte Grp., LLC, 169 N.E.3d 382, 390 (Ind. 2021) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).
[¶18] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. T.R. 56(C), (H). We resolve "all factual inferences and all doubts as to the existence of a material issue" in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)).
[¶19] The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Wireman v. LaPorte Hosp. Co., 205 N.E.3d 1041, 1045 (Ind.Ct.App. 2023) (citing Serbon v. City of E. Chicago, 194 N.E.3d 84, 91 (Ind.Ct.App. 2022)), reh'g denied (Apr. 5, 2023), trans. denied, 211 N.E.3d 1007 (Ind. 2023). The movant "can make this showing when undisputed evidence affirmatively negates a required element" of the nonmovant's claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022) (citing Siner, 51 N.E.3d at 1187-88). Likewise, the movant can make this showing regarding its own claims by affirmatively proving all the required elements thereof. See id. (citing Siner, 51 N.E.3d at 1187-88). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to show the existence of a genuine issue of material fact. Wireman, 205 N.E.3d at 1045 (citing Serbon, 194 N.E.3d at 91). Where, as here, the parties have filed cross-motions for summary judgment, our standard of review and analysis remain the same, and we consider each motion separately to determine whether the movant is entitled to summary judgment. Erie Indem. Co. v. Est. of Harris, 99 N.E.3d 625, 629 (Ind. 2018) (citing SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015)).
[¶20] The Trust and Estate filed a motion for partial summary judgment on the Primary Beneficiaries' equitable reformation claim, and the Primary Beneficiaries filed a motion for summary judgment on all claims, including their two counterclaims-quiet title and equitable reformation-as well as the Trust's four claims-voidance of the Recorded Deed, quiet title, ejectment, and conversion. The parties' claims require us to interpret the Recorded Deed and determine whether it is valid and whether it is unambiguous. The interpretation of a written instrument, including a deed, is generally a question of law we review de novo. Underwood v. Bunger, 70 N.E.3d 338, 341 (Ind. 2017) (citing Corn v. Corn, 24 N.E.3d 989, 994 (Ind.Ct.App. 2015), trans. denied). Thus, questions of deed interpretation are particularly appropriate for summary judgment. See Est. of Harris, 99 N.E.3d at 629 (citing Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009)).
[¶21] "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.'" Underwood, 70 N.E.3d at 341-42 (emphasis in original) (quoting Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 256 (Ind. 2013)). Accordingly, we favor a construction "that reconciles and harmonizes the entire deed." Hoose v. Doody, 886 N.E.2d 83, 90 (Ind.Ct.App. 2008) (quoting Parkison v. McCue, 831 N.E.2d 118, 128 (Ind.Ct.App. 2005), trans. denied), trans. denied.
[¶22] The Trust and Estate claim the Recorded Deed is invalid because the Recorded Deed identifies the Trust as the "Owner" but the Decedent executed it in his individual capacity. The Trust and Estate assert this discrepancy violates Indiana Code section 32-17-14-11(a)(1)'s requirement that a transfer-on-death deed be "executed by the owner or owner's legal representative" and fails to identify a natural life upon which to transfer the Real Estate. We must agree.
[¶23] First, because the Trust is named as the "Owner" in the Recorded Deed, the deed purports to transfer the Trust's interest in the Real Estate, but the Decedent executed the Recorded Deed in his individual capacity, not in his capacity as the trustee of the Trust; as the Trust and Estate argue, this violates Indiana Code section 32-17-14-11(a)(1). Second, the Recorded Deed transfers the Trust's portion of the Real Estate to the Primary Beneficiaries "on Owner's death," but the Trust cannot die because it is not a living person, see Ind. Code § 30-4-1-1(a) ("A trust is a fiduciary relationship between a person who, as trustee, holds title to property and another person for whom, as beneficiary, the title is held."). We also observe that the Recorded Deed states the Trust resides at the Real Estate, but a trust does not have a place of residence because it is not a living person, see id.
[¶24] Nonetheless, the Primary Beneficiaries contend the Recorded Deed is valid because the handwritten word "trust" has no legal effect. In making this argument, the Primary Beneficiaries ask us to consider the Unrecorded Deed and Carolyn's affidavit, which is essentially a concession that the Recorded Deed is ambiguous because we may consider extrinsic evidence only if the Recorded Deed is ambiguous, see Hoose, 886 N.E.2d at 90 (quoting Kopetsky v. Crews, 838 N.E.2d 1118, 1124 (Ind.Ct.App. 2005)). While we agree that the Recorded Deed is ambiguous, "extrinsic evidence is only admissible to explain the instrument and not contradict it," Lippeatt v. Comet Coal &Clay Co., 419 N.E.2d 1332, 1335 (Ind.Ct.App. 1981) (citing Hauck v. Second Nat. Bank of Richmond, 153 Ind.App. 245, 261, 286 N.E.2d 852, 861-62 (1972)), reh'g denied. Ignoring the word "trust" contradicts the remaining plain language of the Recorded Deed because it includes a cross-reference to Instrument Number 201400000614, which is the instrument that conveyed an interest in the Real Estate to the Trust. That is, removing the handwritten addition of the word "trust" does not clarify whose interest in the Real Estate is being conveyed-the Trust's or the Decedent's.
[¶25] Finally, based on this ambiguity and invalidity, the Primary Beneficiaries request equitable reformation of the Recorded Deed. In particular, the Primary Beneficiaries want the word "trust" stricken from the Recorded Deed such that it conveys the Decedent's personal interest in the Real Estate; that is, it is as if the Unrecorded Deed had been recorded without alterations. This would not fully remedy the ambiguity because, as explained above, both the Recorded Deed and Unrecorded Deed include a cross-reference to the deed by which the Trust obtained an interest in the Real Estate. Even if removing the word "trust" from the Recorded Deed would remedy the ambiguity, the parties agree the Recorded Deed was a gift from the Decedent to the Primary Beneficiaries. Once again, the Primary Beneficiaries did not know the Decedent had attempted to transfer his interest in the real estate until after the Decedent's death. It is undisputed that the Recorded Deed was a gift, so the Primary Beneficiaries cannot petition for correction against the grantor because our Supreme Court has "long held that although a voluntary deed, such as a deed given as a gift, will be corrected of mistakes upon the application of the grantor against the grantee, such mistakes in a voluntary deed will not be corrected upon the application of the grantee against the grantor," Wright v. Sampson, 830 N.E.2d 1022, 1028 (Ind.Ct.App. 2005) (citing Randall v. Ghent, 19 Ind. 271, 272 (1862)).
We observe that this court in Wright also held that "a deed given as a gift can be reformed if the party seeking reformation of the deed proves by clear and convincing evidence that a unilateral mistake was made in the execution of the deed." 830 N.E.2d at 1028. However, the Wright court acknowledged that reformation of a gift deed for unilateral mistake is limited by the prohibition against a grantee seeking equitable reformation of a gift deed against the grantor. Id. ("Here, though, Wright is not seeking reformation of the deeds as against Ray, the grantor, but against his fellow grantee, Sampson. Therefore, the rule announced by our supreme court in Randall does not bar Wright from seeking reformation of the deeds.")
[¶26] The Primary Beneficiaries argue that although they are the grantees, their counterclaim for equitable reformation is not against the grantor. Here, the grantor was either the Trust-as the "Owner" described in the Recorded Deed-or the Decedent-as the "Owner" described in the Unrecorded Deed. Since the Decedent's death, the Estate via the personal representative stands in his shoes. See In re Est. of Long, 804 N.E.2d 1176, 1181 (Ind.Ct.App. 2004) (holding an estate's personal representative stands in the decedent's shoes and can bring actions if the decedent could have); Hecht v. Ohio &M.R. Co., 32 N.E. 302, 303 (Ind. 1892) (holding an estate's administrator "stands in the shoes of the deceased"); I.C. § 29-1-1-3(a)(11) (defining "estate" generally as "the real and personal property of the decedent"); id. § 29-1-1-3(a)(30) (defining "personal representative" as including "executor" and "administrator"). The Primary Beneficiaries brought their counterclaim for equitable reformation against both the Trust and the Estate. Therefore, the Primary Beneficiaries are 7 suing the grantor, so equitable reformation is not an available remedy, see Wright, 830 N.E.2d at 1028 (citing Randall, 19 Ind. at 272).
We decline the Primary Beneficiaries' invitation to create an exception to the prohibition against equitably reforming deeds upon application of the grantee against the grantor for scenarios like the one here where the grantees make their application after the grantor's death.
[¶27] Because the Recorded Deed cannot be equitably reformed, its ambiguity and invalidity cannot be resolved. Consequently, Carolyn's and Kevin's affidavits are of no moment because we cannot reach the question of what the Decedent's intentions were for the Recorded Deed; Evans's affidavit is irrelevant to that question regardless. Based on the foregoing, we conclude any error in striking Carolyn's, Kevin's, and Evans's affidavits from the record was harmless, and we further conclude that the trial court did not err by granting summary judgment in favor of the Trust and Estate. We therefore affirm the trial court on all issues raised.
[¶28] Affirmed.
Pyle, J., and Weissmann, J., concur.