In the Matter of the Supervised Estate of David M. Christian: Woodrow Garry DeRossett and William Larry DeRossett v. Estate of David M. Christian (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 15 2020, 9:13 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Robert J. Hardy Douglas E. Johnston Hardy Law Office Dana K. Carlson Auburn, Indiana Tourkow, Crell, Rosenblatt & Johnston, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Supervised April 15, 2020 Estate of David M. Christian: Court of Appeals Case No. 19A-ES-2815 Appeal from the Dekalb Circuit Woodrow Garry DeRossett and Court William Larry DeRossett, The Honorable Kurt Bentley Grimm, Appellants, Judge

v. Trial Court Cause No. 17C01-1908-ES-4

Estate of David M. Christian, Appellee.

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 1 of 10

Case Summary [1] Woodrow Garry DeRossett and William Larry DeRossett (“the DeRossetts”),

brothers-in-law of decedent David M. Christian (“Christian”), bring this appeal

pursuant to Indiana Appellate Rule 14. They appeal the denial of their motion

to correct error, which challenged a grant of summary judgment, upon the

motions of the Estate of David M. Christian (“the Estate”) and the Indiana

Family and Social Services Agency (“FSSA”),1 disposing of the DeRossetts’s

claim that Christian had deeded real property to them. The DeRossetts present

the sole issue of whether summary judgment was improvidently granted. We

affirm.

Facts and Procedural History [2] On September 17, 1986, Christian and his wife, Nancy, executed a mutual will

(“the Will”) providing that the survivor of them would take the entire estate of

the decedent, which would then pass upon the death of the last surviving spouse

to their three children, April Christian Blank, David Mark Christian, and

William Christian (“the Heirs”). The Heirs were minors when the Will was

executed, and thus the Will designated the DeRossetts to serve as personal

representatives.

1 The FSSA is not an active party on appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 2 of 10 [3] Nancy died in 2003, owning an interest as a tenant in common with her

brothers, the DeRossetts, in two farms located in Noble County, Indiana.

Nancy owned a 1/9 interest in 48.83 acres on Waits Road (“the Waits Farm”)

and a 1/3 interest in 5.739 acres on Mapes Road (“the Mapes Farm”).

Pursuant to the Will, this property interest passed to Christian. Christian filed

in the office of the Recorder of Noble County (“the Recorder”) an affidavit as

surviving spouse and the Recorder documented the transfer of Nancy’s interest

to Christian. [4] On November 26, 2016, Christian signed before a Notary Public a document

providing in its entirety as follows:

To Whom It May Concern:

I request that I, [signed] David M. Christian, (David M. Christian) have my name be removed from any deed or record that lists me as a part owner on any property, which also has W. Garry DeRossett and W. Larry DeRossett as co-owners. It is my desire to have the ownership of the property in the names of W. Garry DeRossett and W. Larry DeRossett.

Sincerely,

[Signature and Notary Block]

(Appellee’s App. Vol. II, pg. 30.) [5] Christian died on April 16, 2017, and an unsupervised estate was opened on

September 14, 2017. On October 30, 2017, the FSSA filed a claim against the

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 3 of 10

Estate in the amount of $33,356.94. On December 12, 2017, the DeRossetts

filed a claim against the Estate for contribution to operational expenses of the

Waits Farm and the Mapes Farm. Because of the latter claim, the Heirs argued

that there was a conflict of interest in having either DeRossett brother serve as a

personal representative. The probate court appointed a special personal

representative. The interested parties then filed a Stipulation of Relevant Facts,

acknowledging that Christian had inherited and recorded Nancy’s interest in

the Waits Farm and the Mapes Farm. [6] On July 17, 2018, the DeRossetts filed in the Recorder’s office a document

titled “Quitclaim Deed Under IC 32-21-1-15.” Id. at 32. According to the face

of the document, it commemorated a “Quitclaim executed on this 26th day of

November 2016 by grantor, David M. Christian.” Id. Appended to the

unsigned quitclaim deed was a notarized copy of the November 26, 2016

document. On November 5, 2018, the appointed personal representative of the

Estate filed a “Petition for Declaratory Ruling on One Critical Issue Involving

Title to Real Estate. Id. at 9. [7] On January 21, 2019, the DeRossetts filed a motion for summary judgment in

their favor upon the personal representative’s request for declaratory relief. The

Estate and the FSSA filed cross-motions for summary judgment, collectively

contending that the document signed by Christian in November of 2016 was

not a valid deed to transfer any interest to the DeRossetts, that Christian was

prohibited by the terms of the Will from transferring any such property interest,

and that the purported transfer was procured by fraud. On August 23, 2019, the

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 4 of 10

probate court issued its summary judgment order, identifying two grounds for

the decision: Christian had not executed a valid deed granting a real property

interest to the DeRossetts, and the Will prohibited Christian’s disposition of his

interest in the Waits Farm and the Mapes Farm.2 The court did not address the

alternate grounds of fraud. The probate court, sua sponte, ordered that the

unsupervised estate be converted to a supervised estate. [8] On September 20, 2019, the DeRossetts filed a motion to correct error. The

motion was summarily denied, and this appeal ensued.

Discussion and Decision [9] In general, the denial of a motion to correct error is reviewed for an abuse of

discretion. Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct. App.

2018). However, where issues raised are questions of law, our review is de

novo. Id. Here, the motion to correct error challenged the grant of summary

judgment. The Indiana Supreme Court has explained that

2 The Will contained Item 8, a non-revocation provision:

We have made a Will containing certain mutual provisions in favor of each other with the understanding and upon the condition that neither of us will revoke such provision nor make any changes therein without the written consent of the other and we have further agreed that neither of us shall transfer any property during our lifetime without the consent of the other.

(Appellee’s App. Vol. II, pg. 25.)

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[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate ‘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 judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T. R. 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.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). [10] A trial court’s findings and conclusions offer insight into the rationale for the

court’s judgment and facilitate appellate review but are not binding on this

Court. Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018).

Additionally, we are not constrained to the claims and arguments presented to

the trial court, and we may affirm a summary judgment ruling on any theory

supported by the designated evidence. Id. The fact that the parties have filed

cross-motions for summary judgment does not alter this standard of review or

change our analysis. Id. The party that lost in the trial court has the burden of

persuading us that the trial court erred. Id. [11] Here, the DeRossetts contended that they, and not the Estate, owned the

property previously owned by Nancy, as evidenced by a quitclaim deed

incorporating a deed from Christian. The probate court concluded that the

purported quitclaim deed failed to comply with the requirements of Indiana

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 6 of 10

Code Section 32-21-1-15. Where, as here, the relevant facts are not in dispute

and the interpretation of a statute is at issue, such statutory interpretation

presents a pure question of law for which summary judgment disposition is

appropriate. Clem v. Watts, 27 N.E.3d 789, 791 (Ind. Ct. App. 2015). The first

step in interpreting a statute is to determine whether the legislature has spoken

clearly and unambiguously on the point in question. Id. When a statute is clear

and unambiguous, we need not apply any rules of construction other than to

require that the words and phrases be taken in their plain, ordinary, and usual

sense. Id. [12] A valid deed must satisfy certain requirements; that is,

[i]n order that an instrument purporting to convey title to land or an interest or estate in land may be valid as a deed and operative to pass such title to or interest in land, it is essential that there be a grantor, a grantee, and a thing granted, and that it convey a present interest or estate. It is further necessary that the instrument be signed by the grantor, or someone whom he directs to sign for him, or his authorized agent, be attested and acknowledged in conformity to the local statutory requirements, and delivered by the grantor to the grantee or to someone in his behalf and accepted by the grantee.

Bercot v. Velkoff, 111 Ind. Ct. App. 323, 332, 41 N.E.2d 686, 689 (1942). [13] Regarding quitclaim deeds in particular, Indiana Code Section 32-21-1-15(a)

provides:

A conveyance of land that is:

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 7 of 10

(1) worded in substance as “A.B. quitclaims to C.D.” (here describe the premises) “for the sum of” (here insert the consideration); and

(2) signed, sealed, and acknowledged by the grantor (as defined in IC 32-17-1-1);

is a good and sufficient conveyance in quitclaim to the grantee and the grantee’s heirs and assigns.

[14] The purported quitclaim deed filed by the DeRossetts was not signed, sealed,

and acknowledged by Christian as the grantor. In order to ostensibly satisfy the

requirement of that action by the grantor, the DeRossetts appended the

November 2016 document. The quitclaim document itself included a legal

description of some real property, albeit not a description derived from the

purportedly incorporated conveyance document. At bottom, the DeRossetts

have contended they were able to draft and execute a quitclaim deed because

Christian had earlier conveyed his interest in the farms in a form that the

DeRossetts had accepted and considered to be a deed. However, the

underlying document suffered from a fatal deficiency. [15] It has long been the law that “deeds purporting to convey lands, which do not

describe or designate the lands, are invalid for uncertainty.” Wilson v. Johnson,

145 Ind. 40, 38 NE 38, 39 (1894). The DeRossetts observe that Indiana Code

Section 32-21-1-15 “does not define what is an adequate description” and they

argue that “a reasonable trier of fact could find that the November 26, 2016

document did in fact contain an adequate description.” Appellant’s Brief at 11.

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They encourage liberality in evaluating a property description and argue that,

given Christian’s reference to property he co-owned with the DeRossetts, “it is

possible that a finder of fact could conclude the description sufficient when only

two parcels in existence meet that description.” Id. at 12. Our Indiana

Supreme Court has plainly stated, “It is a familiar rule, that the part of the deed

describing the premises conveyed shall be construed with the utmost liberality.”

Rucker v. Steelman, 73 Ind. 396, 407 (1881). That said, nothing is left to a

factfinder here. As a matter of law, a property description is required for a valid

deed. The document signed by Christian stating his request that his name be

removed from unspecified deeds or records does not contain any description to

which the principle of liberal construction might be applied. [16] The probate court properly concluded that the purported quitclaim deed,

derivative of a document lacking a property description, was invalid. The

Estate is entitled to summary judgment on this basis, and we need not address

whether Christian was contractually proscribed, by the terms of the Will, from

conveying any property inherited from his wife.

Conclusion [17] Summary judgment was properly granted to the Estate disposing of the

DeRossetts’s claim that they had been granted Christian’s interest in the Waits

Farm and the Mapes Farm.

Court of Appeals of Indiana | Memorandum Decision 19A-ES-2815 | April 15, 2020 Page 9 of 10 [18] Affirmed.

Crone, J., and Altice, J., concur.

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