7th Circuit Court of Appeals
Criminal — Swearing Potential Jurors
United States of America v. Elmer F. Wiman
The 7th Circuit Court of Appeals has upheld a man’s robbery-related convictions despite the district court’s initial failure to administer an oath of truthfulness to potential jurors, finding such an oath is not explicitly required.
In United States of America v. Elmer F. Wiman, 16-3929, Elmer Wiman was captured on surveillance video robbing a credit union at gunpoint. Wiman fled, but police officers caught up with him and recovered a cooler from the credit union containing sunglasses, a hat, gloves and handgun, plus $3,084 in cash in his vehicle.
Wiman confessed to the robbery while at the police station and was indicted on three counts: robbing the credit union, using a firearm during and in relation to a crime of violence, and possessing a firearm as a felon. After he failed to suppress the evidence against him and his confession, Wiman’s case proceeded to trial.
However, before voir dire for Wiman’s trial, the late Senior Judge Larry J. McKinney of the U.S. District Court for the Southern District of Indiana failed to swear the venire to answer all questions truthfully. Once McKinney realized the oversight, he asked the potential jurors whether their answers would have changed had he administered the oath.
Though the jurors indicated their answers would not have changed, Wiman’s counsel moved for a mistrial. But after confirming from the jurors a second time that their answers would not have changed had the initial oath been administered, McKinney allowed the trial to proceed.
After two days of testimony, Wiman was found guilty as charged and was sentenced to 110 months in prison. Wiman then filed the instant appeal, revisiting the issue of McKinney’s failure to issue the initial oath to the venire, but the 7th Circuit upheld Wiman’s convictions Nov. 13.
In a unanimous per curiam opinion, the appellate court disagreed with Wiman’s contention that the failure to administer the oath was a structural error. Instead, the court said there is no rule requiring such an oath to be administered to a venire, and without that requirement, McKinney’s oversight cannot be considered a structural error.
The appellate court went on to write that harmless-error review was appropriate in this case, and that such harmless error occurred because Wiman was not prejudiced.
“Even without being administered the formal oath, the jurors were admonished by the judge at the outset of jury selection to comply with the oath’s directions – to participate fully and honestly in voir dire,” the court wrote. “Additionally, once the district court realized its mistake, it immediately took remedial steps: it administered the proper oath and then questioned the jurors twice – both collectively and individually — to confirm that their answers would not have changed had they been sworn at the beginning of voir dire.”
Indiana Court of Appeals
Guardianship — Attorney Fees
Guardianship: Ray Lamey M.D., et al. v. Ziemer, Stayman, Weitzel & Shoulders, LLP, et al.
The Indiana Court of Appeals on Nov. 8 affirmed an award of attorney fees in a guardianship dispute that involved expert witnesses who testified as to the testamentary capacity of a man diagnosed with dementia.
A dispute arose over the care of lifelong farmer and businessman Darvin Lamey, who was 87 in 2014 when his son Raymond petitioned for temporary guardianship, concerned that Darvin could no longer make informed decisions about his health. A guardian ad litem also was appointed.
Some time later, the law firm of Ziemer, Stayman, Weitzel & Shoulders, LLP, et al., became aware Darvin was seeking counsel to terminate the guardianship over him and his estate. After proceedings and a hearing, parties concluded German American Bank would be appointed guardian.
The trial court ordered the bank to pay the law firm attorney fees of more than $100,000 and associated fees for expert witnesses and other claims from ZSWS and and Kolb Roellgen & Kichoff, LLP.
The Court of Appeals affirmed those awards in Guardianship: Ray Lamey M.D., et al. v. Ziemer, Stayman, Weitzel & Shoulders, LLP, et al., 26A01-1703-GU-588.
“We hold that while Appellants have standing to pursue this interlocutory appeal of right, the trial court did not abuse its discretion in granting ZSWS’s and Kolb’s fee petitions and in ordering the payment of the expert witness fees,” Judge Patricia Riley concluded for the panel. “We deny ZSWS’s and Kolb’s request for appellate attorney fees.”
Mortgage Foreclosure — Standing
Bryant Edward Duty Sr. v. The CIT Group/Consumer Finance, Inc., Northwood Investments, LLC
A South Bend man had no standing to challenge the assignment of loan documents and therefore was not entitled to relief from judgment in a mortgage foreclosure, the Indiana Court of Appeals ruled Nov. 8.
The judgment in question was a foreclosure action decided in favor of U.S. Bank Trust National Association, as Trustee of American Homeowner Preservation Trust 2014A, and involving Duty’s South Bend house. Bryant Edward Duty had executed a promissory note and mortgage in favor of Wilmington Finance upon purchase of the house.
After a mortgage foreclosure in 2009, the sale of the home was delayed for several years, apparently due to Duty’s bankruptcy filing later that year. The property was purchased this summer by Northwood Investments.
The COA affirmed the trial court’s denial of Duty’s motion for relief from judgment in Bryant Edward Duty Sr. v. The CIT Group/Consumer Finance, Inc., Northwood Investments, LLC, 71A04-1704-MF-920.
“Duty contends that he is entitled to relief from judgment on the basis that the entity which pursued the foreclosure action in 2009 had no legal right to enforce the Loan Documents at the time,” Judge Cale Bradford wrote for the court. “Because we conclude that Duty has no standing to challenge the assignment of the Loan Documents from assignor to assignee, we affirm.”
Domestic Relation — Postnuptial Agreement
George A. Buskirk v. Maureen Buskirk
A Boone county woman cannot recover attorney fees and maintenance from her ex-husband after the Indiana Court of Appeals determined the postnuptial agreement they entered into 40 years ago waived her right to such recovery.
In George A. Buskirk v. Maureen Buskirk, 06A01-1610-DR-2296, George and Maureen Buskirk entered into a postnuptial agreement in June 1976 that provided the spouses would keep their individual property and income separate and also provided for mutual releases. George Buskirk later testified he and his wife came to that agreement as a way of ensuring their marriage would continue after a marital dispute caused his wife to leave their home for several days.
When Maureen Buskirk filed for divorce nearly 40 years later, she requested a division of property, maintenance and attorney fees, while her husband moved to enforce the agreement. She then moved for summary judgment, while George Buskirk designated his own affidavit in which he testified that he and his wife had not acquired any joint property or debt since signing the 1976 agreement and had not filed joint tax returns.
The Boone Circuit Court ultimately granted Maureen’s motion, finding the agreement was made without valid consideration and, thus, was unenforceable. The trial court also found that because the agreement noted the Buskirks did not intend to dissolve their marriage, the agreement was not entered into as a reconciliation agreement.
Thus, the court ordered George Buskirk to pay his wife maintenance and attorney fees. But the Indiana Court of Appeals overturned that decision Nov. 15.
Judge Elaine Brown, writing for the unanimous appellate panel, first wrote in the opinion that George Buskirk’s affidavit testifying to a marital dispute that ended in the signing of the agreement “can be considered to show the nature of the consideration supporting the contract” and also created an issue of fact regarding consideration. The mutual agreements also constitute consideration, Brown said. Thus, summary judgment was inappropriate in regard to the consideration question, she said.
Brown then pointed to language in the agreement that held, “the mutual waivers and releases of the parties which might or could devolve upon them in the event an action for divorce were filed…,” to indicate the agreement did address releases in the event of a divorce. It also included language that held both George and Maureen “shall have the absolute right to manage…any property now separately owned…and may enjoy and dispose of such property…as if the marriage had not taken place.” That language, Brown said, indicated “an intent to waive any right to property of the other including spousal maintenance and attorney fees… .”
Thus, the appellate court concluded the agreement was valid and enforceable, so the grant of summary judgment to Maureen was reversed.
Adoption — Implied Consent
In the Matter of the Adoption of J.R.O. (Minor Child) J.O. (Father) v. A.T. and M.H.; et al.
An Indiana trial court that has already granted the petition to adopt a Vanderburgh County child must revisit the adoption proceedings after the Indiana Court of Appeals determined the court erroneously concluded the father’s consent to the adoption was implied.
After being removed from A.W. and J.O.’s care, J.R.O. was made a ward of the Department of Child Services as part of a child in need of services proceeding. Meanwhile, in a separate proceeding, the child’s paternal grandparents petitioned for guardianship of J.R.O., and both parents consented.
A third proceeding was also ongoing in which A.T. and M.H., the child’s great aunt and her wife, petitioned to adopt J.R.O. The women alleged the parents’ consent to the adoption was not required under Indiana Code section 31-19-9-8.
J.O., the father, failed to appear at a subsequent hearing because he was incarcerated, and the attorney who had represented him in the CHINS proceeding, Jacob Warrum, objected to the filing of the adoption petition because it went against the permanency plan and would terminate all parental rights. A consent and adoption hearing were then consolidated into one hearing, at which the mother signed a consent to the adoption, while Warrum appeared by phone for J.O.
The Department of Child Services then moved for the involuntary termination of both parents’ parental rights. J.O. was still incarcerated at that time, so his court-appointed attorney, Thomas Krotcha, entered a denial on his behalf.
Then, at a consolidated adoption and TPR hearing, A.T. and M.H. moved to determine J.O.’s consent was irrevocably implied under I.C. 31-19-9-18 because he did not file a written motion to contest the adoption. The Vanderburgh Superior Court agreed and later issued an order granting A.T. and M.H.’s adoption petition.
J.O. then filed a consolidated appeal related to the adoption and TPR proceedings and argued, among other things, that the court erred in determining his consent was irrevocably implied. In a Nov. 16 opinion, the Indiana Court of Appeals addressed only that issue, with Judge Terry Crone noting it was a question of first impression requiring interpretation of I.C. 31-19-9-18.
The appellate panel ruled against the trial court’s decision, finding that Warrum’s initial oral objection to the filing of the adoption petition was sufficient to defeat the exception to consent laid out in that statute.
“The legislature chose not to require the filing of a written motion to contest an adoption in Indiana Code Section 31-19-9-18, and we ‘will not read into a statute that which is not the expressed intent of the legislature,’” Crone wrote. “Moreover, we have often held that where the purpose of a rule is satisfied, this Court will not elevate form over substance.”
Find the purpose of the statute was satisfied by Warrum’s oral objection, the appellate panel reversed the ruling that J.O.’s consent was irrevocably implied and remanded the case for further proceedings, which could include reinstatement of the CHINS, guardianship and/or TPR proceedings.
“We acknowledge the disruption that our holding will cause to all parties involved, especially (A.T. and M.H.) and J.R.O.,” Crone wrote. “But as our legislature has acknowledged, it is the policy of this state and the purpose of Indiana Code Title 31 to recognize and enforce the legal rights of children and their parents, … and our interpretation of Indiana Code Section 31-19-9-18 is entirely consistent with that policy and purpose.”
Civil Tort — Directed Verdict
Francisco Perez, Jr., Individually, and by Laura Aguirre his natural guardian and next friend, and Laura Aguirre, Individually v. Michael Hu, M.D.; St. Catherine Hospital of East Chicago Indiana, Inc.
A northern Indiana trial court must revisit the issue of whether a doctor adequately informed his patient of the risks associated with having a natural birth after the Indiana Court of Appeals reversed a grant of a directed verdict in the doctor’s favor on the issue of informed consent.
While pregnant with her fourth child, Francisco, Laura Aguirre was diagnosed with gestational diabetes. Aguirre also qualified as obese during her pregnancy, and the combination of obesity and gestational diabetes increases the risk of an infant suffering from paralysis during birth.
The risk of these injuries, known as shoulder dystocia, can be mitigated by giving birth via Cesarean section. However, Aguirre claimed her OB-GYN, Dr. Michael, Hu, did not discuss the increased risk of a vaginal birth with her, but instead said she would not need a C-section.
Then, when she arrived at the hospital for her labor to be induced, Aguirre signed a consent form specifying she would have a vaginal delivery. Francisco was then born and suffered from shoulder dystocia during delivery, resulting in his inability to use his left arm.
Two years after her son’s birth, Aguirre filed a proposed medical malpractice complaint, claiming Hu failed to provide her with sufficient information to allow her to give informed consent to a vaginal delivery. However, a medical review panel found the evidence did not establish that Hu failed to meet the applicable standard of care.
Aguirre then filed a complaint against Hu and the hospital in Lake Superior Court that mirrored the proposed medical malpractice complaint. During an ensuing trial, Dr. Bruce Halbridge, an OB-GYN, testified for Aguirre that each of the risk factors associated with her pregnancy created a 95 percent risk that shoulder dystocia would occur during delivery, and that Hu should have notified her of that risk and recommended a C-section. Further, Aguirre testified that had she known of the risks, she would have opted for a C-section.
Hu then moved for a partial directed verdict as to the issue of informed consent, which the trial court granted, while the jury returned a verdict in favor of Hu. Aguirre then filed the instant appeal, challenging only the grant of a directed verdict on the informed consent issue.
The Indiana Court of Appeals reversed the grant of the directed verdict Nov. 17, with Judge Michael Barnes writing that Halbridge’s expert testimony provided evidence of the fact that Aguirre’s baby was at a high risk of encountering shoulder dystocia. Barnes also said there was evidence Hu did not convey that information to Aguirre, and that as a result Francisco suffered severe damage to his left arm.
That evidence combined satisfied four of the five elements of an informed consent claim, as laid out in Spar v. Cha, 907 N.E.2d 974, 984 (Ind. 2009), thus defeating a directed verdict, Barnes said. He also grappled with the question of whether Aguirre was required to present expert testimony that a “reasonable person” would have chosen a C-section – as has been held in some, but not all, previous precedent – and ultimately determined that if she were required to do so, Aguirre met that burden.
Finally, considering there are issues of fact regarding whether Hu adequately explained the risks of a vaginal birth, the appellate panel determined Aguirre was not bound by the signed consent form and instead reversed the entry of the directed verdict and remanded the case for further proceedings.
Civil Plenary — Motion for Eviction
Robin King v. Rebecca Conley
A Hendricks County landlord must close on the sale of her property to a tenant after the Indiana Court of Appeals ruled Nov. 21 there was no breach of a lease agreement preventing the enforcement of an Option to Purchase Real Estate Agreement.
In December 2015, Robin King and Rebecca Conley entered into a lease agreement and Option to Purchase Real Estate Agreement that gave Conley an exclusive and irrevocable option to purchase a residential home from King. Conley paid King $13,000 pursuant to the option agreement.
The one-year lease agreement included a provision that prohibited Conley from making any changes to the leased premises with obtaining written consent from King. Additionally, the option agreement held King could terminate it if Conley was found in default.
About three months later, Conley reported a leak to King, who accessed the house and speculated that Conley could have caused a problem. Conley was concerned by that speculation, so she decided King could not enter the house unless someone else was present and changed the locks.
Conley then sent King a letter on March 25 notifying her that she was exercising her option to purchase the property. King also wrote a letter on March 30 telling Conley she had violated the lease agreement by painting the walls, replacing the locks and removing plants and giving her 15 days to correct the violations.
King then filed a complaint against Conley alleging breach of the lease, then moved for eviction on the same grounds. Conley responded with a counterclaim for specific performance of the option requiring King to close the transaction and requesting attorney fees.
The Hendricks Superior Court ultimately ruled in favor of Conley, noting in its findings that Conley had texted King about changing the color of the walls, and King had responded by saying she would be envious when she saw them. Thus, the trial court found neither the painting nor the changing of the locks – which the judge deemed reasonable – was a material breach of contract.
Further, because Conley timely submitted notice of her intent to exercise the option to King, she was entitled to specific performance. The trial court then denied the motion for eviction, ordered King to close on the transaction and granted Conley’s request for attorney fees.
King appealed in Robin King v. Rebecca Conley, 32A01-1612-PL-2670, but the Indiana Court of Appeals affirmed the trial court’s decision. Specifically, Judge Elaine Brown wrote the evidence established Conley never failed to pay her rent on time and supported the trial court’s finding that at the time Conley exercised the option, King had not yet served her with notice of breach of the lease.
Brown further wrote the evidence supported the trial court’s findings that painting and changing the locks were not material breaches of the lease considering King did not suffer a significant loss and the alterations became part of the property, which Conley would retain if she exercised the option as she did.
The appellate court also upheld the grant of attorney fees and remanded the case for the determination of reasonable fees.
Criminal — Probation Fees
Adam Whitaker v. State of Indiana
A Marion County man found to be indigent is entitled to a reimbursement for the $740 in fees imposed on him by the probation department after the Indiana Court of Appeals found the Marion Superior Court abused its discretion by letting the probation department impose fees when it had not authorized such fees.
In Adam Whitaker v. State of Indiana, 49A02-1706-CR-1162, Adam Whitaker was found guilty of domestic battery and invasion of privacy, both as Class A misdemeanors. The Marion Superior Court found Whitaker indigent for fines and costs and wrote in its sentencing order that it was assessing $0 in fees against him.
However, a bond release memo from the probation department said Whitaker owed $740 for a bond paid by the Marion County Clerk’s Office. The request for the $740 to be transferred to the clerk’s office was approved, prompting Whitaker’s instant appeal.
On appeal, Whitaker argued it was erroroneous for the probation department to assess fees against him when the trial court did not impose fees as part of his probation order. Indiana Court of Appeals Judge Elaine Brown agreed, drawing on precedent from De La Cruz v. State, 80 N.E. 3d 210 (Ind. Ct. App. 2017), to support the appellate panel’s reversal of the imposition of fees on Whitaker.
“We stated that, ‘(a)lthough De La Cruz’ sentencing and probation orders referred to a ‘sliding scale for probation fees’ and the trial court ‘order(ed) probation, if there are any fees associated with non-reporting, to assess (De La Cruz’s) ability to pay,’ the trial court did not impose probation fees,’” Brown wrote of the De La Cruz holding. “We held that, ‘…the probation order included a ‘monetary obligations’ section with an ‘ordered amount’ column in which all the rows for specific fees were either blacked out or blank,’ and that ‘(s)uch a probation order, along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to impose such fees.’”
Similarly, because the trial court did not order probation fees, it abused its discretion when it authorized the probation department to impose the $740. Thus, the fees were reversed, and the case was remanded to reimbursement Whitaker.
Criminal — Hearsay Testimony
Nathaniel Thrash v. State of Indiana
Although a trial court was wrong in permitting two police officers to recount to a jury what the defendant’s ex-girlfriend told them, the Indiana Court of Appeals ruled the admission was a harmless error.
Nathaniel Thrash was convicted of two courts of resisting law enforcement, as a Class A misdemeanor, and as a Level 6 felony. He was arrested by two Indianapolis Metropolitan Police Department officers after his former girlfriend told them Thrash was in her apartment building, although he was not allowed to be there, and that she believed he had a pending warrant of arrest.
Before his trial, Thrash filed a motion to exclude the officers’ hearsay testimony regarding his ex-girlfriend’s statement about his pending warrant. His attorney argued that hearing about the warrant would be “too toxic” and lead the jurors to be assume Thrash must be guilty.
Marion Superior Court allowed the testimony but instructed the officers to say only that the girlfriend thought Thrash had a pending warrant. At trial, defense objected, and the court instructed the jury to only consider ex-girlfriend’s statement as an explanation as to why the officers went after Thrash.
On appeal, Trash argued the statements from the officers were inadmissible hearsay.
Referring to Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994) and Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003) trans. denied, the appellate court agreed the ex-girlfriend’s statement about the warrant had a prejudicial impact. Both officers could have limited their testimony to saying they were pursuing Thrash because she did not want him inside her apartment building.
However, the Court of Appeals ruled the error was harmless. The trial court instructed the jury to consider the officers’ statements solely as the motivation for their actions rather than as being a fact that Thrash had a pending warrant.
“Thrash makes no claim that the jury did not follow the trial court’s instructions,” Judge Patricia Riley wrote for the court. “Further, there was ample evidence to support Thrash’s two convictions of resisting law enforcement, such as refusing to remove his hands from his coat pockets, putting his hand underneath his body, and injuring an officer during the struggle. Thus, the erroneous admission of the statement regarding Thrash having a possible warrant was harmless.”•