Cheryl L McIntosh v. Roberta I McIntosh

• Court: Indiana Court of Appeals
• Decided: October 30, 2023
• Docket: 22A-PL-02522
• Status: Published

Opinion

FILED Oct 30 2023, 8:29 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES R. Patrick Magrath Larry W. Morrison Alcorn Sage Schwartz & Magrath, LLP Morrison Elder Law Madison, Indiana Morgantown, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jimmy A. McIntosh, and October 30, 2023 Cheryl McIntosh, Court of Appeals Case No. Appellants-Respondents, 22A-PL-2522 Appeal from the Jennings Circuit v. Court The Honorable Ryan J. King, Roberta I. McIntosh, and Special Judge Nilah K. Simmons as Power of Trial Court Cause No. Attorney for Roberta I. 40D01-2108-PL-105 McIntosh, Appellees-Petitioners.

Opinion by Judge Kenworthy Judges Crone and Felix concur.

Kenworthy, Judge.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 1 of 14 Case Summary [1] Jimmy and Cheryl McIntosh appeal the trial court’s judgment determining they

violated the Indiana Senior Consumer Protection Act (“SCPA”), 1 raising the

following issues for our review:

1. Are select trial court findings of fact and conclusions of law clearly erroneous?

2. Did the trial court apply the correct legal standard when determining Jimmy and Cheryl violated the SCPA?

3. Did the trial court improperly validate a warranty deed?

[2] We affirm.

Facts and Procedural History [3] At the time of trial, Roberta McIntosh was ninety-two years old. Around 2010,

she was diagnosed with dementia. Due to her illness, Roberta is “pretty sharp

sometimes and other times . . . she isn’t.” Tr. Vol. 2 at 82. During the trial,

Roberta explained she wanted her property to be split equally among her living

children but could not remember signing several legal documents.

[4] In 2017, Roberta fell twice, injuring herself both times. As a result, she needed

more intensive care once she returned home. Because none of Roberta’s other

1 Ind. Code ch. 24-4.6-6 (2013).

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 2 of 14 living children could provide this level of care, Jimmy—Roberta’s eldest son—

and his wife Cheryl stepped up. By December 2017, both Jimmy and Cheryl

had moved into Roberta’s home to assist her.

[5] Around January 2018, Jimmy attempted to draft a warranty deed conveying

ownership of Roberta’s home in Commiskey, Indiana, to him and his wife.

Although Roberta signed this deed, it was unrecordable because it lacked a

complete legal description of the property to be deeded. About two and one-

half years later, Jimmy turned to a professional for help. Attorney Bradley

Kage drafted a Quitclaim Deed transferring ownership of Roberta’s home to

Jimmy and Cheryl. Upon learning of the deed, Nilah Simmons—one of

Roberta’s daughters—informed Jimmy that Roberta did not want to sign the

Quitclaim Deed. After Jimmy was told this and that Roberta’s Will had been

lost, Nilah testified he got “very angry.” Id. at 48. As Roberta was sitting in a

chair, Jimmy stood over her, got in her face, and yelled “some pretty harsh

things to her.” Id. Jimmy told Roberta he would move out and the family

would put her in a nursing home if she did not sign her house over to him and

Cheryl. See id. at 48, 51. During this interaction, Roberta was “very stiff in her

chair trying to get away from [Jimmy], and [Jimmy] wouldn’t back away from

her.” Id. at 51. Nilah described the situation as “pretty scary.” Id.

[6] On September 2, 2020, Jimmy and Cheryl took Roberta to Attorney Kage’s

office and the parties executed the Quitclaim Deed. The next day, Jimmy took

the deed to the recorder’s office to be recorded. That said, the Jennings County

Recorder’s Office did not record the Quitclaim Deed until November 2, 2020.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 3 of 14 [7] Approximately a week after Roberta signed the Quitclaim Deed, she executed a

Last Will and Testament. Then, on September 24, 2020, Roberta executed a

Power of Attorney naming Nilah as her attorney in fact. And on October 9,

2020, Roberta executed a Warranty Deed. This Deed granted Roberta a life

estate in her home and split the remainder equally among her living children.

Nilah brought Roberta’s Power of Attorney and the Warranty Deed to the

Jennings County Recorder’s Office to be recorded. Unbeknownst to Nilah, the

Power of Attorney was not properly recorded. After Attorney Kage informed

Nilah of this mistake, Nilah had the Power of Attorney properly recorded on

April 19, 2021.

[8] On August 10, 2021, Roberta and Nilah—as Roberta’s attorney in fact—filed a

Petition to Quiet Title. The Petition alleged, among other things, Jimmy and

Cheryl violated the SCPA and “either by mistake or error,” the Jennings

County Recorder’s Office failed to record Roberta’s Power of Attorney. See

Appellant’s App. Vol. 2 at 14–16. Following a bench trial, the trial court entered

specific findings of fact and conclusions of law. The trial court determined

Jimmy and Cheryl violated the SCPA, Nilah filed Roberta’s Power of Attorney

in “substantial compliance” with statutory requirements, the Quitclaim Deed of

November 2, 2020, was void, and the Warranty Deed of October 9, 2020, was

the legally controlling instrument. Id. at 171. The trial court ordered Jimmy

and Cheryl to pay Roberta’s court costs and attorney’s fees totaling $8,050.

Jimmy and Cheryl now appeal. Additional facts are provided when necessary.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 4 of 14 1. The Challenged Findings of Fact are Not Clearly Erroneous [9] Jimmy and Cheryl argue several of the trial court’s findings of fact are clearly

erroneous.2 When, as here, the trial court issues special findings of fact and

conclusions of law sua sponte under Indiana Trial Rule 52(A), we apply a “two-

tiered standard of review—first determining whether the evidence supports the

findings and, if so, whether the findings support the judgment.” Town of Linden

v. Birge, 204 N.E.3d 229, 233 (Ind. 2023). “Any issue not covered by the

findings is reviewed under the general judgment standard, meaning a reviewing

court should affirm based on any legal theory supported by the evidence.”

Steele-Giri v. Steele, 51 N.E.3d 119, 123–24 (Ind. 2016).

[10] “We ‘shall not set aside the findings or judgment unless [they are] clearly

erroneous,’ and we must give ‘due regard . . . to the opportunity of the trial

court to judge the credibility of the witnesses.’” Wysocki v. Johnson, 18 N.E.3d

600, 603 (Ind. 2014) (quoting T.R. 52(A)). “Findings of fact are clearly

erroneous only when they have no factual support in the record, and a

judgment is clearly erroneous if it applies the wrong legal standard to properly

found facts[.]” Id. at 603–04 (quotation and citations omitted). A finding or

conclusion is clearly erroneous if we have a “firm conviction that a mistake has

been made.” Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005) (quoting Yanoff

2 Jimmy and Cheryl also contend some conclusions of law are clearly erroneous because the trial court applied the incorrect legal standard. For clarity’s sake, we will address these arguments in Section 2 of this opinion.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 5 of 14 v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). When a party does not

challenge the trial court’s findings, we must accept them as correct. See Madlem

v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

Findings 3(d), 3(e), and 3(f)

[11] Jimmy and Cheryl argue the following findings are clearly erroneous:

d. Jimmy McIntosh told Roberta McIntosh that she would have to be placed in a nursing home if she did not sign the property over to he [sic] and Cheryl.

e. Jimmy McIntosh would yell in Roberta McIntosh’s face. Jimmy McIntosh testified he got so close to Roberta McIntosh’s face and yelled because she had difficulty hearing. Roberta McIntosh was able to hear and answer questions asked in the hearing by both attorneys. When asking questions, the attorneys were positioned three (3) to five (5) feet away from her. Roberta does have difficulty hearing consistent with her age.

f. The Court finds that Roberta McIntosh would have been intimidated by someone yelling in her face, even if that person believed that somehow that was necessary and/or appropriate. This behavior was tantamount to coercion, undue influence, deception, and intimidation.

Appellant’s App. Vol. 2 at 158.

[12] At trial, Nilah testified Jimmy stood over Roberta, yelled at her, and threatened

to put her in a nursing home if she did not sign the property over to him and his

wife. Nilah described Roberta’s frightened reaction to Jimmy’s behavior.

Jimmy and Cheryl contend Nilah’s testimony was “contradicted by every other Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 6 of 14 witness who” viewed the interaction; thus, in their view, these findings are

clearly erroneous. Appellant’s Br. at 14. This is merely a request to reweigh

evidence and judge witness credibility; tasks we cannot undertake. See Wysocki,

18 N.E.3d at 603. These findings are adequately supported by the record and

are not clearly erroneous.

Finding 3(k)

[13] Next Jimmy and Cheryl challenge Finding 3(k), which reads:

k. Until Jimmy and Cheryl McIntosh asked Nilah Simmons to take Roberta McIntosh to sign the Quit Claim Deed, no one had been informed that Jimmy and Cheryl were currently trying to get Roberta McIntosh to sign the property over to them.

Appellant’s App. Vol. 2 at 158–59. At bottom, Jimmy and Cheryl challenge the

finding because it “implies that the fact that Roberta was going to transfer the

property to Jimmy and Cheryl was kept secret.” Appellant’s Br. at 16.

[14] Although Jimmy testified that he informed all his siblings about his and

Cheryl’s efforts to have Roberta sign over her property to them, several other

family members testified they had never talked with Jimmy about his plans.

The trial court was not required to accept Jimmy’s self-serving testimony. And

again, we may not reweigh evidence or judge witness credibility for ourselves.

This finding is not clearly erroneous.

Finding 3(n)

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 7 of 14 [15] Finding 3(n) provides:

n. Jimmy and Cheryl McIntosh prevented other family members from visiting Roberta McIntosh privately.

Appellant’s App. Vol. 2 at 159. Although Nilah met with Roberta privately,

several other family members testified they could not speak one-on-one with

Roberta when they visited her. Tr. Vol. 2 at 68, 73. Because this finding has

factual support in the record, we cannot say it is clearly erroneous.

Finding 3(o)

[16] Lastly, Jimmy and Cheryl challenge Finding 3(o), which reads:

o. In January 2021, Jimmy and Cheryl McIntosh moved out of Roberta McIntosh’s residence. Just two (2) months after recording the Quit Claim Deed.

Appellant’s App. Vol. 2 at 159. In effect, Jimmy and Cheryl argue the record

shows they “did not leave voluntarily but under threat of arrest.” Appellant’s Br.

at 17. Regardless, the trial court’s finding is silent on the reason for Jimmy and

Cheryl’s departure. At its core, the finding has factual support in the record.

Jimmy recorded the Quitclaim Deed in November 2020, and he and his wife

concede they moved out of Roberta’s home in January 2021. See Appellant’s Br.

at 17. This finding is not clearly erroneous.

2. The Trial Court Applied the Incorrect Legal Standard; Nonetheless, the Trial Court’s Findings Adequately Support the Judgment

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 8 of 14 A. The Correct Standard Under the SCPA is a Preponderance of the Evidence

[17] Jimmy and Cheryl contend the trial court applied the incorrect legal standard

when it found they violated the SCPA. More specifically, Jimmy and Cheryl

argue it is inappropriate to apply the burden-shifting paradigm used in some

undue influence cases to private actions under the SCPA because the SCPA

contains damage and penalty provisions not available in a common-law undue

influence action. See Appellant’s Br. at 19. We agree.

[18] Although we “defer substantially to findings of fact, we do not do so to

conclusions of law.” Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210

(Ind. 2000). Rather, we review the trial court’s conclusions of law de novo.

Town of Linden, 204 N.E.3d at 234. A judgment is clearly erroneous if it applies

the wrong legal standard to properly found facts. Wysocki, 18 N.E.3d at 604.

[19] Effective July 2013, the SCPA is designed to “simplify, clarify, and modernize

the law concerning the ownership, control, and use of property or assets of

senior consumers” and to “protect senior consumers from financial exploitation

from persons, who by deception or intimidation, obtain control over the

property or assets of a senior consumer.” 3 I.C. § 24-4.6-6-2(b). A person

commits financial exploitation of a senior consumer—thereby violating the

SCPA—when the person “knowingly and by deception or intimidation obtains

3 Under the SCPA, an individual who is at least sixty years old qualifies as a “senior consumer.” I.C. § 24- 4.6-6-3(5). Roberta—around ninety years old when the alleged violation occurred—is a senior consumer.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 9 of 14 control over the property of a senior consumer or illegally uses the assets or

resources of a senior consumer.” 4 I.C. § 24-4.6-6-4(a) (emphases added).

Relevant to the claim here, Indiana Code Section 24-4.6-6-3(2) defines

“intimidation” as “the conduct or communication by a person directed toward

a senior consumer informing or implying to the senior consumer that the senior

consumer will be deprived of food and nutrition, shelter, prescribed medication,

or medical care and treatment if the senior consumer does not comply with the

person’s demands.”

[20] A senior consumer who is the victim of “financial exploitation” may bring a

civil action against the person or persons who commit the unlawful act. See

I.C. § 24-4.6-6-5(a). To recover, the senior consumer must prove—by a

preponderance of the evidence—a person financially exploited him or her. I.C. §

24-4.6-6-5(e).

[21] Here, the trial court relied, in part, on common law undue influence principles

to determine Jimmy and Cheryl violated the SCPA. Citing Carlson v. Warren,

the trial court found Jimmy and Cheryl each had a confidential relationship

with Roberta as a matter of law. Appellant’s App. Vol. 2 at 168–69 (citing 878

4 Indiana Code Section 24-4.6-6-4(b) provides: “The illegal use of the assets or resources of a senior consumer includes, but is not limited to, the misappropriation of those assets or resources by undue influence, breach of a fiduciary relationship, fraud, deception, extortion, intimidation, or use of the assets or resources contrary to law.” (emphasis added). The Petition to Quiet Title, however, did not allege Jimmy and Cheryl illegally used Roberta’s assets or resources. Instead, the Petition contends Jimmy and Cheryl violated the SPCA by obtaining control over Roberta’s property by intimidation. Therefore, reliance on terms included in the statutory definition of illegal use, like undue influence, is misplaced.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 10 of 14 N.E.2d 844, 851 (Ind. Ct. App. 2007)). Going further, the trial court presumed

Jimmy and Cheryl exerted undue influence over Roberta. Id. at 169 (“[W]hen a

[confidential relationship as a matter of law] exists and the fiduciary benefits

from a questioned transaction, a presumption of undue influence arises and the

burden shifts to the fiduciary to rebut the presumption.”) (quoting Carlson, 878

N.E.2d at 851). Presuming undue influence, the trial court shifted the burden

to Jimmy and Cheryl to prove by clear and convincing evidence the Quitclaim

Deed was “completed in a fair and equitable manner.” Id. at 170. Concluding

Jimmy and Cheryl did not meet their burden, the trial court invalidated the

Quitclaim Deed, finding it was obtained in violation of the SCPA. We believe

the trial court clearly erred by shifting the burden of proof to Jimmy and

Cheryl.

[22] Roberta and Nilah did not bring a common-law undue influence action.

Instead, they alleged a violation of the SCPA. And Indiana Code Section 24-

4.6-6-5(e) sets forth the burden of proof applicable to a private action brought

under the SCPA—a preponderance of the evidence. By shifting the burden to

Jimmy and Cheryl to rebut a presumption of undue influence by clear and

convincing evidence, the trial court applied the wrong legal standard and clearly

erred. See Wysocki, 18 N.E.3d at 604.

B. Applying the Correct Legal Standard, the Trial Court’s Findings Support Its Judgment

[23] Although the trial court applied the incorrect legal standard to make some of its

conclusions of law, our review is not complete. Rather, we must determine

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 11 of 14 whether the trial court’s findings support its judgment that Jimmy and Cheryl

violated the SCPA under the appropriate burden of proof. Stated another way,

based on the allegations in the Petition to Quiet Title, Roberta’s claim under the

SCPA succeeds if she can prove—by a preponderance of the evidence—Jimmy

and Cheryl knowingly and by intimidation obtained control over her property.

[24] The evidence presented at trial established Roberta was ninety-two years old

and suffered from dementia. The trial court heard testimony about two

instances of Jimmy yelling in Roberta’s face. During one instance, Jimmy

stood over Roberta while she was seated and threatened to put her in a nursing

home if she did not sign over her property to him and Cheryl. Nilah, a witness

to this incident, described this mother-son interaction as “pretty scary” and

noted Roberta was “very stiff in her chair trying to get away from [Jimmy], and

[Jimmy] wouldn’t back away from her.” Tr. Vol. 2 at 51. The trial court’s

findings support a judgment that Jimmy and Cheryl obtained control over

Roberta’s property knowingly and by informing or implying to Roberta she

would be deprived of her shelter and the care she received from Jimmy and

Cheryl if she did not comply with their wishes—i.e., by intimidation. See I.C. §

24-4.6-6-3(2). Thus, we affirm the trial court’s finding that Jimmy and Cheryl

violated the SCPA. 5

5 Upon finding Jimmy and Cheryl violated the SCPA, the trial court ordered the pair to pay Roberta’s court costs and attorney’s fees. Indiana Code Section 24-4.6-6-5 sets forth several remedies a trial court may provide a senior consumer who is a victim of financial exploitation. Among the options available are

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 12 of 14 3. The Trial Court Did Not Err by Validating the Warranty Deed

[25] Jimmy and Cheryl contend the trial court erred by finding the October

Warranty Deed valid because it was recorded before Roberta’s Power of

Attorney. Essentially, Jimmy and Cheryl contend substantial compliance with

the requirements of Indiana Code Section 30-5-3-3 is not sufficient.

[26] Generally, an attorney in fact may act under a power of attorney without

recording the power of attorney with the county recorder. See I.C. § 30-5-3-3(a).

But an attorney in fact must record a power of attorney authorizing the

execution of a document that must be recorded—e.g., a deed—before presenting

that document for recording. I.C. § 30-5-3-3(b). A county recorder may not

accept a document for recording if the document was “executed . . . and is

presented . . . by an attorney in fact whose power of attorney is unrecorded.”

I.C. § 30-5-3-3(c). And a document presented by an attorney in fact for

recording must “reference the book and page or instrument number where the

instrument creating the power of attorney is recorded before the document may

be presented by the attorney in fact.” I.C. § 30-5-3-3(e).

[27] The parties agree these statutory requirements were not met. Roberta’s Power

of Attorney naming Nilah as her attorney in fact was not recorded until April

19, 2021—about six months after Nilah first attempted to record the Power of

reasonable attorney’s fees. See I.C. § 24-4.6-6-5(d). Accordingly, we affirm the trial court’s monetary judgment in the amount of $8,050 in favor of Roberta against Jimmy and Cheryl.

Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 13 of 14 Attorney and Warranty Deed. But what more was Nilah to do? Nilah brought

both the Power of Attorney and the Warranty Deed to the Jennings County

Recorder’s Office on October 9, 2020. Nilah presented both documents to the

Recorder’s Office and left believing she had taken all the steps necessary to have

each document properly recorded. Once Attorney Kage informed her that the

Recorder had failed to properly record the Power of Attorney, Nilah returned to

the Recorder’s Office within days to correct the error. As the trial court found,

Nilah “performed all acts necessary to appropriately record the Warranty Deed

and continued to fulfill her duties as Power of Attorney once notified that there

had been a mistake.” Appellant’s App. Vol. 2 at 166. The trial court also

explained the Recorder’s Office failed to properly record the Power of Attorney

due to “oversight, mistake, or error.” Id. at 167. Put another way, we discern

no fault by Nilah and conclude—based on the circumstances of this case—she

took all necessary steps to comply with the statutory requirements. Thus, the

trial court did not err by validating the Warranty Deed dated October 9, 2020.

Conclusion [28] Although the trial court, in part, applied the incorrect legal standard, sufficient

findings support the trial court’s determination that Jimmy and Cheryl violated

the SCPA. And the trial court did not err by validating the Warranty Deed

executed October 9, 2020. Accordingly, we affirm.

[29] Affirmed.

Crone, J., and Felix, J., concur. Court of Appeals of Indiana | Opinion 22A-PL-2522 | October 30, 2023 Page 14 of 14