Indiana Court decisions – April 8-21, 2021

7th CircuitCourt of Appeals

April 9

Criminal — Felony Murder/Evidence

Tanika Stewart v. State of Indiana

20A-CR-1809

A woman convicted of murdering a man who was harassing her failed to convince the Indiana Court of Appeals that she was acting in self-defense or that the trial court erred in making evidentiary decisions.

The case of Tanika Stewart v. State of Indiana, 20A-CR-1809, began in October 2019, when Antonio Bushrod and Tanika Stewart attended a house party in Evansville. One of the hosts, Maurice McRae, testified that the men at the party were being rough toward the women and Bushrod, in particular, was being disrespectful.

Indeed, Stewart and Bushrod joked and playfully roughhoused for a while, but when Stewart rejected his sexual advances, Bushrod began to verbally harass her and grope her. Later, Bushrod and his friends began bullying, smothering, harassing and groping Stewart, who was telling the men to back up and stop touching her.

Stewart then went to the car to retrieve her handgun before returning to the group on the porch and threatening her harassers with the gun. Bushrod struck her in the face, and she shot him in the chest.

When police arrived, Stewart confessed and surrendered the gun. Bushrod later died at a hospital from gunshot wounds.

Stewart was charged with felony murder, enhanced for the use of a firearm. Police had retrieved surveillance video from neighbors that depicted the shooting and the events surrounding it, but Stewart filed a motion in limine to exclude the video for poor quality. The Vanderburgh Circuit Court eventually denied that motion during the January 2020 trial.

Also during the trial, Stewart testified in her own defense, claiming she was afraid of being raped or struck. She also tried to recount Bushrod’s “very aggressive” statements to her, but the trial court sustained an objection to those statements on hearsay grounds.

The jury was instructed on sudden heat, self-defense and voluntary manslaughter, but Stewart was convicted of felony murder and pleaded guilty to the enhancement. She was sentenced to serve 55 years in the Department of Correction.

Stewart challenged the trial court’s evidentiary rulings on appeal, first claiming the surveillance video was erroneously admitted. However, the Court of Appeals determined that argument was waived as to one video, state’s exhibit 34, because she did not object at trial and did not raise a fundamental error claim.

As for the remaining videos, state’s exhibits 43, 44 and 45, the appellate panel agreed with Stewart that “the viewer cannot definitively identify any of the persons depicted; however, we find the videos have some relevancy despite their quality and limited depictions.”

Specifically, viewers could discern an individual approaching a dark sedan belonging to Stewart, leaning into the vehicle then emerging without fully entering it. The person then walks back to the party, and a bright flash appears.

“The footage bolsters McRae’s testimony that Stewart left the porch, retrieved her gun from her vehicle, returned to the porch, where she brandished the weapon and shot Bushrod,” Judge Elizabeth Tavitas wrote. “Accordingly, we conclude that the videos were relevant and that the trial court did not abuse its discretion by admitting them.”

Further, even if the videos were admitted in error, the error was harmless “(i)n light of the considerable evidence of Stewart’s guilty, including her on-scene admission of guilt and McRae’s testimony … .”

The COA also upheld the exclusion of testimony about Bushrod’s statements to Stewart, finding that claim was waived because Stewart did not make an offer of proof.

Waiver notwithstanding, the panel agreed with Stewart that the statements were improperly excluded because “in attempting to introduce Bushrod’s statements, Stewart did not seek to prove their truth; rather, Stewart sought to shed insight into her own state of mind — she was fearful and wanted to establish her perceived justification for shooting Bushrod and to support her self-defense claim.” Even so, the error was harmless in light of the other corroborating evidence.

Finally, Stewart argued the state failed to sufficiently rebut her self-defense claim. The Court of Appeals disagreed.

“McRae testified that, after Bushrod and his friends groped, taunted, and hit Stewart on the porch, Stewart was able to leave the group of men. McRae observed as Stewart went to her vehicle, retrieved her firearm, and returned to the porch, where the men resumed their aggression toward her. Bushrod then struck Stewart, and minutes later, Stewart shot Bushrod,” Tavitas wrote.

“… Bushrod’s behavior was, no doubt, reprehensible, and it is undisputed that he struck Stewart’s face. We find, however, that under the circumstances of this case, Stewart was not justified in her use of deadly force.”

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April 13

Civil — Habeas/Remand for Resentencing

Roderick V. Lewis v. Dushan Zatecky

20-1642

A convicted murderer who during sentencing received “literally no assistance from his lawyer” won resentencing after a majority of a 7th Circuit Court of Appeals panel reversed the denial of his habeas petition. A dissenting judge, however, opined that the majority’s holding improperly expands U.S. Supreme Court precedent.

Judge Diane Wood wrote for the majority joined by Chief Judge Diane Sykes in Roderick V. Lewis v. Dushan Zatecky, 20-1642. Judge Michael Brennan dissented from the grant of habeas relief to Roderick Lewis.

Lewis was arrested in 2011 in connection with the 1999 murders of 14-year-old Sidney Wilson and 16-year-old Richard Rogers. Rogers and Wilson were running a Fort Wayne drug house when Lewis, Christopher Hale and Kajuanta Mays devised a robbery plan that ended in the murders. Lewis did not pull the trigger in either murder but was present and had his uncle bury the murder weapon.

Lewis was represented by now-retired attorney Jeff Raff during his murder trial, where Lewis was convicted on two counts of felony murder. During sentencing, Raff made just one remark: “Judge, I’m going to defer to Mr. Lewis if he has any comments. I don’t have anything to add.” Lewis was then sentenced to the maximum 130 years.

Lewis’ direct appeal failed, so he proceeded to post-conviction relief proceedings, where Raff testified that he did not research Lewis’ mental health history, which included a suicide attempt, and he did not speak to his relatives or friends.

“Essentially Raff thought that Lewis was a hopeless cause, and so there was nothing useful Raff could do,” Wood wrote.

Back at the Indiana Court of Appeals, a panel agreed with Lewis that Raff was deficient but determined the deficiency was not prejudicial. The COA addressed Lewis’ PCR argument under Strickland v. Washington, 466 U.S. 668 (1984), but Lewis argued, and the 7th Circuit majority agreed, that the proper review was under United States v. Cronic, 466 U.S. 648 (1984).

Lewis next sought habeas relief in the Indiana Southern District Court, but his petition was denied, prompting the instant appeal.

“We conclude that the decision of the last responsible state court was contrary to Supreme Court precedent, insofar as it held that Strickland, not Cronic, furnished the applicable rule, and it was an unreasonable application of Cronic, insofar as it focused on that case,” the majority held.

“… Although it is possible, as the Supreme Court itself did in Cronic and as the district court did here, to identify particular circumstances in which the Cronic rule will apply, we must take the Court at its word when it says that it is simply offering illustrations of the rule announced by the Court,” Wood wrote. “… Instead, ‘state courts must reasonably apply the rules squarely established by [the Supreme Court]’s holdings to the facts of each case.’

“… As applied here, that means that we must pay heed to Cronic’s core holding: that a showing of prejudice is not necessary in ‘situations in which counsel has entirely failed to function as the client’s advocate.’

Specifically, Cronic held that three “circumstances … are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Those circumstances include a “complete absence of counsel at a critical stage of the trial,” counsel’s “total failure” to engage in a meaningful adversarial test of the prosecution’s case, and other circumstances where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

Finding that Lewis’ sentencing was a “critical stage” of his trial, the majority held that Raff’s “assistance” during trial “was nothing but a statement that he was bowing out.”

“If Raff was going to fall back to a plea for mercy, or an effort to convince Lewis to demonstrate remorse, he had to take some step in that direction. He did not,” the majority concluded. “Instead, he gave up on Lewis and left him entirely without the assistance of counsel at the sentencing stage of a felony murder case. Rare though Cronic cases may be, we think that this one qualifies.

“We therefore REVERSE the judgment of the district court and REMAND this case for the issuance of a writ of habeas corpus, limited to the sentencing phase of petitioner Roderick Lewis’s case.”

But in a decent nearly equal in length to the majority opinion, Brennan said his review of Lewis’ habeas petition ends with the Antiterrorism and Effective Death Penalty Act of 1996.

“Cronic’s scope is narrow, AEDPA review is narrow, and AEDPA review of a Cronic case is especially narrow,” Brennan wrote. “Bound by AEDPA, I would reject Lewis’s habeas petition because no Supreme Court case has applied Cronic to the novel circumstances presented by his claim. I respectfully dissent.

Brennan’s dissent focused on Schmidt v. Foster, where he said the 7th Circuit endorsed the understanding that Cronic should be read narrowly and applied rarely.

“According to the majority opinion, Schmidt differs in its ‘critical stage’ and ‘degree of help that counsel offered.’ … But Schmidt’s relevance here is in its mode of analysis,” he wrote. “That en banc decision teaches three lessons about Cronic: it is narrow in its rule, it gives state courts ‘broad discretion’ in adjudicating the application of its exceptions, and it has three — and only three — exceptions.”

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Indiana Supreme Court

April 7 (posted on IL Daily April 8)

Certified Question — Negligence/Retail Manager Liability

David Branscomb and Tammy Branscomb v. Wal-Mart Stores East, L.P. and James Clark

20S-CQ-515

In answering a certified question from a federal judge, the Indiana Supreme Court held that store managers who are not directly involved in a patron’s injury on store property cannot be held liable for negligence under Indiana law.

The high court answered the certified question from the U.S. District Court for the Northern District of Indiana in David Branscomb and Tammy Branscomb v. Wal-Mart Stores East, L.P. and James Clark, 20S-CQ-515.

The underlying personal injury case began in 2019, when David Branscomb tripped and fell over a wooden pallet in the garden department of a Huntington Walmart. Branscomb was injured, and he and his wife, Tammy, sued Walmart for damages in state court.

The Branscombs brought specific allegations against store manager Jim Clark, including claims for failure to properly hire, train and supervise employees, failure to have and/or implement proper safety policies and procedures, and failure to properly inspect and maintain the property in a safe condition.

Walmart sought to remove the case to federal court, alleging a fraudulent joinder in that Clark, as an Indiana resident, “was added solely to defeat federal diversity jurisdiction.” The company argued Clark was not working or physically present at the store on the day of the accident, and he “[does] not have the individual discretion to unilaterally determine safety policies or procedures for the store, but rather [is] given and follow[s] the directives and instructions by managers from higher up the Wal-Mart corporate ladder.”

Finding no clear precedent on the issue, Judge Holly Brady of the Indiana Northern District issued an order seeking the Indiana Supreme Court’s guidance on whether Clark could be liable as a defendant when he was not directly involved in Branscomb’s injuries. After accepting the certified question, Justice Steven David wrote for the unanimous court that the Branscombs cannot recover on any of their claims against Clark.

David noted first that the tort of negligent hiring, training and supervision should be pled against an employer, referencing Sedam v. 2JR Pizza Enterprises, LLC, 84 N.E.3d 1174 (Ind. 2017). Also, the tort does not apply when the tortfeasor is acting within the scope of their employment.

Thus, “Clark, an employee of Wal-Mart, cannot himself be liable to Plaintiffs under a theory of negligent hiring, training and supervision because he is not the employer and there is no indication or allegation that the pallet that caused Plaintiffs’ injuries was placed by an employee acting outside the scope of his employment,” David wrote.

Further, the Branscombs did not offer evidence to counter Clark’s statement that he did not have discretion to unilaterally determine safety policies, so they cannot recover from him on their claim for failure to have and/or implement safety policies.

But the “meat and potatoes” of the case, David wrote, was the claim against Clark for failure to inspect and maintain the property. The court ultimately ruled in Clark’s favor, finding that under the Restatement (Second) of Torts, Clark did not possess the land and was not “delegated sufficient control over the premises as to owe them a duty of care … .”

“Next, even assuming Clark is a person who has been ‘in occupation of land with intent to control it,’ it cannot be said that ‘no other person has subsequently occupied it with intent to control it’ as Wal-Mart will retain some ultimate control and in Clark’s absence someone else was in charge of the store,” David wrote. “Finally, the third option listed in the Restatement involving future entitlement to occupy the land cannot apply to Clark if someone else is entitled to occupy the land with intent to control it either.

“While Indiana case law does not explicitly provide (1) that a big box store can never delegate the duty of care to keep the store safe to a manager or (2) that the duty of care cannot be shared between the store and the manager, it seems that both are true based on the language of the Restatement and the reality that Wal-Mart itself has the right to come in and control the premises,” the justice continued. “And, importantly, there is no indication that Wal-Mart gave over control to Clark at any point.”

That position is supported by case law such as Bartholomew Cnty. v. Johnson, 995 N.E.2d 666, 675 (Ind. Ct. App. 2013), and Brazil Block Coal Co. v. Young, (1889), 117 Ind. 520, 20 N.E. 423, David said. However, he distinguished the case of Marshall v. Erie Ins. Exch., 923 N.E.2d 18 (Ind. Ct. App. 2010), aff’d on reh’g.

“The record before us does not reflect that Clark took over control of the Wal-Mart premises nor does it reflect that anyone, including the Branscombs, relied specifically on him to ensure the store was safe. Also, Clark’s position as store manager cannot, without more, subject him to liability,” the court held. “… While Clark maintaining the store for the benefit of Walmart may also benefit store patrons, Clark owed the duty to Wal-Mart, not store patrons, absent more. On this record, there is nothing more to make Clark liable to Plaintiffs.”

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Indiana Court of Appeals

April 8

Miscellaneous — Grandparent Visitation/Child Awaiting Adoption

Jennifer Romero and Azael Romero v. Jessica McVey, et al.

20A-MI-1983

Ruling in a case presenting “somewhat unusual circumstances,” the Indiana Court of Appeals reversed the denial of a petition for grandparent visitation, finding the trial court had erred in determining the visitation would not be in the granddaughter’s best interests. The appeals court remanded for proceedings to establish a grandparent visitation order in the case.

J.I. is an 18-month-old whose mother consented to her adoption by the child’s aunt, Jessica McVey, after the Department of Child Services determined the baby was a child in need of services due to mother’s drug abuse problems. Her whereabouts are unknown, and the child’s father is serving a child molesting sentence in the Department of Correction.

Jennifer and Azael Romero, the paternal grandmother and step-grandfather, petitioned for visitation and moved to intervene in the CHINS proceeding. DCS and the court appointed special advocate for J.I. objected, even though DCS had authorized grandparent contact throughout the proceedings.

Indeed, McVey “testified that she supports J.I.’s relationship with other members of the Romero family and would not attempt to ‘terminate any . . . family connections,’” Judge Robert Altice wrote for the panel in Jennifer Romero and Azael Romero v. Jessica McVey, et al., 20A-MI-1983.

“McVey also explained that J.I. ‘needs as many people as she potentially can have loving her and encouraging her.’ … Notwithstanding Grandparents’ concern, McVey characterized J.I.’s relationship with Grandparents as ‘healthy,’ and acknowledged that she planned to continue J.I.’s visits with Grandparents on a regular basis.”

The Tippecanoe Superior Court denied the visitation petition, finding among other things that the circumstances in this case were unusual, that decisions regarding visitation were best left to McVey and that she would restrict the grandparents’ contact with the child after her adoption, which is still pending.

The COA reversed, noting the predicament the grandparents face in this case, despite the good intentions of the parties involved.

“While McVey is J.I.’s caretaker, she is not her legal parent. And even assuming that relevant documents have been filed to begin the adoption process, McVey has no fundamental right with respect to J.I. at this time because no adoption has occurred,” Altice wrote. “Our statutes contemplate that it is the trial court’s duty to determine what is in the best interests of a child, as Grandparents are at risk of losing all rights and visitation with J.I. if the adoption occurs.

“… It was established that J.I., who is almost two years old, is forming bonds and relationships with the people who love her. Grandparents have had consistent and meaningful contact with J.I. to the extent that DCS and McVey have permitted, and it is apparent from this record that Grandparents are acting in J.I.’s best interests. As a result, the evidence presented at the hearing and the trial court’s findings do not support the determination that court-ordered visitation would not be in J.I.’s best interests,” the panel ruled.

“We therefore conclude that the denial of Grandparents’ petition for visitation was clearly erroneous. We reverse and remand with instructions that the trial court conduct further proceedings as necessary to determine the appropriate amount of Grandparent visitation and enter a decree establishing said visitation.”

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April 12

Criminal — Child Molesting/Reversal of Order to Quash Deposition

Jeffrey Archer v. State of Indiana

20A-CR-1677

An alleged child molesting victim must be deposed by her alleged molester’s defense team again, the Indiana Court of Appeals has ruled, finding the defendant is entitled to take a second deposition for a new trial.

In Jeffrey Archer v. State of Indiana, 20A-CR-1677, Jeffrey Archer was convicted of Class A felony child molesting and two counts of Class C felony child molesting of L.B., his step-grandchild. Archer’s convictions were upheld on direct appeal in 2013, and the Marion Superior Court subsequently denied his petition for post-conviction relief.

Archer appealed that ruling as well, and after initially upholding the denial, the COA on rehearing reversed and remanded for further proceedings. The court’s opinion on rehearing reexamined Archer’s argument that his appellate counsel was ineffective for failing to argue on direct appeal that an obviously biased juror who had been challenged was permitted to serve on Archer’s jury.

As Archer began to prepare for a new trial on remand, his new lawyer informed the state that she needed to depose L.B., who is now almost 18 years old. The state objected, noting L.B. was deposed for the first trial. The trial court granted a motion to quash.

The COA reversed on interlocutory appeal, with Senior Judge Carr Darden noting “Archer continues to face very serious charges with new counsel who is entitled to develop her own theories and strategies about defending her client.”

Using the three-part test under Dillard v. State, 257 Ind. 282, 274 N.E.2d 387 (1971), the appellate panel ruled that “the State did not meet its showing of a paramount interest in non-disclosure … .”

The panel determined Archer’s request to depose L.B. had requisite particularity. Further, as to relevance, the COA held that “it would be unfair to prohibit Archer’s new trial counsel from discovering what L.B. remembers and the language she uses today to describe the events of more than seven years ago. Further, her belief structures regarding the concepts of ‘good touch/bad touch,’ may or may not be different from the pertinent time period.”

“We also observe notions of fundamental fairness,” Darden wrote. “It would be unfair to the defendant to limit him to a defense strategy, poorly or well-formed, that was adopted to address a victim aged eight or nine, when that victim will be testifying in his new trial from the life experience of a nearly grown adult.”

Finally, the panel ruled, the state failed to meet the third step of Dillard: proving a paramount interest in non-disclosure.

“On balance, given the sentencing exposure of the defendant – between 20 and 50 years – versus the uncomfortable feeling of having to be deposed (similarly experienced by most deponents) and testifying, this record weighs in favor of granting trial counsel’s request to depose L.B.,” Darden wrote. “As the alleged victim, L.B.’s testimony will be the centerpiece of the State’s case-in-chief. Under the circumstances of this case, the defendant should be allowed to discover what her presented testimony will be and prepare his defense accordingly.

“The trial court retains the authority to ensure that the deposition addresses relevant issues and is not unduly burdensome to the deponent,” the senior judge added.

The case was remanded for further proceedings.

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April 13

Civil Plenary — Employment/Motion for Mistrial or New Trial

Randy C. Axelrod, M.D. v. Anthem, Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc.

19A-PL-1171

A jury verdict against a fired Anthem Inc. executive will stand after the Indiana Court of Appeals declined to overturn the denial of the former insurance exec’s requests for a new trial.

Dr. Randy Axelrod began working for Anthem in 2003 as its vice president and general manager of healthcare management for the insurer’s Southeast Region. Anthem became known as WellPoint after a merger, and Gloria McCarthy was named the chief operating officer of WellPoint’s East Region. McCarthy selected Axelrod as her vice president for healthcare management, and he began working with McCarthy in January 2006.

Around the same time, Axelrod began working with a team at WellPoint to develop a special fee schedule for various drugs including Aranesp, a drug manufactured by Amgen, and Procrit, a drug manufactured by Ortho-Biotech. The schedule encouraged physicians to prescribe Procrit over Aranesp, and WellPoint decided to bar coverage for Aranesp unless an insured patient was allergic to Procrit. Meanwhile, Axelrod was scheduled to testify in Ortho-Biotech’s case for an injunction in an antitrust lawsuit against Amgen.

However, McCarthy began to complain about Axelrod’s job performance, and other members of the WellPoint team complained to McCarthy about him. Axelrod also complained about difficulties working with McCarthy. He was fired in July 2006.

Axelrod filed suit in October 2007 against Anthem and WellPoint, later adding Amgen as a defendant. A “prolonged and complex discovery battle” began that included more than 1 million items. There were also disputes over witnesses and subpoenas.

The 20-day jury trial began in July 2017, but a Marion County jury returned a defense verdict after just 43 minutes. Axelrod unsuccessfully moved for a mistrial or a new trial, and his motions to correct error and/or for relief from judgment were denied.

Axelrod appealed, arguing the trial court misapplied Indiana Trial Rule 60(B)(3). Relying on Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006), he argued “the court misapplied Rule 60(B)(3) by erroneously requiring him to show (1) a different result would have occurred, (2) clearly opposite evidence, (3) misconduct involving undoubtedly duplicitous or clearly malicious intent, and (4) clear misconduct or fraud or other subterfuge.”

But “Axelrod could not make a showing to support allegation (1) because the same or similar kinds of evidence and inferences therefrom were rejected by the jury in favor of contradictory evidence or were overcome by other evidence,” former Indiana chief justice and now-Indiana Court of Appeals Senior Judge Randy Shepard wrote.

As to his second allegation, “Axelrod’s reading of Outback stretches the holding too far,” Shepard wrote.

Axelrod’s third allegation also stretched Outback, the panel held, noting that “the jury heard the evidence Axelrod presented about the alleged civil conspiracy between WellPoint and Amgen but rejected it. … The trial court was not requiring Axelrod to meet a new threshold requirement but was using different words to say that, under these facts, he would have to have shown extreme misconduct to have warranted a new trial; but, he had not and could not.”

As to the fourth allegation, Axelrod cited to Schultz v. Butcher to argue he was only required to establish that misconduct occurred, not “clear misconduct or fraud or some other subterfuge.” But here, “the court contrasted the misconduct in Schultz and Outback with that of the present case and concluded that the conduct was dissimilar.”

Axelrod also raised misconduct claims on appeal, and Shepard noted “there were many instances before, during, and after trial, where counsels’ approach was not as one would hope or expect.” Even so, the trial court “was in the ‘best position to gauge the behavior of the attorneys and whether or not it impacts the jury and in what context.’ … We conclude after examining each of Axelrod’s claims, he has not established that the judgment was unfairly procured.”

Finally, the appellate panel rejected Axelrod’s challenge to the denial of his request for limited post-trial discovery, finding no error, let alone reversible error.

The case is Randy C. Axelrod, M.D. v. Anthem, Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc., 19A-PL-1171.

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April 21

Guardianship — Estate Planning, Check Deposit

In the Matter of the Guardianship of Donnell Lee Roberts, an Adult (now deceased), James Wesley Frady v. Patrick Hart20A-GU-1837

Although an adult guardian properly deposited a check after his ward died, the trial court did not err in denying the guardian’s request to exercise estate planning.

James Frady and Donnell Roberts opened a joint checking account with the Greenfield Banking Company in May 2017. That August, Frady was appointed guardian over Roberts’ person and estate.

Then in November, Roberts received a $145,754.33 required minimum distribution check from Merrill Lynch. Roberts gave Frady the check, and the two made plans to deposit it later that week. However, Roberts died a few days later, and Frady deposited the check shortly after his death.

An estate was opened for Roberts in January 2018, with Patrick Hart serving as personal representative. Frady submitted a final accounting in the guardianship case, but the estate objected to his treatment of the check, which it claimed became an asset of the estate when Roberts died.

Meanwhile, Frady filed two petitions to exercise estate planning powers to change the beneficiary designation on a Merrill Lynch account worth more than $720,000 and to make gifts on behalf of Roberts. The Hancock Superior Court denied both of those motions without a hearing.

Then in July 2020, the trial court ruled that the check had become an asset of the estate at the time of Roberts’ death, meaning Frady was required to deliver it to personal representative. Thus, the trial court sustained the estate’s objection.

Frady appealed, and the Indiana Court of Appeals partially reversed in his favor in In the Matter of the Guardianship of Donnell Lee Roberts, an Adult (now deceased), James Wesley Frady v. Patrick Hart, 20A-GU-1837.

Specifically, the appellate panel found that Frady did have authority to deposit the check the same day Roberts died.

“The fact that the account was jointly owned by Roberts and Frady resulting in Frady receiving the money via survivorship is a matter of happenstance, one that does not negate the fact that Frady depositing the RMD check constituted the completion, as guardian, of a task entrusted to him by Roberts, the protected person,” Judge Margret Robb wrote. “We conclude that Frady depositing a check as instructed after the death of Roberts falls within the purview of Indiana Code section 29-3-12-1(e)(1)(A),” Robb continued. “Therefore, the trial court erred in sustaining the Estate’s objection regarding the RMD check.”

However, the COA upheld the denial of Frady’s petitions to exercise estate planning, finding a hearing was not required.•