# In the Matter of the Supervised Estate of Mildred Borgwald v. Old National Bank and Raelynn Pound

> Indiana Court of Appeals · June 4, 2014 · 12 N.E.3d 252

URL: https://www.frixlaw.com/law-library/cases/2724919

## Case

- **Full name:** In the Matter of the Supervised ESTATE OF Mildred BORGWALD, Deceased, Appellant-Respondent, v. OLD NATIONAL BANK and Raelynn Pound, Appellee-Petitioner
- **Court:** Indiana Court of Appeals
- **Decided:** June 4, 2014
- **Citations:** 12 N.E.3d 252; 2014 Ind. App. LEXIS 248; 2014 WL 2515724
- **Precedential status:** Published
- **Opinion:** Opinion by Riley
- **Judges:** Riley, Robb
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2724919

## How later opinions describe it (automated extraction)

- noting that “[o]nce the admissibility of the expert’s opinion is established under Rule 702, ‘then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, an…

## Opinion text

Jun 04 2014, 10:01 am

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ERIC A. FREY KURT V. LAKER
Terre Haute, Indiana CRAIG D. DOYLE
Doyle Legal Corporation, P.C.
Indianapolis, Indiana

MATTHEW A. SHEEHAN
Smock & Etling
Terre Haute, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE SUPERVISED )
ESTATE OF MILDRED BORGWALD, Deceased, )
)
Appellant-Respondent, )
)
vs. ) No. 84A01-1302-ES-80
)
OLD NATIONAL BANK and )
RAELYNN POUND, )
)
Appellee-Petitioner. )

APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause No. 84D01-1004-ES-3250

June 4, 2014

OPINION - FOR PUBLICATION

RILEY, Judge
STATEMENT OF THE CASE

Appellant-Respondent, The Supervised Estate of Mildred Borgwald, Deceased

(the Estate), appeals the trial court’s decision in favor of Appellees-Claimants, Old

National Bank (ONB) and Raelynn Pound (Raelynn), entitling ONB to foreclose the

mortgage and equity line of credit against the Estate.1

We affirm.

ISSUES

The Estate raises four issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion when it excluded the testimony of the

Estate’s proffered expert witness, Dr. Robert Lalouche (Dr. Lalouche), a

gynecologist who had never treated Mildred Borgwald (Mildred);

(2) Whether the trial court improperly denied the Estate an opportunity to make an

offer of proof with respect to Dr. Lalouche’s anticipated testimony;

(3) Whether the trial court abused its discretion when it admitted redacted, certified

copies of medical records containing the observations of nurses and physicians

regarding Mildred’s mental and physical status; and

(4) Whether ONB’s mortgage was invalidated by the closing agent’s failure to read

the loan documents to Mildred in violation of Indiana Code section 33-42-2-2(4).

FACTS AND PROCEDURAL HISTORY

1
We conducted oral argument in this case on February 27, 2014 at Wabash College, Crawfordsville,
Indiana. We would like to thank counsel for their excellent advocacy and the College for its cordial
hospitality.

2
Ninety-five-year-old Mildred passed away on August 29, 2008. On March 21,

2001, Mildred executed her Last Will and Testament, leaving $1,000 to each of her five

grandchildren, with the remainder of her estate to her daughter, Lana McGee (Lana). On

the same date, Mildred also executed a general durable power of attorney, designating

Lana as attorney-in-fact upon a written declaration by Mildred’s doctor that she was

unable to manage her own affairs. On July 17, 2001, Dr. Lance Pickrell (Dr. Pickrell),

Mildred’s ophthalmologist, declared that Mildred was “unable to manage her own affairs

due to the onset of blindness.” (Trial Exh. 3). As such, Dr. Pickrell’s declaration

activated the power of attorney.

For the next six years, and prior to June 2007, Mildred, despite increasing

difficulties with sight and hearing, insisted that she reside on her own in her residence. In

the summer of 2007, Mildred had become hard of hearing and had vision problems. Her

family accommodated her by speaking louder, interacting closer, and by describing

checks to her and showing her where to sign.

In June of 2007, Mildred fell in her home and required hospitalization. After her

discharge from the hospital, she returned home and was cared for by the Visiting Nurses

Association. In addition, Mildred asked her granddaughter and Lana’s daughter,

Raelynn, to take care of her in Mildred’s home. Between July 2007 and June 2008,

Raelynn cared for her grandmother “24/7.” (Appellant’s App. p. 26). Mildred offered to

pay Raelynn $650.00 per week for her services.

On October 23, 2007, Raelynn accompanied Mildred to Old National Bank (ONB)

to complete an application of an equity line of credit against her home, which was valued

3
at $55,000. Denise Keegan (Keegan), ONB’s customer service representative, observed

the close connection between Mildred and Raelynn. Mildred informed Keegan that she

wanted to obtain a loan to pay for Raelynn’s in-home health care services. During her

dealings with Mildred, Keegan was assured that Mildred was cognizant of her

surroundings and her actions. At no time did Keegan believe that Raelynn was directing

or influencing the transaction.

On October 31, 2007, Mildred closed on an equity line of credit in the amount of

$36,000. A first disbursement in the amount of $12,600 was transferred into Mildred and

Raelynn’s joint checking account that same day. This entire amount was paid out to

Raelynn by check on November 7, 2007. Thereafter, a series of checks from November

2007 through June 2008 were written to further deplete the equity line of credit and

which were drawn on the joint checking account, “consistent with a weekly wage of

$650.00 for healthcare.” (Appellant’s App. p. 6).

In June of 2008, Mildred became hospitalized. Asserting her authority under the

power of attorney, Lana accused Raelynn of theft and undue influence, demanding that

Raelynn leave the hospital and move out of Mildred’s residence. Mildred passed away

on August 29, 2008.

On April 19, 2010, Lana, as personal representative, opened Mildred’s estate

(Estate). On July 15, 2010, ONB filed a claim for $36,274.54, representing the funds

borrowed by Mildred under the equity line of credit. Although the claim was initially

disallowed by the Estate and the trial court, the trial court granted ONB’s subsequent

4
motion to correct error and relief from judgment. At the same time, the Estate filed a

petition seeking to recover assets from Raelynn and asserting fraud and undue influence.

Despite several requests by ONB to the Estate to submit its witness lists and to

make its expert witnesses available for discovery, the Estate neglected to do so. Finally,

on May 30, 2012, ONB filed a renewed motion to exclude the Estate’s expert witnesses,

which the trial court conditionally granted on June 14, 2012. On July 6, 2012, the Estate

produced the report of its proffered expert witness, Dr. Lalouche. This report disclosed

for the first time that Dr. Lalouche was a non-treating gynecologist. Additionally, the

Estate noticed a video deposition, which it intended to use at trial and refused to make Dr.

Lalouche available for a discovery deposition. On July 13, 2012, the trial court granted a

motion to quash the video deposition. Thereafter, on July 18, 2012, the trial court

ordered Dr. Lalouche’s testimony excluded because (1) the Estate refused to make the

doctor available for anything other than a video deposition for trial in contravention of

the trial court’s prior orders; (b) Dr. Lalouche was engaged to render an opinion about the

mental state of a patient he had never met; and (c) the doctor intended to testify solely on

the basis of medical records.

On August 26 and October 26, 2012, the trial court conducted a bench trial. On

January 25, 2013, the trial court issued its findings of fact and conclusions of law, finding

that Mildred had the mental capacity to enter into a contract and was not unduly

influenced by Raelynn. The trial court concluded that ONB was the holder and owner of

a valid mortgage and was entitled to have the mortgage foreclosed as a valid and

paramount lien on Mildred’s real property.

5
The Estate now appeals.2 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admissibility of Dr. Lalouche’s Testimony

The Estate’s first argument centers on the trial court’s exclusion of the trial

testimony by its proposed expert witness, Dr. Lalouche. A trial court’s determination

regarding the admissibility of expert testimony under Evidence Rule 702 is a matter

within its broad discretion and will be reversed only for abuse of that discretion. Sears

Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 459 (Ind. 2001). The trial court’s decision

is presumed correct, and the party challenging the decision has the burden of persuading

us that the trial court abused its discretion. TRW Vehicle Safety Systems, Inc. v. Moore,

936 N.E.2d 201, 216 (Ind. 2010). It is only those rulings on admissibility made during

trial, not those made on motions in limine, that may be raised on appeal. Id.

The admissibility of Dr. Lalouche’s testimony was excluded by way of a pre-trial

joint motion by ONB and Raelynn to the trial court with a request to reconsider their

previous motion to exclude the expert’s testimony. On July 18, 2012, the trial court

granted the motion and issued a detailed order, which stated, in pertinent part:

The estate was ordered to provide opposing counsel, and file with the court,
a written report from Dr. Lalouche setting forth his opinions and the basis
therefore no later than July 6, 2012. On July 11, 2012, [ONB] and Raelynn
[] filed a motion to reconsider excluding Dr. Lalouche. The report is the
first indication this court has had that Dr. Lalouche is a non-treating
ObGyn, who was recently contacted to conduct a records review in order to
give an opinion on the competency of the decedent in October 2007 when
the mortgage at issue was executed, There is no history of treatment

2
Although the Estate appealed the trial court’s Order in favor of both ONB and Raelynn, the Estate
focuses its arguments on appeal solely on ONB; thereby foregoing its claims against Raelynn.

6
between Dr. Lalouche and the decedent. He never treated her, and had
never met her.

The Estate was required to make Dr. Lalouche available for deposition no
later than August 3, 2012. It refused. Instead, the Estate noticed a
videotaped deposition, for presentation at trial, for July 19, 2012. On July
13, 2012, a motion to quash the deposition notice of Dr. Lalouche was filed
and granted due to the pending motion to reconsider. The Estate responded
to the motion to reconsider on July 17, 2011.

[Mildred] passed away in August 2008. Apparently, she was a patient of
Dr. Janiki’s. She never treated with Dr. Lalouche and Dr. Lalouche never
met her. Dr. Lalouche was asked to review records – which records he was
provided is not clear – and render an opinion on decedent’s “ability to
comprehend a mortgage taken out . . . in October 2007.” Dr. Lalouche is a
practicing ObGyn. Reviewing and comparing records from 9 months after
the mortgage was executed with records from treatment three months prior
to the mortgage being executed (plus some historical records, apparently),
Dr. Lalouche opines [Mildred] was not competent to execute the mortgage
at issue. Dr. Lalouche confined his review to the records he was provided.

[]The opinion testimony of Dr. Lalouche is excluded.

(Appellant’s App. pp. 107-08).

At trial, the Estate requested to make an offer of proof with respect to Dr.

Lalouche’s anticipated testimony. After affirming from the Estate that his testimony

would be “consistent with the report [the Estate] submitted, the trial court concluded,

“I’m going to consider that your offer of proof, that you would call him and elicit

testimony based on the report that was submitted to the court.” (Tr. p. 131). Based on

the trial court’s order and subsequent ruling on the Estate’s offer of proof, it is clear that

the trial court excluded Dr. Lalouche’s testimony based on Ind. Evidence Rule 702

grounds.

7
The trial court is considered the gatekeeper for the admissibility of expert opinion

evidence under Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d

738, 750 (Ind. 1999). With regard to the admissibility of expert testimony, Rule 702

provides:

(a) If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.

By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and

that the underlying scientific principles are reliable, Rule 702 guides the admission of

expert scientific testimony. Sears Roebuck & Co., 742 N.E.2d at 460. Once the

admissibility of the expert’s opinion is established under Rule 702, “then the accuracy,

consistency, and credibility of the expert’s opinions may properly be left to vigorous

cross-examination, presentation of contrary evidence, argument of counsel, and

resolution by the trier of fact.” Id. at 461.

Where an expert’s testimony is based upon the expert’s skill or experience rather

than on the application of scientific principles, the proponent of the testimony must only

demonstrate that the subject matter is related to some field beyond the knowledge of lay

persons and that the witness possesses sufficient skill, knowledge or experience in the

field to assist the trier of fact. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 102

(Ind. Ct. App. 2005), trans. denied.

8
Focusing on Dr. Lalouche’s review of Mildred’s medical records and his 21 years

of experience in “caring for women, many of whom are elderly patients,” the Estate

contends that “[w]hile it may not have been testimony by a treating physician who saw

Mildred the day the mortgage was signed, it was of some benefit at least in explaining the

observations, evaluations, notes and records of the nurses who were attending to Mildred

at the time, and it was an abuse of discretion for the [c]ourt to absolutely prohibit the

Estate from offering an explanation of the medical evidence.” (Appellant’s Br. pp. 18-

19).

In response, ONB and Raelynn rely on Bennett v. Richmond, 960 N.E.2d 782 (Ind.

2012), to dispute the Estate’s notion that, based on his qualifications and experience, Dr.

Lalouche’s testimony would be helpful to the trier of fact. In Bennett, our supreme court

deemed a psychologist qualified to offer an expert opinion that the plaintiff in a personal

injury case suffered a traumatic brain injury as a result of a car accident. Id. at 789. The

court reached this decision based on the fact that the psychologist had personally

evaluated the plaintiff, clearly demonstrated his knowledge and experience with

traumatic brain injuries, as well as his familiarity with the specific facts of the case. Id.

Relying on Bennett’s parameters, ONB and Raelynn assert that having never practiced in

a field even tangentially related to neurological diseases or age-related cognitive

impairment and never having met Mildred, Dr. Lalouch’s experience of caring for elderly

patients is of little import to offer an opinion on Mildred’s mental capabilities.

Dr. Lalouche is a graduate of UCLA medical school and completed a Duke

ObGyn residency. He is a practicing ObGyn physician with 21 years of experience.

9
While it is undisputed by the parties that Dr. Lalouche is a skilled physician, in order to

be admissible pursuant to Evidence Rule 702, his testimony must assist the trier of fact in

its evaluation of Mildred’s mental competency. In this light, we have held before that

“[a]n expert in one field of expertise cannot offer opinions in other fields absent a

requisite showing of competency in that other field. Hannan v. Pest Control Servs, Inc.,

734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.

Reviewing the Estate’s offer of proof with respect to Dr. Lalouche’s proposed

testimony, we note—as did the trial court—that Dr. Lalouche is not Mildred’s treating

physician; in fact, Dr. Lalouche never met Mildred and formulated his opinion solely

based on the records submitted to him by the Estate. In his report, he merely paraphrases

the content of these records, without any further clarification of the medical terms or

separate elucidation on Mildred’s mental capabilities. Thus, although Dr. Lalouche relies

in his report on the conclusions by Mildred’s treating psychiatrist and internist, he does

not profess an independent competency in neurological diseases or age-related mental

deficiencies and his conclusion with respect of Mildred’s ability to comprehend the

mortgage process is of no assistance to the trier of fact. As such, we conclude that the

trial court did not abuse its discretion by excluding Dr. Lalouche’s proposed expert

testimony.3

II. Offer of Proof

3
Because we affirm the trial court’s exclusion of Dr. Lalouche’s proposed testimony based on Indiana
Evidence Rule 702, we will not address ONB’s and Raelynn’s alternative argument with respect to the
Estate’s discovery violations in releasing Dr. Lalouche’s report.

10
In a single-page argument, the Estate contends that the trial court abused its

discretion when it denied the Estate an opportunity to make an offer of proof “by putting

Dr. Lalouche on the witness stand and having him testify to the evidence he would have

been able to offer had the [c]ourt not excluded his testimony.” (Appellant’s Br. p. 22).

In response, both ONB and Raelynn point out that not only was the Estate allowed to

present an offer of proof, the Estate also failed to object when Dr. Lalouche’s report was

substituted in lieu of his live testimony.

The transcript includes the following colloquy:

[TRIAL COURT]: My understanding is, your position is you want to call
[Dr.] Lalouche to testify?
[THE ESTATE]: Just as an offer of proof only.
[TRIAL COURT]: And to do that, you would elicit from him testimony
consistent with the report you submitted.
[THE ESTATE]: That’s right.
[TRIAL COURT]: Okay, so I’m going to consider that your offer of proof,
that you would call him and elicit testimony based on the report that was
submitted to the court.
[THE ESTATE]: That’s right, Judge.
[TRIAL COURT]: In the prior motions that we had with respect to his
testimony.
[THE ESTATE]: That’s right, Judge.
[TRIAL COURT]: So I will consider that your offer of proof, however, my
ruling stands as it was before, he was not going to be allowed to be a
witness or testify for the reasons I gave in my order.
[THE ESTATE]: To that extent, Your Honor, and may it please the court,
in rather than having him come here and testify, which I think he is actually
available, as part of that offer of proof, would the court allow me just to
simply submit the report instead.
[TRIAL COURT]: It’s already in the court’s file.
[THE ESTATE]: Well, I wasn’t sure if that’s what we were doing, Judge,
I’m just confirming it.
[TRIAL COURT]: Yes, that’s what I just did.

(Tr. pp. 131-32).

11
As this exchange clearly establishes, the Estate requested—as required to preserve

the evidentiary ruling—to make an offer of proof with regard to the admissibility of Dr.

Lalouche’s testimony even though this issue had been extensively addressed pre-trial.

After confirming the proposed live testimony from Dr. Lalouche would be consistent

with the written report already submitted, the trial court indicated that it would consider

that report to be the Estate’s offer of proof and reiterated that it would not allow Dr.

Lalouche to be called as a witness. Contrary to ONB and Raelynn’s assertion, the Estate

did not waive this issue by suggesting the report in lieu of live testimony or by failing to

object to the trial court’s procedure. The trial court stated twice that it would consider the

report to be the Estate’s offer of proof and only then did the Estate offer the report itself

to ensure there was a copy in the court’s file. However, because the trial court took the

report as the Estate’s offer of proof and because the Estate has not alleged any facts to

which Dr. Lalouche would have testified if questioned live that were not already in the

report, the Estate was not denied the opportunity to make an offer of proof.

III. Redacted Medical Records

During trial, the Estate attempted to introduce certified medical records from the

Visiting Nurses Association through Lana, the personal representative of the Estate and a

lay witness. ONB and Raelynn objected to their admission because no proper foundation

had been laid pursuant to Ind. Evid. Rule 702. Specifically, at trial, Raelynn argued

The objection would be once again that these are medical records that
contain observations and opinions as to [Mildred’s] medical condition, and
I think that this case are [sic] rendered by a nurse possibly, or a licensed
nurse once again, their observations and conclusions that are based on a
particular skill and expertise and training and those individuals have not

12
been produced nor has there been any witness produced to satisfy the
requirements of Indiana Rule [702].

(Tr. p. 55). The trial court ruled:

Before we broke, [the Estate] had offered Petitioner’s Exhibit “4” which
were certified medical records involving the Visiting Nurse treatment of
decedent, the objection was that although there was a foundation laid for
authenticity with the certification the records contained inadmissible
opinions and diagnoses. I sustained that objection and asked the parties to
see if they could work through the document and redact those parts which
were objectionable, the parties have done that . . . .

(Tr. p. 57). The Estate confirmed the trial court’s explanation on the record, by agreeing

“That’s right Judge, we have.” (Tr. p. 57).

First, as argued by ONB and Raelynn and we agree, the Estate acquiesced to the

redactions and therefore has now waived this issue for appellate review. See Linton v.

Davis, 887 N.E.2d 960, 968 (Ind. Ct. App. 2008), trans. denied. Waiver notwithstanding,

however, we will address the Estate’s contention on its merits.

In support of their respective arguments, both Appellees rely on Brooks v.

Friedman, 769 N.E.2d 696,698 (Ind. Ct. App. 2002), where Friedman introduced

certified medical records from medical providers during his own testimony. The Brooks

court stated that “[m]edical opinions and diagnoses must meet the requirements for expert

opinions set forth in Evid. R. 702 in order to be admitted into evidence.” Id. at 701.

Paraphrasing Evid. R. 702, the court concluded that the sponsoring witness must first be

qualified as an expert and then, once this foundational requirement has been met, the

strengths and weaknesses of the expert’s opinion may be questioned against the facts. Id.

at 701-02.

13
In Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011), Flores attempted to

introduce medical records directly related to his treatment by certain experts whose

credentials were never established and who were not available for cross-examination.

We affirmed the trial court’s exclusion of those records on the basis of Evid. R. 702.

Also in Wilkins v. Swafford, 811 N.E.2d 374, 388 (Ind. Ct. App. 2004), abrogated on diff.

grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), trans. denied, a party

sought to admit a doctor’s medical report through the testimony of his medical partner.

The partner did not prepare the report and was not involved in the examination leading to

the report. Id. at 390. This court affirmed the trial court’s exclusion of the report because

(1) there was no foundation to show that the doctor who prepared the report was an

expert, and (2) there was no opportunity to cross-examine him on his qualifications or the

basis for his opinions. Id. at 391-92.

Here, the Estate sought to admit Mildred’s medical records through the testimony

of Lana, the Estate’s personal representative. Lana is not a medical professional, but

rather a lay witness. Therefore, as Lana could not be qualified as a medical expert

pursuant to Evid. R. 702 and establish the foundation of the records, the trial court

properly excluded the references to expert opinions and medical diagnoses.

Nevertheless, the Estate now contends that the redaction went too far: “the

redaction which was done at the [c]ourt’s direction excluded the medications Mildred

was on, the nurses’ notes concerning her mobility, the nurses’ notes regarding Mildred’s

requirement for assistance in daily activities and much more. These were hardly

diagnoses or opinions, but were the kind of day to day nursing records which show the

14
patient’s status and her progress or the lack thereof by the patient.” (Appellant’s Br. p.

20). We disagree.

Redaction is simply the editing or revising of a document. It is commonly used to

make otherwise inadmissible exhibits admissible. Dumes v State, 718 N.E.2d 1171, 1174

(Ind. Ct. App. 1999). Comparing the redactions in the records to the unredacted

documents submitted by the Estate, the agreed upon black-lined sentences reference the

medications taken by Mildred and the nurses’ observations with respect to Mildred’s

cognitive and mental limitations. On the other hand, the documents are not redacted with

respect to Mildred’s level of assistance needed and assistive devices required.

As the nurses’ annotations about Mildred’s mental and physical well-being are

necessarily shaped by the nurses’ training and education, the redactions were subject to

the requirements of Evid. R. 702. See Kranda v. Houser-Norborg Med. Corp., 419

N.E.2d 1024, 1034 (Ind. Ct. App. 1981) (It should be noted that “[a]n expert witness can

draw upon all sources of information coming to his knowledge or through the results of

his investigation in order to reach a conclusions.”), reh’g denied. Therefore, absent an

expert witness to establish the foundation of the redactions, we conclude that the trial

court properly excluded these parts from the documents.

IV. Indiana Code section 33-42-2-2(4)

Lastly, the Estate contends that the mortgage is invalid because ONB failed to

follow the directives of Indiana Code section 33-42-2-2(4), which enacts the following:

A notary public may not do any of the following:

***

15
(4) Take the acknowledgment of any person who is blind, without first
reading the instrument to the blind person.

The Estate presented evidence from Keegan, ONB’s customer service representative and

loan originator, who testified that she explained the mortgage to Mildred but did not read

every single word to her. Keegan testified that Mildred informed her that she would need

help because she had trouble seeing and hearing. Speaking clearly and loudly enough for

Mildred to hear her, Keegan explained the terms of the documents to Mildred and

showed her where to sign. Keegan clarified the finance charges, the interest amount, and

the monthly charges. She clarified the processing fees and the late payment fees. At no

point during the proceeding did Keegan receive the impression that Mildred failed to

understand what was going on. However, Keegan was not the notary for the mortgage;

rather, she stated that her “assistant manager, Alice Weir[,]” was the notary that day. (Tr.

p. 233). The Estate never called Alice Weir (Weir) as a witness.

In Outlaw v. Danks, 832 N.E.2d 1108 (Ind. Ct. App. 2005), trans. denied, the

appellant challenged the validity of a will which was notarized but not read to a blind

testator. The Outlaw court upheld the validity of the will and concluded that Indiana law

does not require a will to be notarized in order to be valid. Id. at 1111. Therefore, as a

result, the defective notary “did no more than invalidate [the notary’s] signature[.]” Id.

Likewise, as a will, a mortgage does not need to be notarized in order to be enforceable in

Indiana. See I.C. § 32-29-1-5.

Here, Weir, the notary, did not testify at trial. Even assuming that the mortgage

was not read to Mildred and that Mildred could be characterized as being blind and not

16
merely “having trouble seeing,” the validity of the mortgage would not be affected, only

the notary’s signature. (Tr. p. 260). Therefore, we decline the Estate’s invitation to

invalidate the mortgage.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court properly excluded the

testimony of Dr. Lalouche pursuant to Evid. R. 702; (2) the Estate was not denied the

opportunity to make an offer of proof regarding Dr. Lalouche’s anticipated testimony; (3)

the trial court did not abuse its discretion by admitting redacted, certified copies of

medical records; and (4) ONB’s mortgage was not invalidated.

Affirmed.

MAY, J. and ROBB, J. concur

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2724919. Public record. Not legal advice.