Wilson v. Wilkening

• Decision Date: 28 July 2021
• Docket Number: Court of Appeals Case No. 20A-PL-1960
• Citation: 175 N.E.3d 1169
• Parties: Gregory WILSON, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission, Appellant-Plaintiff, v. Betty Jo WILKENING, Appellee-Defendant.
• Court: Indiana Appellate Court

175 N.E.3d 1169

Gregory WILSON, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission, Appellant-Plaintiff,

v.Betty Jo WILKENING, Appellee-Defendant.

Court of Appeals Case No. 20A-PL-1960

Court of Appeals of Indiana.

FILED July 28, 2021

Attorneys for Appellant: Theodore E. Rokita, Attorney General of Indiana, Benjamin M.L. Jones, Abigail R. Recker, Deputy Attorneys General, Indianapolis, Indiana

Attorneys for Appellee: David M. Austgen, Michael L. Muenich, Ryan A. Deutmeyer, Austgen Kuiper Jasaitis P.C., Crown Point, Indiana

Pyle, Judge.

Statement of the Case

[1] In this housing discrimination case, Gregory L. Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission, ("the Commission") appeals the trial court's grant of judgment on the evidence in favor of Betty Jo Wilkening ("Wilkening"). The Commission argues that the trial court erred in granting Wilkening's motion because the trial court misinterpreted the "shall" in INDIANA CODE § 22-9.5-6-8 to be mandatory rather than directory. For this specific statute, we agree with the Commission and, therefore, reverse and remand this case to the trial court for a new trial.

[2] We reverse and remand for a new trial.

Issue

Whether the trial court erred when it granted Wilkening's motion for judgment on the evidence.

Facts

[3] On January 18, 2017, Darrin Bowman ("Bowman") filed an administrative complaint with the Commission alleging "discrimination in the area of real estate on the basis of familial status."¹ (App. Vol. 2 at 17). Bowman's complaint specifically alleged as follows:

a. That on December 17, 2016, [Bowman] met with [Wilkening] to view a home owne[d] by [Wilkening], located in [Lake County], which [Wilkening] had advertised for rent;

b. That during the course of showing the home, [Bowman] told [Wilkening] that he would have his minor children (ages 8 and 15) living with him on weekends;

c. [Wilkening] then told [Bowman] that she did not want children residing in the unit, and refused to allow him to complete a rental application, even though he was qualified and the unit was available;

d. That the following week, [Bowman's] single friend without children was shown the same unit, which was still available, and she was encouraged to apply; and

e. That [Bowman] believed that he was discriminated against because he has children.

(App. Vol. 2 at 19).

[4] The Commission initiated an investigation and assigned the case to Commission Investigator Tawanda Johnson ("Johnson"). On July 21, 2017, following Johnson's investigation, the Commission issued a Notice of Finding and Issuance of Charge ("the Notice"). The Notice concluded that "there was reasonable cause to conclude that violations of the [Indiana Fair Housing Act ("IFHA")], [ INDIANA CODE § 22-9.5-1-1 et seq. ], ... on the basis of familial status, had occurred when [Wilkening] [had] refused to rent a home to [Bowman]." (App. Vol. 2 at 19). Wilkening elected to have the merits of the complaint tried in a civil action rather than by one of the Commission's administrative law judges.²

[5] In October 2017, the Commission filed an amended complaint both on its own behalf and on behalf of Bowman. The complaint alleged that Wilkening had violated the IFHA when she had discriminated against Bowman on the basis of his familial status.³ Wilkening filed an answer and a counterclaim in December 2017. In the counterclaim, Wilkening alleged that the Commission's claims were "groundless, unreasonable, and frivolous." (App. Vol. 2 at 31).

[6] At the July 2019 jury trial, during cross examination, Johnson testified that the Commission had neither made its determination of reasonable cause within 100 days of Bowman filing his complaint nor found that it was impracticable to make its determination of reasonable cause within the 100-day time period. See INDIANA CODE § 22-9.5-6-8(b) and (c). In addition, the Commission had not notified Bowman and Wilkening of the reasons for the delay. See INDIANA CODE § 22-9.5-6-8(b). At the end of the Commission's case in chief, Wilkening moved for judgment on the evidence on several grounds, including the Commission's failure to comply with INDIANA CODE § 22-9.5-6-8(c).

[7] In July 2019, the trial court issued an order granting Wilkening's motion for judgment on the evidence. The trial court's order provides, in relevant part, as follows:

3. The Commission's case adduced uncontroverted evidence that it failed, as required by I.C. 22-9.5-6-8(b) to make a determination of reasonable cause within 100 days of the filing of [the] Complaint, or, as required by I.C. 22-9.5-6-8(c), to find that it was impracticable to make the determination of reasonable cause within the 100-day time period and notify Bowman and Wilkening in writing of the reasons for the delay.

4. As a result of the Commission's failure to comply with the requirements of I.C. 22-9.5-6-8(b) and (c), Wilkening is entitled to judgment on the evidence as to the Commission's entire claim.

(App. Vol. 2 at 12).

[8] The Commission appealed the trial court's order. However, in December 2019, this Court dismissed the Commission's appeal without prejudice. Specifically, this Court's motions panel determined that the trial court's order was not a final judgment because Wilkening's counterclaim was still pending and the trial court had not in writing expressly determined that there was no just reason for delay and directed the entry of judgment. This Court's motions panel further determined that this Court lacked jurisdiction over the Commission's appeal because the trial court's interlocutory order was not appealable as a matter of right and the Commission had not sought a discretionary interlocutory appeal pursuant to Appellate Rule 14(B).

[9] In April 2020, Wilkening filed a motion for attorney fees pursuant to INDIANA CODE § 22-9.5-9-1, which authorizes the trial court to award reasonable attorney fees to the prevailing party in an IFHA case. Wilkening pointed out that, in the event the trial court awarded her the requested attorney fees, her counterclaim would become moot because the relief sought in the counterclaim was identical to the relief sought in her motion.

[10] The trial court held a hearing on Wilkening's petition in September 2020 and heard evidence that Wilkening's attorney fees had been $51,572.99. The following day, the trial court ordered the Commission to pay, pursuant to INDIANA CODE § 22-9.5-9-1, $51,572.99 for Wilkening's attorney fees.

[11] The Commission now appeals.

Decision

[12] The Commission argues that the trial court erred in granting Wilkening's motion for judgment on the evidence because it misinterpreted the "shall" in INDIANA CODE § 22-9.5-6-8 to be mandatory rather than directory. We agree.

[13] At the outset, we note that the IFHA provides that "[a] person may not refuse to sell or to rent after the making of a bona fide offer, refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status , disability, or national origin." I.C. § 22-9.5-5-1 (emphasis added). INDIANA CODE § 22-9.5-1-2 further explains a discriminatory act based on familial status as follows:

[A] discriminatory act is committed because of familial status if the act is committed because the person who is the subject of the discrimination is:

(1) pregnant;

(2) domiciled with an individual younger than eighteen (18) years of age in regard to whom the person:

(A) is the parent or legal custodian; or

(B) has the written permission of the parent or legal custodian for domicile with that person; or

(3) in the process of obtaining legal custody of an individual younger than 18 years of age.

I.C. § 22-9.5-1-2.

[14] We further note that the purposes of the IFHA are to: (1) provide for fair housing practices in Indiana; (2) create a procedure for investigating and settling complaints of discriminatory housing practices; and (3) provide rights and remedies substantially equivalent to those granted under federal law. I.C. § 22-9.5-1-1. In addition, the IFHA borrows heavily from the federal Fair Housing Act ("the FHA"), containing many parallel provisions and similar language. Furbee v. Wilson , 144 N.E.3d 801, 806 (Ind. Ct. App. 2020). Further, in construing the IFHA, we look to federal statutes and case law for guidance. Id.

[15] We now turn to the Commission's argument that the trial court erred in granting Wilkening's motion for judgment on the evidence. Judgment on the evidence is appropriate where all or some of the issues are not supported by sufficient evidence. Scheffer v. Centier Bank , 101 N.E.3d 815, 822 (Ind. Ct. App. 2018). Where the issue involves a conclusion of law based on undisputed facts, the reviewing court is to determine the matter as a question of law in conjunction with the motion for judgment on the evidence, and to this extent, the standard of review is de novo. Id. at 822-23 (cleaned up).

[16] This case requires us to interpret INDIANA CODE § 22-9.5-6-8, which provides, in relevant part, as follows:

(a) The commission shall determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur.

(b) The commission shall make the determination under subsection (a) not later than one hundred (100) days after the date a complaint is filed unless;

(1) it is impracticable to make the determination; or

(2) the commission has approved a conciliation agreement relating to the complaint.

(c) If it is impracticable to make the determination within the time period provided by subsection (b), the commission shall notify the complainant and respondent in writing of the reasons for the delay.

[17] Here, Bowman filed his complaint on January 18, 2017, and the Commission issued its reasonable cause determination on July 21, 2017, more than one hundred days after Bowman had filed his complaint. The Commission concedes...