MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                              FILED
court except for the purpose of establishing                      Jun 28 2017, 5:55 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick J. O’Connell                                     Kevin J. Riley
Mishawaka, Indiana                                       James R. Schrier
                                                         Reiling Teder & Schrier, LLC
                                                         Lafayette, Indiana
                                                         Edward Chosnek
                                                         Chosnek Law P.C.
                                                         Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Estate of                           June 28, 2017
John L. Thompson, Sr.:                                   Court of Appeals Case No.
                                                         79A02-1606-ES-1329
Sandra Riggs,
                                                         Appeal from the
Appellant-Defendant,                                     Tippecanoe Circuit Court
        v.                                               The Honorable
                                                         Thomas H. Busch, Judge
Marcee L. Brody and John L.                              Trial Court Cause No.
Thompson, Jr.,                                           79C01-1402-ES-6

Appellees-Plaintiffs.




Kirsch, Judge.


Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017       Page 1 of 10
[1]   Sandra Riggs (“Riggs”) appeals the jury’s verdict, which set aside the will of

      John L. Thompson, Sr. (“Senior”) and assessed monetary damages against

      Riggs and in favor of her siblings, Marcee L. Brody (“Brody”) and John L.

      Thompson, Jr. (“Junior”). Riggs raises several issues, of which we find the

      following dispositive: whether the trial court abused its discretion when it

      excluded testimony regarding Senior’s testamentary intent as a sanction for the

      violation of a motion in limine.


[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   Junior, Brody, and Riggs are the children of Barbara Thompson (“Barbara”)

      and Senior, who divorced in 1970 when the children were still young. In 1972,

      Senior moved in with his girlfriend, Barb Fields (“Fields”), and they lived

      together on property in Lafayette, Indiana (“the Eisenhower property”) until

      2013. Junior lived with Senior at various times during his childhood, while

      Brody and Riggs lived with Barbara during their childhoods.


[4]   Junior testified that he had a good relationship with Senior, that he loved his

      father, and that he believed that his father loved him. Tr. Vol. III at 8, 78.

      Junior also admitted that there was “friction” in his relationship with Senior.

      Id. at 62. In June 1985, when Junior was about nineteen years old, a fight

      occurred between Junior and Senior, in which Junior got drunk and went to

      Senior’s home in the middle of the night and assaulted Senior. Tr. Vol. I at 100-

      01; Tr. Vol. III at 8; Def’t’s Ex. A. This incident related to a statement that

      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 2 of 10
      Senior had made to Barbara at a child support hearing that Senior did not

      believe that Junior was his child. Tr. Vol. I at 102; Tr. Vol. II at 6; Tr. Vol. III at

      8. Junior and Senior later reconciled, and Senior acknowledged to Junior that

      Junior was his son. Tr. Vol. III at 11.


[5]   Brody did not have a close relationship with Senior during her childhood and

      for many of her adult years. One of the reasons for the conflict between Brody

      and Senior was that Senior did not approve of Brody’s decision to join the

      military after high school. From around 1996 until 2000, Brody visited Senior

      occasionally, but stopped making an effort to see him after 2000 because she felt

      Senior was not putting forth any effort into their relationship. Riggs testified

      that she had a good relationship with Senior and had regular contact with him

      her entire life. Tr. Vol. IV at 44-46.


[6]   Senior retired in 1993 after he suffered a heart attack, at which time he had

      open heart surgery, and Fields took care of him. From 1993 until 2007,

      Senior’s only income was from disability payments and pension. In March

      1996, Senior opened a checking account with Regions Bank and named Riggs,

      Brody, and Junior as equal beneficiaries under the account. Senior deposited

      most of his disability and pension payments into this account. On August 14,

      2007, Senior opened an annuity with Pacific Life Insurance Company (“the

      Annuity”) and named Riggs, Brody, and Junior as equal beneficiaries under the

      Annuity. Riggs, Brody, and Junior remained equal beneficiaries until

      December 6, 2013.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 3 of 10
[7]   In 2011 or 2012, Fields and Senior discussed giving a portion of the Eisenhower

      property to Junior. Fields testified that paperwork was drawn up to transfer the

      property, but Senior changed his mind in July 2012. Tr. Vol. I at 50. At some

      point, Riggs and Junior discovered that Fields was on the deed to the

      Eisenhower property as Senior’s wife under the name Barbara L. Thompson.

      In June 2013, Riggs prepared a quitclaim deed in order to transfer Fields’s

      interest in the Eisenhower property to Senior, and Fields signed the quitclaim

      deed.


[8]   Senior suffered a stroke in May 2013, and Fields cared for him after the stroke.

      Fields took Senior to a neurologist who diagnosed Senior with short-term

      memory loss likely due to early dementia. Fields told the children about

      Senior’s stroke in June 2013. Shortly after learning about Senior’s stroke, Riggs

      prepared a Durable Power of Attorney (“POA”), which named Riggs as

      Senior’s POA. On August 19, 2013, Riggs and Brody took Senior to another

      appointment with the neurologist, and at that time, the doctor diagnosed Senior

      with advanced dementia; however, the doctor later admitted he may have

      overestimated the degree of dementia that Senior suffered. Appellee’s App. Vol.

      IV at 50.


[9]   On August 9, 2013, Riggs took Senior to Regions Bank to meet with the

      assistant manager, Susan Randall (“Randall”). Randall testified that Senior

      had previously met with her a few months prior because he wanted to withdraw

      all of his money from his checking account to keep it safe from Fields. Tr. Vol.

      III at 198-99. On August 9, Senior was still concerned about keeping his money

      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 4 of 10
       safe from Fields, so Randall recommended that Senior transfer the money to an

       account opened in Riggs’s name. Randall testified that Senior chose this

       option, and the sum of $200,000 was transferred from the account into a new

       account owned solely by Riggs. Id. at 210. In October 2013, Senior and Riggs

       went to First Source Bank and opened an account in Riggs’s name, and

       transferred the money from the Regions Bank account into the new account.


[10]   Senior began living with Riggs in September 2013. In December 2013, Senior

       and Riggs went to the office of Roger Bennett (“Bennett”) in order to make a

       will for Senior. Bennett spoke with Senior privately to determine Senior’s

       testamentary capacity and who he wanted to leave his estate to. Tr. Vol. III at

       163, 166. Bennett believed that Senior had sufficient testamentary capacity to

       execute a will. Id. at 166. Bennett testified that Senior expressed his intent to

       leave his property to Riggs and not to Brody or Junior because they did not

       “care enough about him to come visit regularly.” Id. at 166-67. Bennett

       prepared the will, and a few days later, Senior and Riggs came back to have

       Senior sign the will. When Bennett reviewed the will with Senior and Riggs,

       Riggs objected when she found out that Senior was leaving everything to her

       and stated that Senior was “going to make trouble for [Riggs] with [Junior and

       Brody].” Id. at 172. Senior then stated that Junior and Brody “didn’t give a

       damn about him,” but decided to leave them $2,000 each. Id. Revisions were

       made to the will to reflect this change, and Senior signed the will. After the will

       was signed, Riggs and Senior went to First Source Bank and Senior changed the

       beneficiaries of the Annuity from Junior, Brody, and Riggs to only Riggs.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 5 of 10
[11]   Senior died January 10, 2014. On February 7, 2014, Senior’s will was admitted

       to probate, and Riggs was named personal representative of the estate. Junior

       and Brody filed a complaint to contest Senior’s will on March 5, 2014. Junior

       and Brody filed motions in limine, in which they sought to exclude evidence of

       Junior’s alleged alcoholism, his criminal record, and that Junior was not

       Senior’s biological son. In an order entered on May 19, 2016, the trial court

       granted the motions in limine, ordering in pertinent part:


                 The alcoholism of [Junior] may not be discussed in the presence
                 of the jury until further order of this Court. . . . The parties may
                 not discuss [Junior’s] criminal record until further order of the
                 Court. . . . Evidence concerning [Senior’s] belief or statements
                 that [Junior] was not a natural child of [Senior] may not be
                 discussed in the presence of the jury until further order of the
                 Court.


       Appellee’s App. Vol. II at 77.


[12]   A jury trial was held from May 24, 2016 through May 27, 2016. On the first

       day of trial, after a discussion on the issue of character evidence, the trial court

       stated:

                 So proving generally that [Junior and Brody] are not of good
                 character would not be competent evidence but proving that they
                 were considered by the testator to be of bad character or
                 unworthy would be relevant and competent. So just the fact for
                 instance [Junior] had a drinking problem would not be relevant
                 but if there were instances in which this was a matter of friction
                 between him and his father that would be relevant.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 6 of 10
Tr. Vol. I at 5. Riggs’s counsel asked for clarification regarding the status of the

motions in limine as to evidence of Junior’s alcohol use and criminal record,

and the following exchange occurred:

        [Trial Court]: [Evidence related to Junior’s alcohol use and
        criminal record] can only come in if it effects [sic] the mind of the
        father. The fact that they are a bad character can’t come in on
        that basis but if they had --


        [Riggs’s Counsel]: If he went to visit his son in the prison is that
        admissible?


        [Junior and Brody’s Counsel]: I think that’s more harmful, more
        prejudicial than probative of any evidence.


        [Trial Court]: If he was angry at his son for being a drunk that
        would come in. If they -- the two of them got into quarrels and
        fought that would come in. But just the fact that any of the three
        people -- well any of the -- either of the plaintiffs are bad
        character doesn’t come in just for that reason. So I don’t think
        that his convictions come in except as they -- but the incident--as
        I understand it one of the incidents where the police report was
        made was one where there was friction between the son and
        father. That would certainly come in.


Id. at 11-12. The trial court also stated that evidence of whether Junior was or

was not the biological son of Senior should be allowed only as it related to

Senior’s soundness of mind and the issue of undue influence. Id. at 6. Included

in the evidence the trial court was going to permit were statements that Senior

allegedly made to Riggs in the car after he signed the will. Id. at 14.



Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 7 of 10
[13]   During Riggs’s testimony on the final day of trial, she referenced Junior’s

       criminal record in response to a question about whether Senior gave her an

       explanation for giving unequal shares to the children in his will. Tr. Vol. IV at

       147-48. Counsel representing Junior and Brody objected, and a sidebar

       conference was held. At the conclusion of the sidebar, the trial court struck the

       answer and instructed the jury to “disregard the question and answer and

       further . . . to . . . assume that no explanation was given by [Senior] at that time

       or subsequently.” Id. at 150. At the end of the trial, the jury found (1) the will

       to be invalid, (2) the withdrawal from the Regions Bank account on August 9,

       2013 to be invalid, (3) the change of the beneficiaries of the Annuity from

       Junior, Brody, and Riggs to just Riggs only and the corresponding death

       payment to Riggs to be invalid, and (4) as a result, that Riggs is liable to Junior

       and to Brody in the amount of $133,334.06 each. Riggs now appeals.


                                      Discussion and Decision
[14]   Riggs argues that the trial court erred in its imposition, as a sanction for

       violating the motions in limine, of the exclusion of her testimony regarding

       statements Senior made to her after signing the will. A party who violates an

       order in limine may not do so with impunity. Allied Prop. and Cas. Ins. Co. v.

       Good, 919 N.E.2d 144, 151 (Ind. Ct. App. 2009), trans. denied. The sanction for

       violating an order in limine is “within the discretion of the trial court and under

       appropriate circumstances might extend to declaration of a mistrial and/or

       punishment for contempt.” Id.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 8 of 10
[15]   Riggs contends that the trial court erred when it excluded any testimony of

       what Senior told her regarding his intent in writing his will. She asserts that the

       central issue at trial was determining Senior’s testamentary intent and that the

       trial court’s action in excluding her testimony meant that the jury was given no

       basis to evaluate the issue. Riggs claims that the trial court’s sanction for her

       violation of the motions in limine denied her due process because it excluded

       testimony concerning anything that Senior said at the time he signed his will or

       immediately thereafter and “virtually eliminated [her] legal ability to prove her

       case.” Reply Br. at 14. She maintains that the trial court’s sanction was an

       excessive punishment for violation of the motions in limine and should be

       found to be an abuse of discretion. We agree.


[16]   Here, the trial court granted the motions in limine to exclude evidence of

       Junior’s criminal record. During her testimony on the last day of the trial in

       response to a question as to whether Senior said anything to her when they

       were leaving Bennett’s office to explain his will, Riggs stated, “Yes, he said he

       was very embarrassed for many years of [J]unior’s criminal record.” Tr. Vol. IV

       at 148. Counsel for Junior and Brody immediately objected, and the trial court

       told the jury to disregard the question. Id. After a sidebar conference, the trial

       court instructed the jury to “disregard the question and answer and further . . .

       to . . . assume that no explanation was given by [Senior] at that time or

       subsequently.” Id. at 150.


[17]   Therefore, as a sanction for violating the motions in limine, the trial court

       excluded any of Riggs’s testimony regarding what Senior said to her in

       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 9 of 10
       explanation as to why he wrote his will to essentially exclude Junior and Brody

       and also instructed the jury to assume that Senior gave no explanation, either as

       he left Bennett’s office or at any time thereafter, concerning why he wrote his

       will in that manner. This sanction essentially excluded all of Riggs’s evidence

       supporting her defense as to Senior’s intent in writing his will. Although the

       trial court has discretion in crafting a sanction for the violation of a motions in

       limine, the sanction imposed by the trial court in the present case was severe

       and deprived the jury of hearing evidence that was necessary for it to consider

       in order to properly decide the case. Other less severe sanctions were available

       for the trial court to utilize, including striking the offending testimony, an

       admonishment to the jury to disregard the testimony, a curative instruction, or

       punishment for contempt. Further, in excluding evidence, the trial court

       instructed the jury to assume that Senior never gave an explanation as to his

       intent in writing his will, and then, gave a final instruction that stated, “If a

       party fails to testify about facts, produce a witness or produce documents under

       the party’s exclusive knowledge and control, you may conclude that the

       testimony the witness could have given . . . would have been unfavorable to the

       party’s case.” Appellant’s App. at 36. We conclude that the trial court abused its

       discretion in its choice of sanction for the violation of the motions in limine.

       We, therefore, reverse the jury verdict and remand for retrial.


[18]   Reversed and remanded.


[19]   Mathias, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-ES-1329 | June 28, 2017   Page 10 of 10
