                                                                             FILED
                                                                         Jun 16 2020, 8:37 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Michael Einterz, Jr.                                       Brian C. Hewitt
      Mike Einterz                                               Christopher J. Mueller
      Einterz & Einterz                                          Hewitt Law & Mediation, LLC
      Zionsville, Indiana                                        Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mary Eve Kassen Moriarty,                                  June 16, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-PL-2342
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      Catherine C. Moriarty and Paula                            The Honorable Matthew C.
      A. Bowers,                                                 Kincaid, Special Judge
      Appellees-Plaintiffs                                       Trial Court Cause No.
                                                                 29D01-1709-PL-8319



      Crone, Judge.


                                              Case Summary
[1]   Mary Eve Kassen Moriarty (Eve) appeals the trial court’s order entering

      judgment in favor of Catherine C. Moriarty (Cathy) and Paula A. Bowers

      (Paula) (collectively Daughters) on their claim to reject the probate of the

      purported last will and testament of William J. Moriarty (the Purported Will)


      Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                           Page 1 of 27
      on the basis of lack of testamentary capacity and/or undue influence and on

      their claim of tortious interference with inheritance. Eve contends that the trial

      court abused its discretion at trial by allowing Daughters to reopen their case-in-

      chief to call her as a witness. She also argues that the trial court’s legal

      conclusions are clearly erroneous. Finding no error, we affirm.


                                    Facts and Procedural History
[2]   The unchallenged findings of fact show that William and Doreen Moriarty are

      Daughters’ parents. 1 On April 1, 2016, Doreen died. William and Doreen had

      been married for fifty-eight years.


[3]   The Moriarty family was a “closely knit, loving family.” Appealed Order at 18

      (finding #175). William was a devoted husband and father. Cathy and Paula

      had close relationships with both parents, although at times Paula and William

      would disagree. Paula has two children, Nicholas and Jackson, who both had

      loving relationships with William and Doreen. Based on numerous specific

      statements by William over many years, Paula and Cathy each expected to




      1
        The trial court, for the most part, adopted Daughters’ proposed findings and conclusions thereon. Eve
      argues that the trial court’s order is clearly erroneous because the citations in the trial court’s order do not
      correspond with the official transcript on appeal. It appears that Daughters obtained a certified transcript to
      prepare their proposed findings, and that that transcript was paginated differently than the official transcript
      on appeal. Daughters were kind enough to provide a key in their appellees’ appendix as an aid to locating
      the citations in the trial court’s order in the transcript on appeal. Of the order’s more than 250 findings and
      conclusions, Eve contends that only the footnote in finding 223 is not supported by the record on appeal.
      That footnote is immaterial to the resolution of the issues on appeal. There is nothing in the findings that we
      rely on in this opinion that is not accurately represented in the transcript on appeal. In her reply brief, Eve
      requests that we strike Daughters’ appellees’ appendix. Despite her failure to make this request as a motion
      as required by Indiana Appellate Rule 34, we deny her request.

      Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                    Page 2 of 27
      inherit one-half of William’s assets. In addition, William discussed his

      intention that everything he and Doreen owned would be split between Cathy

      and Paula with Doreen’s sister, Elaine Suurendonk, who had significant

      interaction with the Moriarty family over several decades.


[4]   Dr. Edward Fry is a cardiologist who treated both Doreen and William.

      Doreen was his patient from 2007 until her death. In April 2015, William

      became Dr. Fry’s patient when William was hospitalized and diagnosed with

      congestive heart failure (CHF). At an appointment in May 2016, William

      reported to Dr. Fry that he had been under a great deal of stress due to the

      prolonged and complex illness of his wife who had recently passed away.


[5]   Eve, who had met William at Holy Spirit Parish when Doreen was still living,

      began dating him within weeks after Doreen died. Cathy learned about Eve in

      an email from William but did not realize that they were dating. William never

      mentioned Eve by name to Paula or invited Paula to meet Eve. Paula noticed a

      change in her relationship with William when he stopped calling, emailing, and

      otherwise communicating with her after Father’s Day 2016. William had never

      stopped communicating with Paula before. Cathy did not understand why

      William suddenly stopped communicating with Paula. In June 2016, William

      did not want Cathy to visit him in Indianapolis, and she thought that was very

      strange. In August 2016, Cathy visited William, and he told her that he was

      engaged to be engaged, but she did not understand what he meant.




      Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020           Page 3 of 27
[6]   On October 25, 2016, Eve married William. This was Eve’s fourth marriage.

      William’s daughters, grandsons, sister, sister-in-law, and longtime close friends

      were not invited to the wedding. Sometime before the wedding, “Cathy found

      out that Eve planned to marry William,” but Paula was not informed about the

      wedding, and she was shocked to learn that William married Eve so soon after

      Doreen’s death. Id. at 4, 21 (#32, #214, #215). Although Suurendonk had

      maintained regular contact with William following Doreen’s death, he did not

      tell her that he was going to be married, and she was surprised to learn that

      William had married Eve so soon after Doreen’s death. William’s longtime

      friend Danial Kocher, who maintained regular contact with William, was not

      informed that William was going to marry Eve and was shocked to learn that

      William married Eve. Eve never invited Paula or Cathy to her home, did not

      invite them to William’s surprise birthday party, and did not meet Paula until

      the day before William died.


[7]   “After Eve married William, Paula and Cathy were not permitted to participate

      in William’s medical care as they had previously with William and with

      Doreen.” Id. at 11 (#100). “Dr. Fry viewed this as a significant change from

      the family dynamic over the previous nine years.” Id. “Eve was present at the

      office visit when William told Dr. Fry that he did not want Paula and Cathy

      involved in his medical care.” Id. “During the course of Dr. Fry’s treatment of

      William, Dr. Fry diagnosed William with anxiety and depression, and Dr.

      Fry’s medical records reference symptoms of anxiety and depression nine times

      from April 2016 through William’s death in May 2017.” Id. (#108).


      Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020         Page 4 of 27
[8]    On November 17, 2016, William and Eve closed on the purchase of a home on

       Glen Ridge Circle (Glen Ridge House) in Fishers for $412,620.11. The Glen

       Ridge House was paid for by wire transfer from an account owned solely by

       William, which had been funded by the sale of his prior home and a money

       market account owned solely by him. The amount of money William spent on

       the Glen Ridge House was out of character for him.


[9]    “A patient with CHF, like William, would become physically reliant on others

       for assistance with activities of daily living.” Id. at 12 (#112). In March 2017,

       Eve fired William’s home healthcare service provider, the same provider who

       had served Doreen. William said nothing, which was out of character for him.


[10]   On March 20, 2017, William signed a request to surrender his Prudential life

       insurance policy. Eve initially testified that she had not seen the request before

       William died, but she admitted to writing everything on it except William’s

       signature. The policy’s surrender value of $11,591.80 was deposited into an

       account, which was owned jointly by William and Eve.


[11]   On April 6, 2017, William executed the Purported Will. Ex. 3. The Purported

       Will directs all tangible personal property and the entire residue of William’s

       estate to be distributed to Eve if she survives him and nominates Eve to serve as

       personal representative of his estate. The Purported Will also provides that if

       Eve does not survive William, then the personal property and residue of his




       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 5 of 27
       estate are to be distributed to Daughters, per stirpes. The Purported Will

       included a self-proving clause. 2


[12]   The Purported Will was prepared by attorney Greg Cagnassola. Eve had been

       a client of Cagnassola for eight to ten years. Cagnassola departed significantly

       from his ordinary practices when meeting with and preparing an estate plan for

       William. Other than dropping off a draft of the Purported Will at William’s

       house, Cagnassola did not have in-person interaction with William until the

       signing of the Purported Will at William’s house. Eve was home when the

       Purported Will was signed. Eve prepared the check that William signed to pay

       for the preparation of the Purported Will. Also on April 6, William signed a

       general durable power of attorney naming Eve as his attorney-in-fact and a

       healthcare power of attorney naming Eve as his healthcare power of attorney,

       both effective immediately. Eve never signed a will or trust naming William as

       a beneficiary. Eve never named William as her healthcare power of attorney or

       healthcare representative or attorney-in-fact.


[13]   In April 2017, although he was no longer driving, William owned a 2015

       Lincoln MKX truck that was paid for and had low mileage. Eve leased an

       Acura, which had a net amount of $4860.38 due to the dealership. On April

       27, 2017, William and Eve traded in their cars and purchased a 2017 Lexus RX




       2
         “A self-proving clause creates a rebuttable presumption that the will was properly executed.” Scribner v.
       Gibbs, 953 N.E.2d 475, 481 (Ind. Ct. App. 2011). “[P]roper execution of a will requires a writing, a
       signature, acknowledgment, publication, presence, and attestation by capable witnesses.” Id. (citing
       HENRY’S INDIANA PROBATE LAW & PRACTICE § 29.03 (2010)).

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                  Page 6 of 27
       350 for $62,973.01. The net amount due to purchase the Lexus, after credit for

       the value of William’s truck and the amount due on Eve’s Acura were applied,

       was $44,533.39. A check for $40,000 was written from a bank account owned

       solely by William. It was out of character for William to trade in his truck and

       to spend that amount of money on a new car.


[14]   On May 7, 2017, William died. On May 22, 2017, Daughters filed a verified

       petition for supervised administration of William’s estate. The following day,

       Eve filed a petition for probate of the Purported Will without court supervision.

       Ultimately, the two causes were consolidated, and a special administrator was

       appointed.


[15]   In September 2017, Daughters initiated the underlying action by filing a verified

       complaint alleging that the Purported Will was invalid because William was of

       unsound mind when he executed it and/or the Purported Will was a product of

       undue influence and alleging that Eve tortiously interfered with their

       inheritance. Prior to trial, Daughters requested that the trial court issue findings

       and conclusions thereon pursuant to Indiana Trial Rule 52(A).


[16]   On July 29, 2019, a three-day hearing was commenced. Daughters presented

       their case-in-chief, calling nine witnesses. When Daughters rested, Eve moved

       for involuntary dismissal pursuant to Indiana Trial Rule 41(B), which the trial

       court denied. Eve then presented her defense, calling five witnesses. She did

       not call herself as a witness although she was named in her final witness list.

       After Eve rested, Daughters moved to reopen their case-in-chief to call Eve as a


       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 7 of 27
       witness. Tr. Vol. 3 at 243. The trial court granted the request, over Eve’s

       objection, for the limited purpose of examining Eve and gave Eve the

       opportunity for cross-examination and to call additional witnesses. Id. at 245-

       48. Eve’s counsel did not ask Eve any questions on cross-examination, call any

       additional witnesses, or ask for a continuance to call or recall other witnesses.


[17]   On September 26, 2019, following the parties’ submissions of proposed findings

       of facts and conclusions thereon, the trial court issued a twenty-eight-page

       order, consisting of over 250 findings and conclusions, which in relevant part

       provides as follows:


               K. Testimony of Dr. Stephen Rappaport


               158. Dr. Stephen Rappaport is a geriatrician and has been an
               expert witness in legal disputes for over twenty years. He
               frequently determines patients’ decision-making capacity and
               treats patients regularly who are suffering from anxiety,
               depression, and cardiac conditions, including CHF.


               ….


               160. Dr. Rappaport reviewed extensive medical records and
               other case records in order to render an opinion concerning the
               impact of William’s physical and affective (mood) abnormalities
               on his psychological vulnerability to undue influence.


               ….


               172. This Court adopts the opinion of Dr. Rappaport and finds
               that William’s physical and psychological impairments and the

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 8 of 27
        under-treatment of his depression and anxiety impacted
        William’s ability to reasonably evaluate and judge the treatment
        of him by third parties.


        173. This Court adopts the opinion of Dr. Rappaport and finds
        that William’s physical and psychological impairments and the
        under-treatment of his depression and anxiety impacted
        William’s psychological vulnerability and susceptibility to undue
        influence.


        174. The Court adopts the opinion of Dr. Rappaport and finds
        that, on April 6, 2017, (a) William’s ability to reasonably
        evaluate and judge the treatment of him by third parties was
        impaired, and (b) William suffered increased psychological
        vulnerability and susceptibility to undue influence.


        ….


        S. William lacked the mental capacity to determine Paula and
        Cathy’s deserts, with respect to their treatment of and conduct
        toward him.


        236. Based on all the evidence, and specifically based on, among
        other things (a) the testimony of [Daughters], Ms. Suurendonk,
        and William’s long-time friends that William would never have
        excluded [Daughters] from his life or estate plan, (b) the expert
        medical testimony of Dr. Rappaport that William lacked the
        capacity to reasonably evaluate and judge the treatment of him
        by third parties, and (c) William giving Doreen’s sentimental
        personal property to Scott Bowers at a time when he and Paula
        were in the midst of a highly contentious, drawn-out divorce, the
        Court finds that William lacked the mental capacity to determine
        Paula and Cathy’s deserts, with respect to their treatment of and
        conduct toward him.


Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020           Page 9 of 27
        T. William was susceptible to undue influence.


        237. Based on all the evidence, and specifically based on, among
        other things, (a) the death of Doreen, (b) William’s virtually
        untreated anxiety and depression, (c) William’s severe CHF and
        other medical conditions, (d) William’s isolation from his family
        and long-time friends, [and] (e) William’s dependency on others,
        this Court finds that William was susceptible to undue influence.


        U. Eve exercised undue influence over William.


        238. The Court finds that Eve exercised undue influence over
        William and bases that finding upon all of the evidence and
        specifically upon (a) Eve’s marriage to William less than seven
        months after Doreen died, (b) Eve’s involvement in the grief
        ministry at Holy Spirit in which William was a participant, (c)
        the Purported Will and non-probate transfers representing a
        dramatic shift in William’s intent regarding the passing of his
        estate less than six months after the wedding and only one month
        before his death, (d) the testimony of Eve that she contributed at
        least $232,500 in physical cash to William toward the purchase of
        the Glen Ridge House and the Lexus, which this Court found not
        credible, (e) the involvement by Eve in the procurement of and
        payment for the Purported Will, (f) the involvement of Eve in the
        surrendering of William’s Prudential life insurance policy, (g) the
        purchase of the Lexus only ten days before William’s death when
        William was no longer driving, (h) the lack of any effort by Eve
        to form relationships with Paula, Cathy, and William’s other
        family and long-time friends, (i) Eve’s firing of William’s long-
        time medical caregiver, (j) William’s significant reliance on Eve,
        (k) the wedding occurring without any of William’s family or
        long-time friends attending or even being invited, (l) Eve
        inheriting virtually all of William’s assets to the exclusion of his
        daughters and grandsons, and (m) Eve’s demeanor in court,
        which consisted of a flat affect during emotional testimony of
        Paula and Cathy about their father’s last hours and during Eve’s
Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020         Page 10 of 27
        own testimony, which leaves this factfinder with no confidence
        that Eve married William because she loved him and with the
        conclusion that Eve planned to take all of William’s money all
        along.


        II.     CONCLUSIONS OF LAW


        ….


        i. Capacity to Execute a Will


        241. Every person is presumed to be of sound mind to execute a
        will until the contrary is shown. Hays v. Harmon, 809 N.E.2d
        460, 464 (Ind. Ct. App. 2004), trans. denied. To rebut this
        presumption, a party must show that the testator lacks mental
        capacity at the time of executing his will to know: (1) the extent
        and value of his property; (2) those who are the natural objects of
        his bounty; (3) their deserts, with respect to their treatment of and
        conduct toward him, and (4) to retain such facts in mind long
        enough to have a will prepared and executed. [Gast v. Hall, 858
        N.E.2d 154, 165 (Ind. Ct. App. 2006)] (internal citations
        omitted); McReynolds v. Smith, 86 N.E. 1009, 1010 (Ind. 1909);
        Barr v. Sumner, 107 N.E. 675, 679 (Ind. 1915). While it is the
        testator’s soundness of mind at the time of executing the will that
        is controlling, evidence of the testator’s mental condition prior to
        the date of execution is admissible, as it relates to the testator’s
        mental state when executing his will. Gast, 858 N.E.2d at 165
        (internal citations omitted). A testator must possess all essential
        elements of testamentary capacity; if one essential element is
        lacking, the will of the testator is not valid. Lowe v. Talbert, 177
        N.E. 339, [340] (Ind. Ct. App. 1931) (en banc).


        242. Based on the findings above, the Court concludes that
        William lacked the mental capacity to determine Paula and


Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020           Page 11 of 27
        Cathy’s “deserts, with respect to their treatment of and conduct
        toward him.”


        243. Accordingly, the Court concludes that William lacked
        sufficient mental capacity to validly execute the Purported Will.


        ii. Undue Influence


        244. Undue influence is defined as “the exercise of sufficient
        control over the person, the validity of whose act is brought into
        question, to destroy his free agency and constrain him to do what
        he would not have done if such control had not been exercised.”
        In re Estate of Wade, 768 N.E.2d 957, 962 (Ind. Ct. App. 2002),
        trans. denied. It is an intangible thing that only in the rarest
        instances is susceptible of what may be termed direct or positive
        proof. McCartney v. Rex, 145 N.E.2d 400, 402 (Ind. Ct. App.
        1957) (“The difficulty is also enhanced by the fact universally
        recognized that he who seeks to use undue influence does so in
        privacy”). As such, undue influence may be proven by
        circumstantial evidence, and the only positive and direct proof
        required is of facts and circumstances from which undue
        influence may reasonably be inferred. Haas v. Haas, 96 N.E.2d
        116, 120 (Ind. Ct. App. 1951), reh’g denied. “As circumstances
        tending in a slight degree to furnish ground for inference of fraud
        or undue influence, it is proper to consider the character of the
        proponents and beneficiaries, and interest or motive on their part
        to unduly influence the testator, and facts and surroundings
        giving them an opportunity to exercise such influence.” Davis v.
        Babb, 125 N.E. 403, 406 (Ind. 1919). Where a person makes
        false statements and accusations to a testator concerning the
        objects of the testator’s bounty, with the intention and effect of
        alienating the testator’s affections and causing the testator to
        make certain testamentary dispositions of property, the will may
        be declared void for undue influence. Friedersdorf v. Lacy, 90 N.E.
        766 (Ind. 1910).

Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020           Page 12 of 27
        245. Based on the evidence, including reasonable inferences the
        Court draws from the facts and circumstances and further based
        on the findings above, the Court concludes that: William was
        susceptible to undue influence, Eve exercised undue influence
        over William at the time he executed the Purported Will, and the
        Purported Will was a product of Eve’s exercise of undue
        influence over William.


        B. Tortious Interference with Inheritance


        ….


        247. Here, Paula and Cathy have filed an action to contest the
        validity of the Purported Will, which, if successful, would allow
        them to inherit assets from William’s probate estate. However,
        the will contest remedy would not allow Paula and Cathy to
        inherit or benefit from any of William’s assets that pass outside
        his probate estate. The Court concludes that Paula and Cathy
        have stated a valid claim for tortious interference with
        inheritance. William was susceptible to undue influence and Eve
        exercised undue influence at the time that (a) the Glen Ridge
        House was purchased and deeded to William and Eve as
        husband and wife, (b) the Lexus was purchased and titled to
        William and Eve as joint owners, (c) Eve became a joint owner
        in the bank account ending 0541 at The National Bank of
        Indianapolis, the bank account ending 864 at Fifth Third Bank,
        and the bank account ending 1434 at PNC Bank (the “Joint
        Accounts”). Eve’s exercise of undue influence over William is
        tortious interference with Paula’s and Cathy’s expected
        inheritance.


        248. But for Eve’s tortious interference with Paula and Cathy’s
        expected inheritance, the Glen Ridge House, the Lexus, and the
        Joint Accounts would have passed through William’s probate
        estate.

Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020       Page 13 of 27
               249. The Court concludes that [Daughters] have, by clear and
               convincing evidence, established that William did not intend for
               Eve to inherit the value of the Joint Accounts.


       Appealed Order at 16-18, 24-28 (some citations omitted).


[18]   The trial court entered judgment in favor of Daughters, declared the Purported

       Will to be invalid, rejected the probate of the Purported Will, and ordered that

       William’s estate be distributed as an intestate estate. Id. at 28. The trial court

       also entered judgment in favor of Daughters on their claim for tortious

       interference with inheritance, ordered Eve to transfer title of the Glen Ridge

       House and Lexus to William’s estate, and entered a money judgment against

       Eve in constructive trust in favor of William’s estate in the amount reflecting

       the value of the Joint Accounts received by Eve: $54,665.83. Id. This appeal

       ensued.


                                       Discussion and Decision
[19]   Initially, we note that where, as here, the trial court enters findings of fact and

       conclusions thereon at a party’s request pursuant to Indiana Trial Rule 52(A),

       our standard of review is well settled:


               First, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. In
               deference to the trial court’s proximity to the issues, we disturb
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. We do not
               reweigh the evidence, but consider only the evidence favorable to
               the trial court’s judgment. Challengers must establish that the
               trial court’s findings are clearly erroneous. Findings are clearly

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 14 of 27
                erroneous when a review of the record leaves us firmly convinced
                a mistake has been made. However, while we defer substantially
                to findings of fact, we do not do so to conclusions of law.
                Additionally, a judgment is clearly erroneous under Indiana Trial
                Rule 52 if it relies on an incorrect legal standard. We evaluate
                questions of law de novo and owe no deference to a trial court’s
                determination of such questions.


       Trabucco v. Trabucco, 944 N.E.2d 544, 548-49 (Ind. Ct. App. 2011) (quoting

       Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005), trans. denied

       (2006)), trans. denied. In addition, when findings of fact are unchallenged, this

       Court accepts them as true. 3 Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.

       Ct. App. 2019). As such, if the unchallenged findings are sufficient to support

       the judgment, we will affirm. See Kitchell v. Franklin, 26 N.E.3d 1050, 1059

       (Ind. Ct. App. 2015) (concluding that even if appellate court disregarded the

       challenged findings, unchallenged findings were sufficient to support trial

       court’s conclusion that plaintiff’s claim was unreasonable and groundless so as

       to support trial court’s award of attorney fees), trans. denied.


            Section 1 – The trial court did not abuse its discretion by
              permitting Daughters to reopen their case-in-chief.
[20]   We first address Eve’s challenge to the trial court’s decision to allow Daughters

       to reopen their case-in-chief to call her as a witness. We observe, “it is within




       3
        In a footnote in her reply brief, Eve argues that certain findings are unsupported by the evidence, but
       arguments raised for the first time in a reply brief are waived. See Felsher v. Univ. of Evansville, 755 N.E.2d
       589, 593, n.6 (Ind. 2001) (concluding that issue raised for first time in reply brief was waived); Ind. Appellate
       Rule 46(C) (“No new issues shall be raised in the reply brief.”).

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                   Page 15 of 27
       the discretion of the trial court to permit a party to present additional evidence

       or testimony once the party has rested, once both parties have rested, or after

       the close of all of the evidence.” Collyear-Bell v. Bell, 105 N.E.3d 176, 186 (Ind.

       Ct. App. 2018); Quigg Trucking v. Nagy, 770 N.E.2d 408, 413 (Ind. Ct. App.

       2002); Preuss v. McWilliams, 141 Ind. App. 602, 606, 230 N.E.2d 789, 791

       (1967). In arguing whether the trial court abused its discretion, both parties cite

       to Flynn v. State, 497 N.E.2d 912 (Ind. 1986), wherein our supreme court stated,


                Among the factors which weigh in the exercise of discretion are
                whether there is any prejudice to the opposing party, whether the
                party seeking to reopen appears to have rested inadvertently or
                purposely, the stage of the proceedings at which the request is
                made, and whether any real confusion or inconvenience would
                result from granting the request.


[21]   Id. at 914. 4 “Two conditions must be shown to exist to justify a court of

       appellate jurisdiction in setting aside a ruling made by a trial court in the

       exercise of judicial discretion: 1) that the action complained of must have been

       unreasonable in light of all attendant circumstances or it must have been clearly

       untenable or unreasonable; and 2) that such action was prejudicial to the rights

       of the complaining party.” Id. at 916.




       4
          All the cases citing the Flynn factors are criminal cases: Walker v. State, 587 N.E.2d 675, 677 (Ind. 1992);
       Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988); Alvarado v. State, 89 N.E.3d 442, 447 (Ind. Ct. App. 2017),
       trans. denied (2018); Gilman v. State, 65 N.E.3d 638, 641 (Ind. Ct. App. 2016); Moss v. State, 13 N.E.3d 440,
       446 (Ind. Ct. App. 2014), trans. denied; Saunders v. State, 807 N.E.2d 122, 126 (Ind. Ct. App. 2004); White v.
       State, 726 N.E.2d 831, 835 (Ind. Ct. App. 2000), trans. denied. Although criminal cases differ from civil cases
       in many respects, the Flynn factors, while not an exclusive or comprehensive list, may be helpful in civil
       cases. We consider them here because both parties rely on them.

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                  Page 16 of 27
[22]   Eve argues that the trial court abused its discretion because it did not apply the

       Flynn factors. We are unpersuaded. We note that when a trial court exercises

       its discretion in ruling on a party’s motion to reopen its case-in-chief, there is no

       requirement that the court specifically articulate the reasons for its ruling.

       Furthermore, the “trial court is presumed to know the law and apply it

       correctly.” Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 506 (Ind. Ct. App. 2011).

       We also note that while the Flynn factors may be helpful in many cases, each

       case presents its own unique circumstances that a trial court must weigh in

       exercising its discretion: “Matters committed to judicial discretion are those

       requiring an on-the-spot decision made in light of the trial judge’s knowledge,

       sense of fairness and equity, and the facts and circumstances present in the

       courtroom.” White v. White, 655 N.E.2d 523, 532 (Ind. Ct. App. 1995). We

       find no error on this basis.


[23]   Eve also argues that Daughters intentionally rested their case without calling

       her as a witness and that she was severely prejudiced because Daughters had

       the benefit of hearing her evidence. At trial, Eve objected to Daughters’ motion

       to reopen their case-in-chief on the grounds that Daughters had the opportunity

       to call all the witnesses they wanted and chose not to call her, and permitting

       them to call her as a witness after the close of evidence would prejudice her case

       because she had based her defense on the evidence Daughters presented in their

       case-in-chief and Daughters had the benefit of hearing her witnesses. Tr. Vol. 3

       at 243, 245-46. The trial court was clearly aware of these circumstances and

       took them into account in exercising its discretion. In addition, the trial court


       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 17 of 27
       considered Indiana Evidence Rule 611, which governs the mode and order of

       examining witnesses and presenting evidence. Id. at 245. The trial court

       explained that the rule required it to “exercise reasonable control over the mode

       and order of examining witnesses and presenting the evidence so as to make

       those procedures effective for determining the truth, avoid wasting time, and

       protecting witnesses from harassment and undue embarrassment.” Id. The

       trial court mitigated the threat of prejudice to Eve by granting her the

       opportunity for cross-examination and to call additional witnesses. She

       declined to do either.


[24]   This Court has previously observed that


               “[w]hile a trial judge has some discretion in refusing a request to
               reopen the case to supply testimony adequate to avoid a nonsuit,
               yet this discretion should be liberally exercised in behalf of
               allowing the whole case to be presented. It is the usual course to
               allow the additional evidence, and, whenever the trial judge
               refuses to allow it, some good reason should appear for such
               exercise of his discretion. The trial of a case is not a mere game
               for testing the skills and vigilance of contesting lawyers, but is an
               investigation instituted for the purpose of ascertaining truth.”


       Sanders v. Ryan, 112 Ind. App. 470, 41 N.E.2d 833, 836 (1942) (reversing trial

       court’s denial of plaintiff’s motion to reopen evidence made after defendant’s

       motion for judgment on the evidence had been granted). Under the

       circumstances present here, we cannot say that the trial court’s decision to




       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020           Page 18 of 27
       allow Daughters to reopen their case was unreasonable. 5 See Gorman v. State,

       463 N.E.2d 254, 257 (Ind. 1984) (no prejudice found in reopening case where

       witness was known to defense and defense was given opportunity to cross-

       examine witness and call additional witnesses in his behalf); Gilman v. State, 65

       N.E.3d 638, 643 (Ind. Ct. App. 2016) (trial court did not abuse its discretion by

       allowing State to reopen its case, after defendant’s closing argument, to present

       rebuttal evidence); Quigg Trucking, 770 N.E.2d at 413 (trial court did not abuse

       its discretion by allowing plaintiffs to reopen their case after defendant moved

       for judgment on the evidence). The trial court did not abuse its discretion.


               Section 2 –The trial court’s legal conclusions that the
                Purported Will is invalid are not clearly erroneous.
[25]   Eve also contends that the trial court clearly erred in concluding that the

       Purported Will is invalid because William lacked sufficient mental capacity and

       Eve exercised undue influence over William. Initially, we note that any




       5
         Eve argues that she was called as a witness “only to impugn her character and attempt to impeach her
       credibility without foundation” and that this was improper pursuant to Indiana Code Section 34-45-4-1 and
       Slayton v. State, 481 N.E.2d 1300, 1303 (Ind. 1985). Appellant’s Br. at 35. However, she did not object to
       Daughters’ motion to reopen their case on this basis. Therefore, this argument is waived. See Anonymous,
       M.D. v. Hendricks, 994 N.E.2d 324, 327 (Ind. Ct. App. 2013) (“Generally, a party cannot raise an argument
       for the first time on appeal.”). Also, in her appellant’s reply brief, Eve argues that she objected to certain
       testimony and documentary evidence on the basis of relevancy. See Appellant’s Reply Br. at 27 n.7 (citing
       Tr. Vol. 4 at 2, 4, and 6). In fact, the trial court sustained Eve’s objection to the documentary evidence on the
       basis of relevancy. Tr. Vol. 4 at 6. In any event, whether the trial court abused its discretion in admitting
       specific evidence on the basis of relevancy is a different question from whether the trial court abused its
       discretion in permitting Daughters to reopen their case. We conclude that the issue whether the trial court
       abused its discretion in admitting specific evidence on the basis of relevancy is waived for failure to present a
       cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant’s brief be
       supported by cogent reasoning and citations to authorities, statutes, and the appendix or parts of the record
       on appeal); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (failure to present cogent
       argument waives issue for appellate review), trans. denied.

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                   Page 19 of 27
       interested person may contest the validity of a will based on “(1) the

       unsoundness of mind of the testator; (2) the undue execution of the will; (3) that

       the will was executed under duress or was obtained by fraud; or (4) any other

       valid objection to the will’s validity or the probate of the will.” Ind. Code § 29-

       1-7-17. The burden of proof in a will contest is on the opponent of the will.

       Ind. Code § 29-1-7-20. Thus, Daughters bore the burden of proof on the issues

       they raised: that the Purported Will is invalid because William lacked the

       mental capacity to execute it and/or that it was a product of Eve’s undue

       influence over William. 6 Testamentary capacity and undue influence represent

       two separate grounds for invalidating a will, and the trial court found that the

       Purported Will was invalid on both grounds. Accordingly, if the judgment can

       be supported on either ground, we may affirm. Because we conclude that the

       trial court did not clearly err in concluding that the Purported Will is the

       product of Eve’s undue influence over William, we need not address her

       arguments relating to his testamentary capacity.


[26]   “Undue influence is defined as ‘the exercise of sufficient control over the

       person, the validity of whose act is brought into question, to destroy his free

       agency and constrain him to do what he would not have done if such control

       had not been exercised.’” In re Estate of Compton, 919 N.E.2d 1181, 1185-86




       6
        Undue influence is a type of undue execution. Matter of Estate of Parlock, 486 N.E.2d 567, 569 (Ind. Ct. App.
       1985).

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                 Page 20 of 27
       (Ind. Ct. App. 2010) (quoting Trent v. Nat’l City Bank of Ind., 918 N.E.2d 646,

       651 (Ind. Ct. App. 2009), trans. denied (2010)), trans. denied.


                In order to affect a will, undue influence must subjugate the mind
                of a testator to the wishes of the person exerting the influence. It
                must be such as to control the mental operations of the testator in
                the making thereof, overcome his power of resistance and oblige
                him to make a disposition of his property which he would not
                have made if left freely to act according to his own wishes and
                pleasures.


       Lindinger v. Lindinger, 126 Ind. App. 463, 466, 130 N.E.2d 75, 77 (1955). “It

       may flow from the abuse of a confidential relationship in which ‘confidence is

       reposed by one party in another with resulting superiority and influence

       exercised by the other.’” 7 Carlson v. Warren, 878 N.E.2d 844, 851 (Ind. Ct. App.

       2007) (quoting In re Neu, 588 N.E.2d 567, 570 (Ind. Ct. App. 1992)).


[27]   When considering whether a will is invalid because it is a product of undue

       influence, the mental state of the testator is a factor the courts consider. Nichols

       v. Estate of Tyler, 910 N.E.2d 221, 229 (Ind. Ct. App. 2009) (quoting Gast, 858




       7
         Although not discussed by the parties, we note that “[u]nder Indiana law, a confidential relationship
       sufficient to support an undue influence claim may arise either as a matter of law or may arise under the
       particular facts of a case.” Scribner v. Gibbs, 953 N.E.2d 475, 484 (Ind. Ct. App. 2011). A confidential
       relationship as a matter of law creates a presumption of undue influence. Id. “Confidential relationships as a
       matter of law include relationships such as attorney-at-law and client, attorney-in-fact and the one granting
       the power of attorney, guardian and ward, principal and agent, pastor and parishioner, and parent and
       child.” Id. Here, there was no confidential relationship as a matter of law between Eve and William, and
       therefore a presumption of undue influence did not arise. “Where there is no confidential relationship as a
       matter of law, the plaintiff bears the burden of establishing either that “the dominant party dealt with superior
       knowledge of the matter derived from a fiduciary relationship, or dealt from a position of overpowering
       influence as to the subordinate party.” Id. (quoting Carlson, 878 N.E.2d at 851).

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                   Page 21 of 27
N.E.2d at 166). However, “[c]omplete unsoundness of mind is not necessary to

support a finding of undue influence; rather, weakness of mind when combined

with other factors is sufficient.” 8 Id. As we have often explained,


         Undue influence is an intangible thing that only in the rarest
         instances is susceptible of what may be termed direct or positive
         proof. That difficulty is enhanced by the fact that one who seeks
         to use undue influence does so in privacy. Accordingly, undue
         influence may be proven by circumstantial evidence, and the only
         positive and direct proof required is of facts and circumstances
         from which undue influence reasonably may be inferred. The
         following circumstances tending to support an inference of undue
         influence may be properly considered by our Court: (1) the
         character of the beneficiary; (2) any interest or motive the
         beneficiary might have to unduly influence the testator; and (3)
         the facts and surrounding circumstances that might have given
         the beneficiary an opportunity to exercise such influence.


In re Rhoades, 993 N.E.2d 291, 300-01 (Ind. Ct. App. 2013) (quotation marks

omitted) (citing Gast, 858 N.E.2d at 166). See also Davis v. Babb, 190 Ind. 173,

125 N.E. 403, 406 (1919) (“[I]t is proper to consider the character of the

proponents and beneficiaries, and interest or motive on their part to unduly




8
  Eve argues that the trial court’s conclusions as to undue influence are clearly erroneous because the trial
court applied an incorrect legal standard in finding #241 by relying on Lowe, 177 N.E. 339. The legal
principles recited in finding 241 apply to determining whether a testator has sufficient mental capacity to
execute a will. To prove testamentary capacity, we have explained that “‘unless the failure of understanding
be quite total, reaching to the testator’s forgetfulness of his immediate family and property, he is not
disqualified from making a will,’ for the weak and aged must be accorded the same rights as the strong-
minded to dispose of their property.” Hays v. Harmon, 809 N.E.2d 460, 466 (Ind. Ct. App. 2004) (quoting
Farner v. Farner, 480 N.E.2d 251, 259 (Ind. Ct. App. 1985)). Undue influence need not be premised on
complete lack of testamentary capacity. See Nichols, 910 N.E.2d at 229. Accordingly, Eve’s argument
regarding Lowe does not apply to the separate issue of undue influence.

Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                Page 22 of 27
       influence the testator, and facts and surroundings giving them an opportunity to

       exercise such influence.”). 9


[28]   Here, the trial court found that William was susceptible to undue influence

       based on the death of Doreen, his untreated anxiety and depression, his severe

       CHF and other medical conditions, his isolation from family and friends, and

       his dependency on others. Appealed Order at 24-25 (#237). Eve does not

       contend that this finding is clearly erroneous. As for whether Eve exercised

       undue influence over William, the trial court found that she did based on the

       following: Eve married William only seven months after Doreen died, and

       none of William’s family or longtime friends were invited to the wedding; Eve

       made no effort to form relationships with William’s family and friends; Eve

       fired William’s longtime caregiver; William significantly relied on Eve; Eve was

       involved with the procurement and payment of the Purported Will; the

       Purported Will and the non-probate transfers represented a dramatic departure

       from what William had previously and consistently expressed as his intent with

       regard to his assets; Eve inherited virtually all of William’s assets to the

       exclusion of his daughters and grandsons; and the Lexus was purchased when

       William was no longer driving and just ten days before he died. Id. at 25

       (#238). In addition, the trial court found that Eve’s testimony that she made

       substantial contributions toward the purchase of the Glen Ridge House and the




       9
         Eve repeatedly attacks the trial court’s consideration of her character. However, Eve’s character is a
       permissible consideration as it relates to whether she exercised undue influence over William.

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                 Page 23 of 27
       Lexus was not credible. Finally, the trial court made the following finding

       regarding Eve’s demeanor, which is the only finding Eve challenges: 10


                Eve’s demeanor in court, which consisted of a flat affect during
                emotional testimony of Paula and Cathy about their father’s last
                hours and during Eve’s own testimony, which leaves this
                factfinder with no confidence that Eve married William because
                she loved him and with the conclusion that Eve planned to take
                all of William’s money all along.


       Id.


[29]   Eve argues that it was inappropriate for the trial court to consider her demeanor

       in court because it is not admissible evidence, and that it was also inappropriate

       for the trial court to make a determination on whether she loved William.

       Appellant’s Br. at 46-47. As to the latter, we note that because the issue before

       the trial court was whether Eve exercised undue influence over William, her

       interests and motives were relevant to the resolution of the issue. See Rhoades,

       993 N.E.2d at 300-01. As to the trial court’s consideration of Eve’s demeanor,

       our legal system attaches great significance to the trier of fact’s “ability to

       observe the demeanor of witnesses and thereby evaluate their credibility.”

       Addison v. Review Bd. of Ind. Emp’t Sec. Div., 397 N.E.2d 1037, 1039 (Ind. Ct.

       App. 1979). We have explained,




       10
         Eve raises new challenges to the trial court’s finding of undue influence in her appellant’s reply brief, but
       an appellant may not raise new arguments in her reply brief. See Felsher, 755 N.E.2d at 593; Ind. Appellate
       Rule 46(C).

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020                                    Page 24 of 27
               Countless times our Appellate Courts defer to findings of fact
               made by administrative agencies, judges or juries, reviewing
               evidence only in a light most favorable to the decision below.
               This standard of review is in recognition of the trier of fact’s
               intelligence and understanding, coupled with their opportunity to
               personally hear the witnesses and observe their conduct in the act
               of testifying. In legal concept, the appearance and demeanor of a
               witness is assumed to be in evidence.


       Id. (citation and quotation marks omitted).


[30]   Assuming, without deciding, that it was inappropriate for the trial court to

       consider Eve’s demeanor when she was not testifying, any error is harmless

       because the remaining findings support the trial court’s conclusion that Eve

       exercised undue influence over William at the time he executed the Purported

       Will. Accordingly, the trial court’s conclusion that the Purported Will was a

       product of Eve’s exercise of undue influence over William is not clearly

       erroneous, and we affirm the trial court’s judgment in favor of Daughters on

       their claim that the Purported Will is invalid.


          Section 3 – The trial court’s conclusions regarding tortious
           interference with inheritance are not clearly erroneous.
[31]   The trial court concluded that William was susceptible to undue influence and

       that Eve exercised undue influence over William at the time she became a joint

       owner of the Glen Ridge House, the Lexus, and the three bank accounts, and

       that her exercise of undue influence over William is tortious interference with

       Daughters’ expected inheritance. Appealed Order at 27-28 (#246-49). Eve



       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020        Page 25 of 27
       argues that the trial court failed to apply the proper legal standard in reaching

       this conclusion.


[32]   Tortious interference with an inheritance occurs when “[o]ne who by fraud or

       other tortious means intentionally prevents another from receiving from a third

       person an inheritance or gift that he would otherwise have received is subject to

       liability to others for the loss of the inheritance or gift.” Minton v. Sackett, 671

       N.E.2d 160, 162 (Ind. Ct. App. 1996) (adopting RESTATEMENT (SECOND) OF

       TORTS § 774B (1979)). This action is prohibited “where the remedy of a will

       contest is available and would provide the injured party with adequate relief.”

       Id.


[33]   According to Eve, the trial court properly relied on Minton but failed to apply

       the clear and convincing evidence standard to the joint accounts, citing Womack

       v. Womack, 622 N.E.2d 481 (Ind. 1993). Specifically, Eve directs us to the

       following language: “the party challenging the survivor’s right to the proceeds

       of the joint account must show by clear and convincing evidence that the

       decedent did not intend the survivor to receive the proceeds of the account

       without the benefit of a presumption of undue influence.” Id. at 483; see also

       Ind. Code § 32-17-11-18 (“Sums remaining on deposit at the death of a party to

       a joint account belong to the surviving party or parties as against the estate of

       the decedent unless there is clear and convincing evidence of a different

       intention at the time the account is created.”). Although the trial court did not

       specifically cite Womack or Section 32-17-11-18, it indisputably applied the clear

       and convincing standard to the joint accounts in finding 249: “The Court

       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020            Page 26 of 27
       concludes that [Daughters] have by clear and convincing evidence established

       that William did not intend for Eve to inherit the value of the Joint Accounts.”

       Appealed Order at 28. We find no error on this basis.


[34]   Eve also contends that the evidence and findings fail to support the conclusion

       that William did not intend for Eve to receive the inter vivos transfers. Eve’s

       argument ignores findings 237 and 238 pertaining to undue influence, many of

       which apply to the inter vivos transfers as well as to the execution of the

       Purported Will. Given our discussion above, we need not repeat those findings

       here. We conclude that Eve’s argument is a request to reweigh the evidence,

       which we must decline. Accordingly, we affirm the trial court’s judgment in

       favor of Daughters on their tortious interference of inheritance claim.


[35]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-2342| June 16, 2020          Page 27 of 27
