MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D), this                                        FILED
Memorandum Decision shall not be
                                                                              Jul 26 2018, 8:24 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alexander P. Pinegar                                       Leslie B. Pollie
Samuel R. Robinson                                         Travis W. Montgomery
Sarah J. Randall                                           Kopka Pinkus Dolin PC
Jessica L. Billingsley                                     Carmel, Indiana
Church Church Hittle & Antrim
Noblesville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Elaine Davey,                                              July 26, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           89A01-1712-PL-2955
        v.                                                 Appeal from the Wayne Superior
                                                           Court
Richard E. Boston,                                         The Honorable David E.
Appellee-Defendant                                         Northam, Special Judge
                                                           Trial Court Cause No.
                                                           89D01-1601-PL-3




Baker, Judge.


Court of Appeals of Indiana | Mem. Dec. on Rehearing 89A01-1712-PL-2955 | July 26, 2018                Page 1 of 3
[1]   We write for the limited purpose of addressing Boston’s contention that “Ms.

      Davey had available to her a copy of her husband’s will that was indeed fully

      executed with both Mr. Davey’s signature and the signatures of two witnesses.”

      Pet. for Reh. p. 7. It is true that Davey’s motion to set aside and vacate

      judgment contains an exhibit that is a photocopy of the Will depicting two

      witness signatures.


[2]   Initially, we note that this document is not in the summary judgment record.

      Indeed, at no point did Boston designate this document as evidence. Instead,

      Davey introduced it into the record to contrast it with the original copy of the

      will that she had found, which contains only one witness signature.


[3]   Moreover, when viewed in a light most favorable to non-movant Davey, there

      is a wealth of evidence supporting her argument that this document is not a

      photocopy of a validly executed will. Instead, it is a photocopy of a document

      on which Boston’s signature was added at some point after the execution of the

      Will. At the very least, there are many questions of fact surrounding this

      document.1


[4]   Footnote three in our original decision states that “[n]owhere in the record is

      there a copy of the Will that contains all necessary signatures.” Mem. Dec. p. 7

      n.3. Our language was imprecise; we should have said one of two things—




      1
        We note again that Boston admitted in his deposition that he failed to sign the original Will at the time of
      execution, that Boston’s staff photocopied the Will immediately following its execution, and that the copy of
      the Will in Boston’s file bears the signature of only one attesting witness.

      Court of Appeals of Indiana | Mem. Dec. on Rehearing 89A01-1712-PL-2955 | July 26, 2018            Page 2 of 3
      either, “nowhere in the summary judgment record is there a copy of the Will that

      contains all necessary signatures”; or, “at the very least, there are multiple

      questions of fact as to whether the record contains an original version of the Will

      bearing all necessary signatures.” We grant the petition for rehearing for the

      limited purpose of correcting that language. In all other respects, we deny the

      petition.


[5]   The petition for rehearing is granted in part and denied in part.


      Kirsch, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Mem. Dec. on Rehearing 89A01-1712-PL-2955 | July 26, 2018   Page 3 of 3
