In the Matter of the Estate of John L. Thompson, Sr.: Sandra Riggs v. Marcee L. Brody and John L. Thompson, Jr. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 28, 2017
• Docket: 79A02-1606-ES-1329
• Status: Published

Opinion

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.

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