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