COA strikes sentence about laughing jurors in footnote

That jurors laughed at times during a handwriting expert’s testimony in a case contesting probate of a will has been removed from the official court opinion. The Court of Appeals made the move in a rehearing opinion issued Wednesday.

In October, the Court of Appeals ruled against Carol Pagano Foster and her two children in their quest for more than $170,000 in attorney fees after they lost their will contest involving Foster’s father, Warren E. Stibbins.

The trial court granted their motion for the $171,360.64 in attorney fees, finding fraud action and incompetency claims were not brought in good faith, but the undue influence claim was brought with just cause. The judge held that the three claims were so interrelated that fees could not be divided. The trial judge noted in the ruling that “The Fraud argument was puzzling, at best, and the testimony from the Plaintiff’s handwriting expert bordered on the incredible.”

In its original decision, Judge John Baker wrote a footnote referring to this sentence that read:

“The expert testified that dozens of specimens of Warren’s handwriting were forgeries. She was also certain that the signatures of all of the witnesses to nearly all of the documents at issue in this litigation were forgeries. Carol found this expert on the Internet. The expert received her training from another Internet vendor who also offered programs on, among other things, how to predict the gender of unborn children through the handwriting of a parent. At times, the jurors laughed audibly during the expert’s testimony.”

But on Wednesday, the judges granted the plaintiffs’ request for rehearing for the limited purpose of removing the last sentence from the footnote. In all other respects, the appeals court denied the petition for rehearing. The opinion on rehearing is Scott Alan Stibbins, individually and as Personal Rep. of the Estate of Warren E. Stibbins, and Trustee of the Warren E. Stibbins Revocable Trust, et al. v. Carol (Stibbins) Pagano Foster, et al., 18A02-1410-PL-750.


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