Marston v. Taylor , 2015 Ark. App. LEXIS 222 ( 2015 )

Cite as 2015 Ark. App. 176
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-36
LINDA FAY MARSTON, PATSY Opinion Delivered March 11, 2015
ELLIFRITZ, WANDA GAIL GRAGG,
and DENNIS WAYNE TAYLOR APPEAL FROM THE CRAWFORD
APPELLANTS COUNTY CIRCUIT COURT
[NO. 17-CV-2012-424]
V.
HONORABLE GARY COTTRELL,
JAMES TAYLOR, DIANE CRIMS, and JUDGE
JOANN MORGAN
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
This litigation involves a dispute between seven siblings over the distribution of the
proceeds of a sale of real property. The appellants, Linda Fay Marston, Patsy Ellifritz, Dennis
Taylor, and Wanda Gragg, appeal from an order of the Crawford County Circuit Court
awarding a money judgment in favor of the appellees, James E. Taylor, Diane Crims, and
Joann Morgan. The appellants assign error to the circuit court’s order awarding the judgment
and directing them to pay the judgment or face incarceration for contempt. As to the first
point, we find no error and affirm; as to the second point, we conclude that the issue is not
preserved for our review.
Cite as 2015 Ark. App. 176
I. Background
Both the appellants and the appellees are the children of Gurtie Taylor, who was the
owner of the real property at issue. In February 2012, Gurtie executed a deed granting her
real estate to the appellants. Gurtie passed away in June 2012 of end-stage Alzheimer’s, a
diagnosis first received in 2009.
After Gurtie’s death, the appellees filed a motion to set aside the deed based upon
allegations of Gurtie’s incapacity to execute the deed and allegations of undue influence in
the procurement of the deed by Marston. Upon learning that Marston and the other siblings
had sold the real estate that was the subject of the deed for $45,000, the appellees filed an
amended complaint and motion for injunctive relief. The appellees sought a temporary order
from the court directing that the appellants jointly and severally deposit the proceeds of the
sale into the registry of the court while the action was pending. The court granted their
temporary request. When the appellants did not pay the proceeds of the sale into the registry
of the court, the appellees filed a petition for body attachment, asking that the appellants be
held in contempt and incarcerated until such time as the sale proceeds were deposited into
the court’s registry.
The matter proceeded to a bench trial. At the conclusion of the trial, the court
determined that Gurtie lacked the mental ability to execute the deed and found in favor of
the appellees. Because the property had already been sold, the court concluded that it could
not set aside the deed, but it awarded the appellees $22,500, representing half of the sales
price of the property. Moreover, the court held each of the appellants in contempt for failing
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to comply with the court’s earlier order to deposit the proceeds of the sale into the registry
of the court. The court ordered that the money judgment be paid within sixty days, but it
stated that the appellants could purge themselves of contempt if they paid the judgment
within that time. The appellants filed a timely notice of appeal from that order.
II. Mental Capacity of Grantor
In their first argument on appeal, the appellants assert that the circuit court erred in
finding that Gurtie lacked the mental capacity to execute the deed. We will not reverse this
finding of fact by the circuit court unless the finding is clearly erroneous. Clegg v. Sullivan,
2014 Ark. App. 143. A finding is clearly erroneous when, although there is evidence to
support it, the reviewing court on the entire evidence is left with a definite and firm
conviction that a mistake has been made. Id. We have reviewed the entire evidence in this
matter, and we are not convinced that a mistake was made or that the circuit court’s finding
was clearly erroneous.
The circuit court received Gurtie’s medical records into evidence. Undisputedly,
Gurtie was diagnosed with Alzheimer’s and dementia. The medical records reflected that
Gurtie was frail in appearance, confused, and disoriented. In October 2011, just four months
prior to the execution of the deed, her doctor found that Gurtie was “forgetting a lot more”
and “getting worse in her dementia.” Gurtie’s physician repeatedly noted her confusion and
anxiety, as well as her increasing difficulties speaking and swallowing. Gurtie’s general
appearance was described as “frail” with a “flat affect” and a “confused” mental state. In early
February 2012, shortly before the execution of the deed, the medical reports noted that
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Gurtie complained of not being able to feel the inside of her mouth, and her daughter was
“worried that she is having mini-strokes.” That same report again described Gurtie as
confused and disoriented, with slow speech.
In addition to the medical evidence, the court heard from several witnesses. The
witnesses for the appellants saw very little impact upon Gurtie’s decision-making capacity due
to her Alzheimer’s and dementia. The witnesses for the appellees saw a great deal of impact
upon Gurtie’s decision-making capacity due to her Alzheimer’s and dementia. It is the role
and duty of the trier of fact to determine the credibility of witnesses and the weight to be
accorded to their testimony. We give due deference to the trial court’s superior position in
this regard. Browning v. Browning, 2015 Ark. App. 104.
The determination of whether a deed is void because of the mental incapacity of the
grantor is measured by his or her mental ability at the time of the execution of the deed.
Munzner v. Kushner, 2010 Ark. App. 196, at 6, 375 S.W.3d 647, 651 (citing Andres v. Andres,
1 Ark. App. 75, 83, 613 S.W.2d 404, 409 (1981)). If the grantor is mentally competent at the
time he executes the deed at issue, the deed is valid. Id. The test of mental competency to
execute a deed was set forth by our supreme court in Donaldson v. Johnson, 235 Ark. 348, 359
S.W.2d 810 (1962), as follows:
If the maker of a deed, will, or other instrument has sufficient mental capacity
to retain in his memory, without prompting, the extent and condition of his property,
and to comprehend how he is disposing of it, and to whom, and upon what
consideration, then he possesses sufficient mental capacity to execute such instrument.
Sufficient mental ability to exercise a reasonable judgment concerning these matters
in protecting his own interest in dealing with another is all the law requires. If a
person has such mental capacity, then, in the absence of fraud, duress, or undue
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influence, mental weakness, whether produced by old age or through physical
infirmities, will not invalidate an instrument executed by him.
Id. at 352, 359 S.W.2d at 813 (citations omitted). The mental capacity of the maker of a trust
or deed is presumed, and the burden rests on the contestants to prove incapacity by a
preponderance of the evidence. Munzner, supra (citing Rose v. Dunn, 284 Ark. 42, 46, 679
S.W.2d 180, 183 (1984)).
The appellants contend that the circuit court erred in “failing to recognize that a
grantor could execute a deed during a lucid interval and disregarded the greater weight of
the evidence regarding the decedent/grantor’s lucidity.” They note the testimony of
Marston; Chuck Dyer, the attorney who prepared the deed; and Joyce Parker, Gurtie’s
nursing assistant, who all asserted that Gurtie seemed possessed of her mental faculties at the
time of the execution of the deed. The appellants stress that Dyer and Parker, who were
uninterested in the property itself, testified that Gurtie possessed sufficient mental capacity
during the execution of the deed; they contend that the circuit court therefore erred in
giving greater weight to the medical records than it did to these two “unbiased witnesses.”
The circuit court acknowledged that there had been contradictory testimony about
Gurtie’s mental state at the time she executed the deed; however, it also placed great weight
on the medical evidence before it. Based on its assessment and balancing of the evidence, the
court concluded that the testimony regarding Gurtie’s “good days” did not outweigh the
evidence of Gurtie’s lack of capacity. Credibility determinations resolving inconsistent
assertions are for the trial court to decide. Munzner, supra (citing Painter v. Kerr, 2009 Ark.
App. 580, 336 S.W.3d 425). Thus, giving the proper deference to the trial court’s weighing
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of the credibility of the witnesses, see Clegg, supra, we are unable to say that the trial court
clearly erred in finding that appellees had proved Gurtie’s mental incapacity by a
preponderance of the evidence. We therefore affirm the circuit court on this point.
III. Contempt
In their second point on appeal, the appellants argue that the circuit court erred in
ordering them to pay the judgment within sixty days or face incarceration. As mentioned
above, the court entered a restraining order in August 2012, directing the appellants to jointly
and severally deposit the proceeds of the sale into the registry of the court while the action
was pending. By the time of trial in May 2013, the appellants still had not deposited the funds
into the court’s registry, insisting that they could not do so because they had already spent
the proceeds from the sale of the property. At the end of the trial, the court held each of the
appellants in contempt for failing to comply with its earlier order. The court ordered that the
money judgment be paid within sixty days, but it stated that the appellants could purge
themselves of contempt if they paid the judgment within that time. If they did not do so,
however, the court announced that it would sentence each one of them to thirty days in jail
for their contempt.
The circuit court’s order awarding judgment to the appellees was entered on August
5, 2013. The order recited the court’s contempt findings and sanctions, noting that if the
appellants did not pay the judgment “within sixty days of the date of this Order, then each
will be committed to the Crawford County Detention Center for a period of thirty days.”
On September 23, 2013, the circuit court issued an order for body attachment, directing that
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Dennis Taylor, Linda Marston, Patsy Ellifritz, and Wanda Gragg be committed to the
Crawford County Detention Center for thirty days for contempt of court. The court again
noted that the appellants could purge themselves of the contempt by paying the total sum
of the judgment.
On October 2, 2013, the appellants filed a motion for stay of judgment and to recall
the body attachment, arguing that the judgment had not been entered until August 5, and
the sixty days for paying the judgment had not expired by the time the body attachment was
issued. In their motion and the accompanying brief, the appellants raised several arguments.
Primarily, the appellants contended that the circuit court had not given them the full sixty
days from the date of the entry of the order to pay the judgment; in addition, they asserted
that putting them in jail for failure to pay a judgment was akin to criminal contempt, and
they had not been afforded their necessary due-process rights. Appellants also asserted that
Wanda Gragg, who had been incarcerated, should have been given the opportunity to
demonstrate that she was unable to afford to pay the judgment and that her failure to comply
was thus not willful. These are the same arguments that are made in the appellants’ brief on
appeal.
We are unable to address these arguments. The addendum presented to us by the
appellants does not reflect it, but the circuit court eventually wrote a letter to appellants’
counsel in which it denied the requested relief. No formal order denying the motion was
ever entered, however. This court has noted that
a purported dismissal of claims in a letter opinion that is not incorporated into the
judgment is ineffective. The decisions, opinions, and findings of a court—including
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those expressed in a letter opinion—do not constitute a judgment or decree; they
merely form the bases upon which the judgment or decree is subsequently to be
rendered and are not conclusive unless incorporated in a judgment. Thomas v.
McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967); Moses v. Daurtartas, 53 Ark. App. 242,
922 S.W.2d 345 (1996).
Wilkinson v. Smith, 2012 Ark. App. 604, at 2. We therefore lack an effective ruling on the
arguments that were raised in the appellants’ motion to stay and to recall the body attachment
and which are now raised on appeal. Accordingly, these issues are not preserved for our
appellate review. We do not review on appeal matters on which the trial court did not rule,
and the party raising the point on appeal has the burden to obtain the ruling. Bryant v.
Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008); Hodges v. Huckabee, 338 Ark. 454, 995
S.W.2d 341 (1999).
Affirmed.
VAUGHT, J., agrees.
HARRISON , J., concurs.
BRANDON J. HARRISON , Judge, concurring. I agree with parts I and II of my
colleagues’ decision and concur with part III. A primary aspect of the contempt issue was
preserved for appeal in my view, and I write separately to explain why I would affirm the
circuit court’s contempt-related decision on the merits.
The appellees filed a petition for body attachment more than one year before the final
order was issued in this case. The appellants responded in writing that they could not place
the sale proceeds into the court’s registry as ordered because all the money had been spent.
The appellants made a clear “inability to pay” argument in their response to the petition for
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body attachment. They did so again during the trial when the issues were joined.
Specifically, Linda Marston admitted during direct examination that she could not pay.
Marston testified that she and her siblings each received about $11,100.00 from the sale
proceeds, that the court directed them to pay the money into the registry about a month after
the sale, and that she had spent everything by that time. Marston said that she did not know
if the other siblings had any money to post into the court’s registry.
Appellants’ counsel then introduced Exhibit 10, a document that detailed how Marston
spent her share of the house-sale proceeds. Twenty-eight items were listed, ranging from
“Mr. Rob’s cleaners: $41.25,” to “Jessica Marston for helping with mom: $1,000,” to “For
Misc . . . like clothes, food, gas and bills: $1,954.15,” to “Wal-Mart: $39.34,” to “Wireless
Accessories: $64.95,” to “For fixing our house from Lowels, Yeagers: $1,207.05,” to “Lawyer
Estell: $1,000,” and a number of other rather usual expenses. No evidence regarding how the
other appellants spent their house-sale money was ever even proffered. In other words, no
one but Marston even attempted to provide the circuit court with inability-to-pay proof.
After the bench trial, the court entered judgment on the main issue of the case and
found the appellants in contempt for not complying with the 15 August 2012 order that
directed them to deposit the house-sale proceeds into the court’s registry. The whole case
was reduced to one judgment, entered on 5 August 2013, and appellants timely appealed that
judgment.
The court’s contempt finding was civil in nature. That was how it was generally
handled below—at least until the postjudgment phase and this appeal, when the lines of
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argument admittedly expanded. Recall that in response to the petition for body attachment,
the appellants raised an inability-to-pay defense, which, if accepted, would have been a
complete defense to an attempt to enforce payment through imprisonment. Griffith v. Griffith,
225 Ark. 487, 283 S.W.2d 340 (1955). As a matter of civil-contempt law, the circuit court
had the power to coerce appellants to pay money it had previously ordered them to tender
to the court, though that power is circumscribed by a contemnor’s inability to pay. “If the
court finds inability to comply, the civil contempt citation must be dismissed. . . . If, however,
one capable of paying money is ordered to do so and refuses, a court order imprisoning the
defendant is held to be imprisonment for contempt and not for debt.” 2 David Newbern, et
al., Arkansas Practice Series: Civil Practice and Procedure § 33:7, at 723 (5th ed. 2010); see also
Albarran v. Liberty Healthcare Mgmt., 2013 Ark. App. 738, 431 S.W.3d 310.
This brings us to the proof Marston and the others did or did not present on the
inability-to-pay consideration. As a matter of proof, the court’s decision that Marston and the
other appellants failed to prove an inability to pay was not clearly against the preponderance
of the evidence. The record shows that the appellants consistently failed to pay any money,
for over a year, in violation of the court’s order. The first assertion of an inability to pay was
presented in the response to the petition for body attachment. No affidavits or sworn
statements were attached to the response—all the court had at that point were lawyers’
assertions. Those assertions, standing alone, are not evidence. See Smith v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 753, at 6, 431 S.W.3d 364, 368 (2013) (attorney’s arguments
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not evidence). And one year later, during the bench trial, all the proof of inability to pay
came through Linda Marston, and that evidence did not persuade the court.
The circuit court could have concluded on the record made pretrial and during the
trial that the appellants failed to prove an inability to pay and therefore could not avoid the
civil-contempt punishment. I therefore agree to affirm the circuit court’s judgment.
Medlock and Gramlich, Attorneys at Law, by: M. Jered Medlock and W. Steven Estell,
for appellants.
Law Office of H. Ray Hodnett, by: H. Ray Hodnett, for appellees.
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