Acuff v. Bumgarner

• Court: Arkansas Court of Appeals
• Writing for the Court: JOSEPHINE LINKER HART
• Citation: Acuff v. Bumgarner, 2009 Ark. App. 854, 371 S.W.3d 709 (Ark. App. 2009)
• Decision Date: 16 December 2009
• Docket Number: No. CA 09–269.,CA 09–269.
• Parties: Bethel ACUFF, Appellant, v. Donald V. BUMGARNER, Mildred Bumgarner, and Donald W. Bumgarner, Appellees.

2009 Ark. App. 854

371 S.W.3d 709

Bethel ACUFF, Appellant,

v.Donald V. BUMGARNER, Mildred Bumgarner, and Donald W. Bumgarner, Appellees.

No. CA 09–269.

Court of Appeals of Arkansas.

Dec. 16, 2009.

The Kester Law Firm, by: Charles M. Kester and Dawn C. Egan, Fayetteville, for Appellant.

Benson & Wood, PLC, by: Joe Benson, Fayetteville, for appellees.

JOSEPHINE LINKER HART, Judge.

[Ark. App. 1]In this family land dispute, appellant Bethel Acuff appeals from a summary judgment entered in favor of her brother, appellee Donald Bumgarner. ¹ The summary judgment effectively granted Donald approximately 478 acres of land in Madison County that had once been owned by his and Bethel's parents, Frank and Mary Bumgarner. Bethel appeals and argues that (1) the circuit court failed to give effect to a Kansas probate court's disposition of the property, which she contends would have vested half of the property in her; (2) Donald should be estopped from taking positions contrary to the representations he made in the Kansas proceedings; (3) factual issues exist as to Donald's purported ownership of the [Ark. App. 2]property; and (4) her claims are not barred by the statute of limitations, the statute of frauds, or other defenses. Because genuine issues of material fact remain to be decided and because further factual development is needed on some issues, we reverse and remand.

I. Factual Background

We view the facts in a light most favorable to Bethel, as the party resisting the motion for summary judgment. Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24. Frank and Mary Bumgarner had three children: Donald, Virgil, and the youngest, Bethel, who was born in 1927. In the 1950s and 1960s, Frank and Mary acquired joint ownership of five tracts of land in Madison County containing a total of more than 400 acres. In addition, Frank acquired forty acres in his own name via a grant from the U.S. Bureau of Land Management.

On January 16, 1967, Frank, who was then a Kansas resident, drafted his last will and testament. The will named Donald and Virgil as executors and devised a life estate in all of Frank's property, including his realty, to Mary with “the understanding being that she shall enjoy all of the rents, income, use and profits therefrom, during the term of her natural life, and she shall have the power to sell any of said property as may be necessary to maintain her during her lifetime.” The will further provided that, after Mary's death and payment of her debts and final expenses, all of the property remaining in Frank's estate would vest equally in Donald, Virgil, and Bethel. The will also contained a provision, signed by Mary, in which she “consented” to the will and “accept[ed] the provisions therein made for me in lieu of the rights secured to me by Statute.”

[Ark. App. 3]Frank died on June 29, 1972, and Donald and Virgil submitted the will for probate in Kansas. They filed an estate inventory, which recited that Frank held a “1/2 interest” in the five Madison County tracts that he owned jointly with Mary. Based on that representation, the Kansas court's final settlement stated that Frank owned “an undivided one-half interest” in the five jointly held tracts, despite the fact that he and Mary had acquired the tracts as husband and wife and thus owned them as tenants by the entirety with the right of survivorship. See generally Cloud v. Brandt, 370 Ark. 323, 259 S.W.3d 439 (2007); Lowe v. Morrison, 289 Ark. 459, 711 S.W.2d 833 (1986). The court then declared that, under the terms of Frank's will, Mary was a devisee of a life estate in Frank's one-half interest in the five tracts (and his full interest in the sixth tract), with the power of sale, and that, after Mary's death, the remainder of that property would go to Donald, Virgil, and Bethel equally.

On March 6, 1975, shortly after the Kansas proceedings were closed, Mary deeded to Donald three of the Madison County tracts that she had jointly owned with Frank, consisting of 338 acres. According to Donald, Mary deeded the property to him in exchange for his promise to care for her in the last years of her life. The deed stated that Mary granted Donald a fee-simple interest in the property and that she made the grant as the widow of Frank Bumgarner and “a survivor of a tenancy by the entirety.” According to Bethel, she was unaware of the deed, and Donald led her to believe that she continued to be a one-third heir to the Arkansas property.

Mary died on November 29, 1979. Although she had executed a will on March 6, [Ark. App. 4]1975, devising all of her property to Donald, the will was never probated. Donald would later say that Mary's 1975 conveyance to him of three tracts of the Arkansas property rather than all six tracts was an oversight, and, in 1999, he sought deeds from Bethel and Virgil on the three remaining tracts. Bethel and Virgil signed deeds to Donald in 1999 and 2000, conveying their interests in the three remaining tracts and thereby giving Donald apparent ownership of all six parcels of Arkansas property.

After Virgil died in 2005 without spouse or issue, Bethel claimed that she and Donald, as surviving siblings, each owned a one-half interest in the Arkansas properties. However, Donald asserted full ownership of the properties by virtue of his deeds. As a result, Bethel attempted to open an ancillary administration of Frank Bumgarner's estate in Madison County Circuit Court, Probate Division, for the purpose of distributing the Arkansas property. However, the probate court ruled that Bethel's request was untimely and dismissed her petition. Bethel then filed the present action on August 2, 2007, in Madison County Circuit Court, Civil Division. She asked the court to quiet title to her in one-half of the Arkansas land; to impose a constructive trust or a resulting trust in her favor based on Donald's false representations in acquiring the property and his failure to distribute a proportional share to his siblings; and to hold Donald liable for fraud and breach of fiduciary duty, based on his misrepresentations to her about the nature of her deed and his knowledge of Virgil's incapacity at the time he signed his deed. Both Donald and Bethel filed motions for a judgment on the pleadings, which the circuit court treated as cross-motions for summary [Ark. App. 5]judgment.

In Donald's motion, he argued that the Kansas court's distribution of the Arkansas property was void. He asserted that Frank and Mary owned five of the Arkansas tracts as husband and wife and, therefore, when Frank died, those properties did not pass through Frank's estate but vested in Mary as a surviving tenant by the entirety. Thus, Donald asserted, his deed from Mary conveying three of the five tracts was valid. Donald also argued that (1) the Kansas court had no jurisdiction to determine ownership of Arkansas realty; (2) he did not commit fraud in acquiring Bethel's and Virgil's interests in the three remaining tracts; and (3) Bethel's claims were barred by the statute of frauds, the statute of limitations, res judicata, and estoppel by deed. Attached to his motion were, inter alia, the many deeds, wills, and other documents previously mentioned in this opinion; his affidavit denying any misrepresentations to Bethel and denying that Virgil was incompetent; and an affidavit from Dr. Ivan Box stating that Virgil was not incapacitatedwhen he signed his deed to Donald in 2000. In Bethel's motion, she argued that the Kansas probate court's disposition of Frank's interest in the Arkansas tracts should be given full faith and credit and a res judicata effect. She also claimed that Donald was estopped to argue that the Arkansas property passed outside of Frank's estate, given his representations in the Kansas proceeding that the property was a part of Frank's estate. Additionally, she asserted that Donald committed fraud and breach of fiduciary duty in procuring the deeds from her and Virgil. She attached to her motion the orders, petitions, and other documents from the Kansas proceedings, and an affidavit with supporting [Ark. App. 6]documents stating that Virgil had been adjudged incompetent when he signed his deed; that Donald was acting as Virgil's court-appointed guardian at the time the deed was executed; that she suffered from macular degeneration and could not read her deed; and that Donald told her that her deed was merely a logging easement over the three tracts.

On December 22, 2008, the circuit court made the following ruling:

The plaintiff [Bethel] has requested that this Court find that the order of a probate court in the State of Kansas, rendered over thirty (30) years ago, should not be given effect. The Court finds that, for the reasons stated in the briefs filed by [Donald], the request is barred by estoppel, res judicata, the statute of frauds, lack of jurisdiction, laches, and other reasons argued in [Donald's] brief.

The Court finds that summary judgment should be and hereby is granted in favor of [Donald].

Bethel appeals from that order.

II. Kansas Proceedings

Bethel argues first that the Kansas court resolved the ownership of Frank's one-half interest in the five jointly owned tracts of Arkansas property by distributing it to Mary for life and then to the three children equally, and that the court's orders should be accorded full faith and credit and a res judicata effect. She argues further that Donald, having facilitated and acquiesced in the Kansas court's distribution, should not be heard to make an argument now that the property should never have passed through probate. Donald contends that the Kansas court simply had no jurisdiction to determine the ownership of Arkansas lands.

Donald's general statement of the law is correct as far as it goes. Our courts have recognized that a foreign state's probate judgment is not entitled to full faith and credit or a [Ark. App. 7]res judicata effect on matters pertaining to a decedent's Arkansas realty....