Jackson v. Kelly, 00-01450

• Decision Date: 31 May 2001
• Docket Number: 00-01450
• Citation: 44 S.W.3d 328
• Parties: JUANITA JACKSON, APPELLANT, v. JERRY KELLY, APPELLEE.SUPREME COURT OF ARKANSAS 31 May 2001 APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT,DAVID N. LASER, JUDGE, AFFIRMED. ANNABELLE CLINTON IMBER, Associate Justice This appeal raises an issue of first impression --whether Arkansas recognizes the tort of intentional interference with inheritance. We decline to recognize the tort in this case because the appellant's remedy in probate court would have been adequate had she prevailed in her will contest. Alta Austin died in 1997, and was survived by her two children, Juanita Jackson and Tommy Austin. Following her death, Tommy Austin petitioned the Lonoke County Probate Court to have her
• Court: Arkansas Supreme Court

JUANITA JACKSON, APPELLANT v JERRY KELLY, APPELLEE

No. 00-01450

SUPREME COURT OF ARKANSAS

31 May 2001

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, C-2000-86, HON. DAVID N. LASER, JUDGE, AFFIRMED.

ANNABELLE CLINTON IMBER, Associate Justice

This appeal raises an issue of first impression --whether Arkansas recognizes the tort of intentional interference with inheritance. We decline to recognize the tort in this case because the appellant's remedy in probate court would have been adequate had she prevailed in her will contest.

Alta Austin died in 1997, and was survived by her two children, Juanita Jackson and Tommy Austin. Following her death, Tommy Austin petitioned the Lonoke County Probate Court to have her January 14, 1994 will admitted to probate. The will named Tommy as the sole beneficiary of Mrs. Austin's estate and specifically excluded Juanita. Thereafter, Juanita contested the will in the probate court on the following grounds: (1) Mrs. Austin did not have the requisite testamentary intent to execute the document as required by Arkansas law, and (2) Mrs. Austin was subject to undue influence in preparing and executing the document. The probate court found that Juanita had failed to meet her burden of proof to invalidate the will, and admitted the will to probate. Juanita appealed the probate court's decision to the Arkansas Court of Appeals. In an unpublished opinion, the court of appeals concluded that the probate court's findings were not clearly erroneous and affirmed the court's decision to admit the will to probate. Jackson v. Austin, CA99-34, slip op. (Ark. App. September 22, 1999).

Having lost in her attempt to invalidate the will in probate court, Juanita filed another action in the Mississippi County Circuit Court. In her complaint and amended complaint, Juanita made claims for (1) civil conspiracy and (2) tortious interference with an expected inheritance. Particularly, she alleged that Mrs. Austin had told Juanita many times that she would inherit one-half of Mrs. Austin's property, thereby causing Juanita to expect an inheritance from her mother. However, on or about August 13, 1993, Juanita's son, Andrew Jackson, borrowed $30,000 from Citizen's Bank and Trust Company of Carlisle, and, at Andrew's request, Mrs. Austin co-signed the note and placed two certificates of deposit in the amount of $37,600 as collateral for the loan. Juanita claimed that she had nothing to do with procuring the loan. On December 23, 1993, the due date on the loan, Andrew failed to repay the loan. According to Juanita, Andrew had contacted the bank about an extension on the loan and Mrs. Austin had agreed to the extension in discussions with Andrew.

Juanita further alleged in her complaint that Tommy Austin and his wife, Betty Austin, convinced Mrs. Austin that the bank would execute on her certificates of deposit due to Andrew's failure to repay the loan on its due date. On or about January 10, 1994, Betty, who assisted Mrs. Austin in personal matters, made an appointment for Mrs. Austin with attorney Jerry Kelly. Four days later, Betty took Mrs. Austin to Mr. Kelly's office in Carlisle, where Mr. Kelly conferred with Mrs. Austin and prepared the will that is the subject of this matter. Juanita claimed that the only reason Mrs. Austin prepared the will on January 14, 1994, and thereby disinherited Juanita, was that Mrs. Austin was convinced she would lose her certificates of deposit because of Andrew's delayed repayment of the loan.¹ Regarding the actions of Mr. Kelly, Juanita alleged that a loan officer at the bank talked with Mr. Kelly on or about January 14, 1994, and told him that the bank was not acting to take Mrs. Austin's certificates of deposit and that no such action was contemplated at that time. After Andrew and Juanita were served with copies of Mrs. Austin's complaint, on or about January 18, 1994, Andrew immediately repaid the loan in full, whereupon the bank released the certificates of deposit to Mrs. Austin. Consequently, the bank never executed upon Mrs. Austin's certificates of deposit.

Juanita named Mr. Kelly and Betty Austin as defendants in her complaint and averred that both defendants, jointly and severally, conspired to have Alta Austin sign the January 14, 1994 will, leaving all of her estate to Tommy, and interfered with Juanita's expected inheritance. She prayed for compensatory damaged equal to one-half of Alta Austin's property, legal costs, and punitive damages.

In his answer, Mr. Kelly denied that venue was proper in Mississippi County and moved to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(3).² He also disputed Juanita's allegations (1) that she had nothing to do with procuring the bank loan; (2) that the bank had extended the loan; (3) that Mrs. Austin had agreed to the extension; and (4) that a loan officer had advised Mr. Kelly on January 14, 1994, that the bank was not taking action against Mrs. Austin's certificates of deposit. Furthermore, based upon his assertion that the complaint failed to state facts upon which relief could be granted, Mr. Kelly moved to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(6). Finally, he asserted that Juanita's claim was waived by the applicable statute of limitations, as well as the doctrines of res judicata and collateral estoppel. In a joint memorandum, Mr. Kelly and Betty argued that the suit was barred by the probate court's order admitting the January 14, 1994 will to probate pursuant to the doctrines of res judicata and collateral estoppel, and that the tort of intentional interference with expected inheritance had not been recognized in Arkansas.

The circuit court treated the joint motion to dismiss as a motion for summary judgment and, after conducting a hearing, entered an order dismissing Juanita's claimsagainst Mr. Kelly and Betty. The order stated, in pertinent part:

"[T]he tort of interference with prospective inheritance is not recognized in the State of Arkansas."

"Even if the tort should be recognized, issue preclusion clearly bars the claim of plaintiff against defendant Betty Austin."

"[T]he claim of plaintiff against defendant Jerry Kelly fails as a matter of law based on no dispute as to any issue of material fact. The court finds that even if the tort of interference with prospective inheritance were recognized by the court that under the record before the court, defendant Kelly is entitled to prevail because [sic] an absence of proof as to some of the essential elements of that tort."

Also, the findings of fact and conclusions of law announced orally by the circuit court at the conclusion of the hearing were incorporated into and attached to the written order. With regard to venue, the court found as follows: "I think that the broadening of the dismissal motions to summary judgment motions likely constitutes a waiver of the venue argument because it gets into substantive issues that would be dispositive on the merits." With regard to the civil conspiracy allegation against Mr. Kelly and Betty Austin, the court stated:

I don't think that there's any doubt without getting into the not-yet recognized tort of interference with expectancy of an inheritance that's been argued, and it's been asserted by the plaintiffs in the case; without getting into that, I think that the issue, I think that issuepreclusion clearly bars the claim for summary judgment purposes against Betty Austin, and am so holding.

As to Kelly, any conspiracy, any alleged conspiracy with Betty Austin that would lead to undue influence procurement or things of that nature, whether standing alone or as part of a prong of proof for the expectancy tort, uh, interference with expectancy tort, and the probate court has already found there was no undue influence, there was no procurement.

Thus, the circuit court found that the civil conspiracy claim against both defendants was barred by the previous probate court action. Juanita appeals from the circuit court's order dismissing her claim against Mr. Kelly for tortious interference with an expected inheritance. She does not appeal from that part of the order dismissing Betty; nor does she appeal the dismissal of the civil conspiracy claim.

For her first point on appeal, Juanita argues that the trial court erred when it concluded that the tort of interference with inheritance is not recognized in Arkansas. She asserts that although there is no Arkansas case directly on point, this court impliedly recognized the cause of action in Anderson v. Bank of Hot Springs, 304 Ark. 164, 801 S.W.2d 273 (1990). We disagree. In that case, we affirmed the trial court's summary judgment dismissal of a claim for tortious interference with expected inheritance. Id. In doing so, however, this court did not decide whether such acause of action actually existed under Arkansas law because the issue was never raised by the parties.

Juanita urges this court to recognize the tort of interference with inheritance and cites as authority section 774B of the Restatement (Second) of Torts, which is entitled "Intentional Interference with Inheritance or Gift":

One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Restatement (Second) of Torts § 774B (1979). The question then is whether we should adopt that section of the Restatement (Second) of Torts as the law in Arkansas. We recently laid down principles to guide us in making such a decision:

This Court treads cautiously when deciding whether to recognize a new tort. While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient...