Middleton v. Middleton

• Decision Date: 04 April 2018
• Docket Number: No. CV–17–738,CV–17–738
• Citation: 548 S.W.3d 199
• Parties: Elvis MIDDLETON and Brittney Middleton, Appellants v. Jennifer MIDDLETON, Administratrix of the Estate of Joshua Middleton, Deceased, Appellee
• Court: Arkansas Court of Appeals

548 S.W.3d 199

Elvis MIDDLETON and Brittney Middleton, Appellants

v.Jennifer MIDDLETON, Administratrix of the Estate of Joshua Middleton, Deceased, Appellee

No. CV–17–738

Court of Appeals of Arkansas, DIVISIONS I & II.

Opinion Delivered: April 4, 2018

Davis Law Firm, by: Stephen B. Davis, for appellants.

One brief only.

WAYMOND M. BROWN, JudgeThis is a one-brief appeal from the circuit court's order denying the appellants' motion to amend the pleadings and dismiss the case.On appeal, the appellants argue that the circuit court erred as a matter of law in (1) refusing to amend the pleadings to conform to the evidence, which was received without objection; and (2) permitting the estate of Joshua Middleton, deceased, to pursue a claim that belonged to the estate of his father, Leon Middleton.We affirm.

On December 6, 2002, Robert and Wilma Middleton, husband and wife, deeded certain property containing sixty acres of land to Joshua Leon Middleton and Leon Middleton, son and father, respectively, as joint tenants with right of survivorship.¹The deed was filed on February 12, 2003.Joshua went missing on January 21, 2005.

On July 19, 2006, Leon and Gladys Middleton, husband and wife, sold their "UNDIVIDED ONE–HALF INTEREST" in the same property to appellants.At the time of purchase, there were several old vehicle bodies and other pieces of scrap metal on the property, which Elvis asked Leon to move; none of it was ever moved.According to Elvis, Leon told him the scraps would go with the property if something happened to Leon; Elvis took no further action with regard to the scrap metal.Leon died on April 6, 2008.

On October 27 and November 5, 2010, Elvis sold the scrap cars and metal still remaining on the land he purchased from Leon as well as scrap cars and metal from adjacent property owned by Leon's brother for $44,682.75.²Joshua was declared dead by order entered on August 25, 2014.The order stated that Joshua's date of death on his death certificate was to be the same as the date of the order declaring his death.

Jennifer Middleton filed a complaint on April 6, 2015, as the personal representative of the estate of Joshua Middleton, asserting that Leon had predeceased Joshua because Leon's death occurred prior to the legal declaration of Joshua's death.Accordingly, she argued that Leon's interest in the land, which had previously been sold to appellants, passed to Joshua by joint tenancy with right of survivorship; and so, the argument went, Joshua became the owner in fee simple to the entire sixty acres.

Appellants answered on April 25, 2015, denying all material allegations and pleading affirmatively that Joshua had been dead since January 21, 2005, and that Leon was the owner of the subject property in fee simple on July 19, 2006.³They sought to have the complaint dismissed.Additionally, appellants counterclaimed to have the deed reformed.Jennifer and appellants each made alternative arguments regarding ownership of the real estate property.

Jennifer answered appellants' counterclaim denying all claims and affirmatively pled defenses of statute of frauds, statute of limitations, laches, and estoppel on May 11, 2015.Appellants filed an amended answer on November 30, 2015, in which they additionally pled affirmatively that "to the extent that [Jennifer] claims that the junk vehicles which were previously the personal property of Leon Middleton became the personal property of the Estate of Joshua Middleton, deceased, [appellants] state that said junk vehicles were abandoned by Leon Middleton prior to his death, and became the personal property of the Defendants."

A trial on the matter was held on December 2, 2015.After the parties rested, appellants orally moved to amend the pleadings to conform to the evidence pursuant to Arkansas Rule of Civil Procedure 15 and asked the circuit court to take judicial notice of the pleadings.⁴Jennifer argued that appellants could not amend their pleadings to raise an affirmative defense as they are required to be pled by the Arkansas Rules of Civil Procedure.The parties agreed to submit briefs; only appellants filed a brief.

The circuit court filed a letter on March 30, 2016.The letter stated that the parties settled the issues regarding the real property prior to trial, leaving only the issues surrounding the personal property, i.e., the scrap metal.It made findings of fact, which noted that while appellants received $44,682.75 for the old vehicles and scrap metal Elvis sold, only 50 percent of the scrap sold had been located on the sixty acres.

The circuit court went on to state that appellants had moved to have the pleadings conform to the proof so that they could allege a statute-of-limitations defense and that Jennifer objected.It then found the following:

Pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof.Coran Auto Sales v. Harris , 74 Ark. App. 145, 45 S.W.3d 856(2001).However, Rule 15(b) of the Arkansas Rules of Civil Procedure provides that issues not raised in the pleadings but tried by express of implied consent of the parties shall be treated in all respects as if they had been pled.[Jennifer] never expressly consented to the trial of the statute of limitations defense.Thus, the issue for the court is whether [Jennifer] impliedly consented to the litigation of such defense.

Evidence was presented by both parties, without objection, from which a statute of limitations defense could be argued.⁵The evidence was relevant to claims which had been pled.Consent to conforming the pleadings to the proof will not be implied merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one.Heartland Community Bank v. Holt , 68 Ark. App. 30, 3 S.W.3d 694(1999).In this case, [Jennifer] was not put on notice of the unpled defense sufficient to establish implied consent.Amending the pleadings following the trial would result in unfair prejudice.Thus, the court must, and hereby does, deny [appellants']motion to amend the pleadings to conform to the proof at trial.

Then, after finding that Elvis detrimentally relied on Leon's promise that the scrap would go with the land if something happened—a statement that it noted was within the hearsay exceptions as it was a statement against his own pecuniary interest—the circuit court found Joshua's estate was entitled to half of the sum of the sale of the scrap that was on the sixty acres.The estate was awarded $11,170.68 plus $165 for court costs, in addition to 6 percent interest per annum from November 5, 2010, to the date of final judgement; and 10 percent interest per annum, until the same is paid.Appellants were ordered to prepare an accounting and file it with the court within forty-five days after entry of the final judgment.

The circuit court's order granting judgment, entered on July 5, 2016, was the same as its letter in pertinent part, with the addition that the case was "not subject to the determination of heirs property" pursuant to Arkansas Code Annotated section 18–60–401 and that, by agreement and stipulation of the parties, "the land was not subject to partition in kind by commissioners as provided by Arkansas Code Annotated sections 18–60–414 through 417"; therefore, the clerk of the court was appointed to sell the sixty acres.The circuit court retained jurisdiction for any required additional orders.

Appellants moved to deposit $11,170.68 into the registry of the court on July 8, 2016; the motion was granted in an order signed August 29, 2016, and entered on September 6, 2016.Jennifer filed a motion to modify the July 5, 2016 judgment and a separate brief in support on July 6, 2016.Therein, she argued that a mistake had been made and that the circuit court should give the $22,341.39 value of the scrap Elvis sold from surrounding property to Joshua's estate as appellants' detrimental-reliance argument regarding the scrap metal sold from the sixty acres does not apply to the scrap metal sold on the land surrounding the sixty acres; that land belonged to Leon's brother, who testified that the scrap belonged to Leon and was on his property with permission.On the same date, appellants responded to the motion to modify, agreeing that a mistake had been made, but asserting that the mistake was due to the circuit court's error in granting judgment on a claim that was barred by the applicable statute of limitations.

At an August 24, 2016 hearing, appellants argued that the personal property and money debt in question belonged to Leon; therefore, Leon's heirs did not have standing to pursue his money debts, which could only be pursued by his administrator.Jennifer objected to "another defense being alleged three months after a judgment has been entered."

On October 24, 2016, appellants filed a motion to amend the pleadings and dismiss the claim for money damages and a separate brief in support.Therein, they asserted that the July 5, 2016 order was not final and appealable; they did not expressly state why they believed the order was not final.They asserted that evidence was received at trial without objection that proved that Jennifer's claim for money damages was barred by the applicable statute of limitations and that she lacked standing to pursue a debt, which if money were owed, would be owed to Leon's estate and not Joshua's estate.Accordingly, they sought to amend the pleadings to assert the affirmative defenses of statute of limitations and lack of standing because the order was not final and did not have a Rule 54(b) certificate.Jennifer answered denying all allegations in the appellants' motion.On November 17, 2016, appellants filed a notice of a deposit of $15,964.36—representing the award with costs, plus interest from November 5, 2010, to November 18, 2016, at 6 percent per annum—into the registry of the court.

On May 10, 2017, the circuit court entered an order stating that the sixty acres...