Moore v. Moore, CA

• Decision Date: 10 June 1987
• Docket Number: No. CA,CA
• Citation: Moore v. Moore, 21 Ark.App. 165, 731 S.W.2d 215 (Ark. App. 1987)
• Parties: W.D. MOORE and Evelyn Moore, Appellants, v. Hattie MOORE, Individually and as Executrix of the Estate of Doyle Moore, Deceased, et al., Appellees. 86-311.
• Court: Arkansas Court of Appeals

Page 215

731 S.W.2d 215

21 Ark.App. 165

W.D. MOORE and Evelyn Moore, Appellants, v.Hattie MOORE, Individually and as Executrix of the Estate of Doyle Moore, Deceased, et al., Appellees.

No. CA 86-311.

Court of Appeals of Arkansas Division II.

June 10, 1987.

Rehearing Denied July 8, 1987.

Friday, Eldredge & Clark by Michael G. Thompson, James Edward Harris and J. Lee Brown, Cliff Jackson, Roy Finch, Little Rock, for appellants.

Hilburn, Bethune, Calhoon, Harper & Pruniski by Sam Hilburn and Paula Jamell Storeygard, N. Little Rock, for appellees.

COOPER, Judge.

The appellant, W.D. Moore, filed suit against the executrix of his deceased brother's estate, the appelleeHattie Moore, alleging that he was entitled to one-half of the stock of a corporation, Arkansas Parts Warehouse, Inc.W.D. Moore based his complaint on a 1952 contract executed by the brothers which provided that W.D. Moore was to be the beneficial owner of one-half of the outstanding stock of the corporation, and that Doyle Moore was to hold the title in his name.W.D. Moore alleged that his brother was the trustee for his one-half of the stock, and asked the court to find that there was an implied, resulting, or constructive trust.

The other appellant, intervenorEvelyn Moore, is the estranged wife of the appellant, W.D. Moore.In her complaint filed August 5, 1985, she alleged that she was a third party beneficiary to the 1952 contract, and that both brothers had committed fraud against her by lying during depositions taken during pending divorce proceedings and attempting to hide the true ownership of the corporation's stock and other property.

The appellee answered, denying the allegations and pleading the affirmative defenses of the statute of non-claim, statute of limitations, estoppel, and laches.A hearing was held on January 21, 1986, and by agreement of the parties, the chancellor first heard the arguments of counsel on the affirmative defenses.Ruling from the bench, the chancellor dismissed Evelyn Moore's claims.A decree, dated April 22, 1986, was entered nunc pro tunc dismissing the claims of both appellants.However, before the entry of the written order, the appellants attempted to amend their complaint.In the amended complaint, W.D. Moore alleged that he was also entitled to one-half ownership of two parcels of real estate, and he added the other appellees as necessary parties, alleging that they had been wrongfully issued stock.The chancellor also dismissed the amended complaint on the grounds of res judicata, collateral estoppel, statute of non-claim, statute of limitations, unclean hands and equitable estoppel.

In this appeal, the appellants argue that the chancellor erred in dismissing their complaints on the grounds of non-claim and statute of limitations, and that the chancellor erred in dismissing their amended complaints.The appellant, Evelyn Moore, also argues that the trial court erred in dismissing her complaint in intervention based upon the fact that she was not a third party beneficiary to the contract, and that he erred in dismissing her fraud claim without taking any evidence.We find the trial court was correct in dismissing the claims of the intervenor, but erred in dismissing the claims of W.D. Moore.

For the sake of clarity, we will first address Evelyn Moore's arguments, then the arguments of W.D. Moore concerning the dismissal of the complaint, and then the amended complaint.Only facts necessary to an understanding of the issues involved will be recited.

THE TRIAL COURT DID NOT ERR IN DISMISSING THE COMPLAINTS

OF THE APPELLANT/INTERVENOR, EVELYN MOORE.

The chancellor first found that the intervenor, Evelyn Moore, had no interest in the stock in her own right, and we agree.Any rights she may have had in the stock, or in the real property, would vest through her relationship with her husband, W.D. Moore.At the time of the hearing they had been separated since 1974, and, even though a divorce was pending, they had not been divorced.Arkansas Statutes Annotated § 34-1214(a)(Supp.1985) states that marital property shall be distributed at the time the divorce decree is entered.A chancellor has no authority to dispose of property rights in an award of separate maintenance.Coleman v. Coleman, 7 Ark.App. 280, 648 S.W.2d 75(1983).Therefore, even if the chancellor had heard the merits of the case and decided in favor of W.D. Moore, he would have had no authority to issue the intervenor her share.

The appellant's argument that she is a third party beneficiary to the contract between the two brothers is also without merit.There is a presumption that parties contract only for the benefit of themselves, and a contract will not be considered as having been made for the use and benefit of a third party unless it clearly appears that this was the intention of the parties.Brown v. Summerlin Associates, Inc., 272 Ark. 298, 614 S.W.2d 227(1981).Nowhere does the intervenor's name appear in the 1952, or later, contracts.At the time the contract was executed, the brothers believed that it was a violation of the Fair Trade Laws to operate their auto parts business at both the wholesale and retail levels.Therefore, they dissolved their partnership and issued all of the stock in the new corporation to the now-deceased brother.The contract stated that W.D. Moore had beneficial ownership in one-half of the stock of the corporation.The only other written contract executed by the brothers is one which provided for the continuity of the business in the case of death or disability of one of the brothers.However, that contract was later rescinded by a written agreement signed by both brothers and their wives.

The appellant's arguments regarding fraud are also meritless.It is true that, in some circumstances, the wife may be able to sue her husband for tortious fraud.SeeLiles v. Liles, 289 Ark. 159, 711 S.W.2d 447(1986);Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15(1957).However, the intervenor admitted that she suspected in 1974 that her husband and his brother had lied and were attempting to defraud her.Therefore, the trial court was correct in dismissing any fraud claim the intervenor may have had on the grounds of the statute of limitations.Ark.Stat.Ann. § 37-206(Repl.1962).

THE TRIAL COURT ERRED IN DISMISSING W.D. MOORE'S CLAIM TO

THE STOCK ON THE BASIS OF THE STATUTE OF NON-CLAIM.

The trial court found that W.D. Moore's claim to the stock was based on breach of trust and that it was barred by the statute of non-claim, which, at the time of Doyle Moore's death, provided that contract actions against a decedent's estate were to be filed or verified to the personal representative within six months after the date of the first publication of notice to creditors or be forever barred.Ark.Stat.Ann. § 62-2601(a)(Repl.1971).The brother, Doyle Moore, died on September 1, 1982, and notice to creditors was first published on September 17, 1982.W.D. Moore's complaint was not filed until 1985.However, we find that W.D. Moore's complaint was timely filed because his cause of action was based on breach of title.

The statute of non-claim does not refer to claims of title or for the recovery of property, as claims of such character are not claims against the estate of the deceased.Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88(1965);Fred v. Asbury, 105 Ark. 494, 152 S.W. 155(1912).The appellees admit that these cases make an exception to the non-claim statute but argue that the rule applies only to real estate.We do not agree.

The purpose of the statute of non-claim is to facilitate payment of claims against an estate within a particular time period, and not to defeat a just claim on a technicality that might entrap the claimant.Parham v. Pelegrin, 468 F.2d 719(8th Cir.1972).This purpose is not advanced by limiting the exception to claims for real estate, especially when, as in the case at bar, the claimant is not seeking recovery of a debt, but is asking the representative of the decedent's estate to return to him property that belongs to him.As stated in C.J.S.:

[P]resentation is ordinarily required of all claims against [the] decedent, the term "claims" comprehending such debts or demands as might have been enforced against the decedent by personal actions for the recovery of money; but claims of title or for the possession or recovery of specific property need not be presented.

34 C.J.S.Executors and Administrators§ 398(1942).In the present case, W.D. Moore alleges that identifiable personal property in the hands of the administrator of Doyle Moore's estate belongs to him; he is not claiming that the stock is owed to him as a debt or claiming money for the value of the stock.Therefore, we hold that the chancellor erred in dismissing the complaint as it pertained to the stock.

THE TRIAL COURT ERRED IN DISMISSING

W.D. MOORE'S CLAIM TO CERTAIN REAL ESTATE BASED ON

THE STATUTE OF LIMITATIONS.

Although the issues concerning the real estate were not raised by W.D. Moore in his first complaint, the chancellor allowed the attorneys to argue the affirmative defenses pled by the appellees as they applied to the real estate.One tract in question, located in Little Rock, is a parcel of land on which the business is now situated, purchased by Doyle and Hattie Moore.The other parcel of land is located in Fayetteville, Arkansas.

W.D. Moore again bases his claim on the 1952 contract.That contract provided that both of the brothers would own one-half of any commercial enterprise either is engaged in, and the only exclusions were the respective homes and personal property of the parties, or any real estate purchased by them for speculation out of individual funds.

The trial court found that, if a trust relationship existed, the appellant, W.D. Moore, was put on constructive notice that the trust was being repudiated when Doyle Moore conveyed the Little Rock property to the Doyle Moore...