Jones v. Abraham

Julia P. JONES, et al. v. Elizabeth ABRAHAM,
et al.

CA 96-648                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                 Opinion delivered June 4, 1997


1.   Judgment -- summary judgment -- burdens of proof. -- Although
     affidavits and documents in support of motions for summary
     judgment are construed against the moving party, once a prima
     facie showing of entitlement to summary judgment is made, the
     responding party must discard the shielding cloak of formal
     allegations and meet proof with proof by showing a genuine
     issue as to a material fact. 

2.   Wills -- oral contract to make will devising real estate --
     when valid. -- An oral contract to make a will to devise or to
     make a deed to convey real estate is valid when the testimony
     and evidence to establish such a contract is clear, cogent,
     satisfactory, and convincing; the evidence must be so strong
     as to be substantially beyond reasonable doubt; post-1981
     contracts to make a will are governed by Ark. Code Ann.  28-
     24-101 (1987), requiring such contracts to be proven by a
     writing or express reference; however, because the agreement
     in the present case was pre-1981, it was not controlled by the
     statute.

3.   Judgment -- summary judgment erroneously based on heightened
     standard of proof required of oral contracts -- requiring
     clear, cogent and, convincing evidence at summary judgment
     level constituted impermissible weighing of evidence. --  The
     chancellor's requiring "clear, cogent and convincing" evidence
     at the summary judgment level amounted to an impermissible
     weighing of the evidence; it was error for the chancellor to
     award summary judgment based on the heightened standard of
     proof required of oral contracts; even if the facts will
     require a heightened standard of proof at trial, this does not
     change the controlling law that trial courts must use when
     evaluating summary judgment motions. 
  
4.   Judgment -- summary judgment analysis should not include
     weighing and resolving conflicting testimony -- proper
     analysis should only evaluate evidence to determine whether
     dispute exists -- chancellor's determination was
     inappropriate. -- Even though appellants' claims against the
     will appeared weak and not very well developed, facts in the
     probate case left gaps that could fairly be characterized as
     fact questions; the chancellor's determination granting
     summary judgment included a weighing of the evidence, which
     was inappropriate; the chancellor should have merely viewed
     the pleadings and affidavits to ascertain whether issues
     existed to be litigated; it is not the role of summary
     judgment to weigh and resolve conflicting testimony, but to
     simply decide whether such questions exist to be resolved at
     trial; summary judgment analysis does not evaluate evidence
     beyond the question of whether a dispute exists.

5.   Evidence -- evidence improperly excluded -- no ruling made on
     admissibility in light of present-intent exception to hearsay
     rule. -- It was improper for the chancellor to exclude
     evidence that he suspected was inadmissible hearsay, without
     ruling on its admissibility in light of the present-intent
     exception to the hearsay rule.

6.   Civil procedure -- summary judgment testimony must be
     supported with admissible testimony -- affidavits that are
     conclusory rather than factual are insufficient. -- Rule 56(e)
     of the Arkansas Rules of Civil Procedure requires affiants to
     support their summary judgment testimony not with mere
     conclusions, but with admissible testimony; hearsay statements
     should be excluded from summary-judgment analysis since such
     statements would be inadmissible at trial and violate the
     rule's own call for "such facts as would be admissible in
     evidence"; affidavits which are conclusory rather than factual
     are insufficient. 

7.   Civil procedure -- chancellor refused to give weight to
     affidavits -- impossible without adversarial hearing to
     determine if affidavits were admissible -- grant of summary
     judgment reversed and remanded. -- The chancellor apparently
     refused to give any weight to the appellants' affidavits and
     excluded them as inadmissible under Ark. R. Evid. 803;
     appellants cited the hearsay exception involving intent to
     make a will pursuant to Ark. R. Evid. 803(3), and cited three
     cases purporting to apply that exception; without an
     adversarial hearing on the issue, it was impossible to
     determine if the affidavits in question might be admissible,
     and might further the appellants' defense against the summary
     judgment ruling on the probate case; the chancellor's sweeping
     summation that "some of the evidence is inadmissible hearsay"
     was not adequate to support his conclusion; the granting of
     summary judgment on both claims was reversed and remanded.


     Appeal from Clark Chancery and Probate Courts; W. H. "Dub"
Arnold, Chancellor; reversed and remanded.
     Richard F. Hatfield and Don Chaney, for appellants.
     Robert R. Wright, Todd Turner, and Ray Baxter, for appellees.

     Terry Crabtree, Judge.
     Appellants brought suit in chancery court seeking to enforce
an alleged oral contract from 1974 between appellantsþ mother,
Sarah Abraham Klerekoper, and their aunt, Frances Abraham. The
substance of the alleged oral contract was that appellantsþ mother
gave her share of appellantsþ grandfatherþs estate to appellantsþ
aunt, Frances Abraham, with the understanding that Frances would
leave her estate to Sarah Abraham Klerekoperþs children, the
appellants herein.
     In a separate proceeding, appellants also challenged the will
of their aunt that left equal shares of her estate to all of her
nieces and nephews (appellantsþ cousins and appellees herein),
alleging the will was not executed properly, the testator lacked
capacity, and was subject to undue influence. 
     A will that left equal shares to each of her nieces and
nephews was probated at Francesþs death in 1994 and did not uphold
the alleged oral agreement between Sarah and Frances to leave
proportionately more of her estate to appellants.  After extensive
depositions, submissions of documentary evidence, and argument of
counsel, the chancellor ruled for the defendants/appellees on their
motion for summary judgment in both cases.  The chancellorþs ruling
on the chancery case was based on the following, as abstracted in
appellantsþ brief:
     In order to prevail at trial [on the chancery case],
Plaintiffs would have to produce evidence [of an oral
contract] that is clear, cogent and convincing. [Pickens
v. Black, 318 Ark. 474, 481 (1994).]

     There are several flaws in Plaintiffsþ case at this
point.  First, a written statement was signed by Sarah
Klerekoper which says that she was transferring her
interest in her fatherþs estate to her sister, Frances
Abraham, þto pay my debt to you.þ  Plaintiffs argue that
Sarah never owed Frances any money (according to her
husbandþs affidavit) and that Frances needed funds to
acquire the interest in the John Abraham estate from her
brothers.  Plaintiffs contend that in return for this
transfer from Sarah, Frances promised to leave her
property to Sarahþs children.  However, the written
statement signed by Sarah at the time made no mention of
an agreement of the type alleged.  The agreement stated
that the consideration for the transfer was in payment of
a debt by Sarah to Frances.  Further, there is another
writing by Sarah Klerekoper discharging Frances Abraham
for all actions, claims and demands that now or may
hereafter accrue.  Both documents were executed in 1973
and 1974, around the time of the alleged oral agreement. 
Both are exactly contrary to the assertions of
Plaintiffs.  These are the only two written documents
found relative to what happened at that time between the
two sisters.

     Secondly, the only two people who know what
transpired between them were the two long deceased
sisters.  What has been stated in depositions and
affidavits about the alleged agreement between them is
predicated almost entirely on inadmissible hearsay.  Even
if admissible, the statements of Sarah would not be
sufficient, standing alone, to establish by þclear,
cogent and convincingþ evidence þsubstantially beyond a
reasonable doubtþ that such an agreement between the two
sisters existed. 

     What is missing is any reliable proof, not grounded
in hearsay, to establish an enforceable contract that is
the subject of this equity suit.  

     The chancellor incorporated by reference his memorandum
disposing of the chancery case into his memorandum granting summary
judgment on the probate case.  In part, his reasoning follows, as
abstracted:
     No evidence was offered at that hearing nor by way
of depositions or affidavits that would suffice even to
establish a prima facie case for the invalidity of the
Will filed herein.  As stated in the separate Chancery
opinion, attached hereto, much of what was presented was
predicated upon hearsay.  The Plaintiffsþ case seems
largely to have depended on their ability to establish an
enforceable oral contract between these two deceased
sisters, which they failed to do in the Chancery case. 

     For purposes of appeal, the chancery and probate cases were
consolidated.  From the chancellorþs two memorandum opinions,
appellants challenge the grant of summary judgment and dispute that
affidavits were properly excluded from consideration as hearsay not
within an exception.
     1.  Summary Judgment
     Summary judgment disposition is governed by Arkansas Rule of
Civil Procedure 56, and a thoroughly developed body of accompanying
case law.  In pertinent part, Rule 56 reads:
     The judgment sought shall be rendered forthwith if the
     pleadings, depositions, answers to interrogatories and
     admissions on file, together with the affidavits, if any,
     show that there is no genuine issue as to any material
     fact and that the moving party is entitled to a judgment
     as a matter of law.    

Ark. R. Civ. P. 56(c).  Here, the summary judgment evaluation was
aided by a multitude of affidavits and documentary evidence from
both sides. 
     Although affidavits and documents in support of motions for
summary judgment are construed against the moving party, once a
prima facie showing of entitlement to summary judgment is made, the
responding party must discard the shielding cloak of formal
allegations and meet proof with proof by showing a genuine issue as
to a material fact. J.M. Prod. v. Arkansas Capital Corp., 51 Ark.
App. 85, 90, 910 S.W.2d 702, 704 (1995) (citing Mathews v. Garner,
25 Ark. App. 27, 751 S.W.2d 359 (1988)).
          A.  Chancery Case -- Oral Contract to Make a Will
     In McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973), the
supreme court stated that an oral contract to make a will to devise
or to make a deed to convey real estate is valid when the testimony
and evidence to establish such a contract is clear, cogent,
satisfactory, and convincing.  Further, the evidence must be so
strong as to be substantially beyond reasonable doubt.  Id. See
also Pickens v. Black, 318 Ark. 474, 481, 885 S.W.2d 872, 876
(1994).  Post-1981 contracts to make a will are governed by Ark.
Code Ann.  28-24-101 (1987), requiring such contracts to be proven
by a writing or express reference.  However, the purported
agreement in the present case is pre-1981 and, therefore, not
controlled by the statute.
     However, appellees fail to show where this heightened burden
of proof has ever been applied at the summary judgment level.  Cf.
Pickens, supra. (court affirmed grant of partial summary judgment
on a different issue).  Even if the facts will require a heightened
standard of proof at trial, this does not change the controlling
law that trial courts must use when evaluating summary judgment
motions.  Requiring þclear, cogent and convincingþ evidence at the
summary judgment level amounts to an impermissible weighing of the
evidence.  Accordingly, it was error for the chancellor to award
summary judgment based on the heightened standard of proof required
of oral contracts under Pickens, supra.  
          B.  Standard of Review -- Probate Case
     The proper analysis for considering the summary judgment
disposition of the probate case is also based on Ark. R. Civ. 56,
discussed above.  While appellantsþ claims against the will may
appear weak and not very well developed, that is a weighing of the
evidence, which is inappropriate when the chancellor should merely
view the pleadings and affidavits to ascertain whether issues exist
to be litigated.  
     The facts in the probate case still leave some gaps that 
could fairly be characterized as fact questions.  For instance,
sworn testimony from Francesþs physician stated that her mental
prowess began to diminish in 1987, the same year that the contested
will was executed.  While other testimony contradicts this, it is
not the role of summary judgment to weigh and resolve conflicting
testimony, but to simply decide whether such questions exist to be
resolved at trial.  Further, while Fairfax Abraham, Jr., did not
take a disproportionate share under the challenged 1987 will, that
is only one factor to consider in whether he exercised undue
influence by taking Frances to his own attorney, taken together
with Fairfaxþs developing confidential relationship with his ailing
aunt.  Again, these facts may stack up weakly against the
contradicting testimony, but the summary judgment analysis does not
evaluate evidence beyond the question of whether a dispute exists.
     Further, it was improper for the chancellor to exclude
evidence that he suspected was inadmissible hearsay, without ruling
on its admissibility in light of the present-intent exception to
the hearsay rule. Ark. R. Evid. 803(c).
     2.  Admissible Evidence
     The Arkansas Supreme Court has recognized that Rule 56(e)
requires affiants to support their summary judgment testimony not
with mere conclusions, but with admissible testimony.  A line of
cases show the court excluding hearsay statements from the summary
judgment analysis since such statements would be inadmissible at
trial and violate the ruleþs own call for þsuch facts as would be
admissible in evidence.þ Ark. R. Civ. P. 56(e).  
          ARCP Rule 56(e) requires that "[s]upporting and
     opposing affidavits shall be made on personal knowledge,
     shall set forth such facts as would be admissible in
     evidence, and shall show affirmatively that the affiant
     is competent to testify to the matters stated therein." 
     This court has stated that affidavits which are
     conclusory rather than factual are insufficient.  See
     McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). 
     Mrs. Swindle's affidavit merely declares that she was
     told Wright was the owner of the real estate company by
     its agents.  Her affidavit does nothing more than assert
     a conclusion that is based on hearsay.  Nothing in the
     affidavit indicates Mrs. Swindle had personal knowledge
     that Wright was the owner of Wright Realty.  Mrs.
     Swindle's affidavit does not meet the requirements of
     Rule 56(e), and therefore does not create a dispute as to
     the fact of ownership of Wright Realty.

Swindle v. Lumbermans Mut. Casualty Co., 315 Ark. 415, 421-22, 869 S.W.2d 681, 684 (1993).
     In the present case, the chancellor apparently refused to give
any weight to the appellantsþ affidavits and excluded them as
inadmissible under Ark. R. Evid. 803.  Appellants cite the hearsay
exception involving intent to make a will pursuant to Ark. R. Evid.
803(3), and cite three cases purporting to apply that exception. 
Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Williams
v. Robinson, 251 Ark. 1002, 476 S.W.2d 1 (1972); and Easterling v.
Weedman, 54 Ark. App. 22, 922 S.W.2d 755 (1996).
     Without an adversarial hearing on the issue, it is impossible
to determine if the affidavits in question may be admissible, and
may further the appellantsþ defense against the summary judgment
ruling on the probate case.  The chancellorþs sweeping summation
that þsome of the evidence is inadmissible hearsayþ is not adequate
to support his conclusion.
     Accordingly, the granting of summary judgment on both claims
is reversed and remanded.
     Reversed and remanded.  
     Griffen and Roaf, JJ., agree.