Kingsbury v. Robertson

Ilene KINGSBURY v. R. Maxine ROBERTSON

95-435                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 3, 1996


1.   Appeal & error -- proper summary of pleadings essential for
     court to consider case. -- A proper summary of the pleadings
     upon which the case was brought is essential for the appellate
     court to consider the case. 

2.   Appeal & error -- exhibits necessary for clear understanding
     of case must be included in abstract -- seven judges cannot
     examine one transcript. -- Under Ark. Sup. Ct. R. 4-2(a)(6),
     exhibits necessary for a clear understanding of a case must be
     included in an abstract; when such exhibits are not included
     in the abstract, the court will summarily affirm; it is
     impractical to require all seven members of the court to
     examine one transcript in order to decide an issue; the burden
     on an appellant to reproduce exhibits is slight, but the
     ability of seven justices to understand the issues presented
     is essential.

3.   Appeal & error -- complaint and exhibits not abstracted --
     decision of trial court summarily affirmed. -- Where
     appellant's complaint and exhibits to her responsive pleading
     presented the core of her argument that the limitations
     statute did not bar her claims, yet those items were not
     abstracted for the court's consideration, her argument failed;
     because appellant's abstract was inadequate for a resolution
     of the issues presented, the court summarily affirmed the
     decision of the trial court.


     Appeal from Garland Circuit-Chancery Court; Tom Smitherman,
Judge; affirmed.
     Donald R. Roberts, for appellant.
     Sam L. Anderson, Sr., for appellee.

     Tom Glaze, Justice. *ADVREP*SC3*






ILENE KINGSBURY,
                    APPELLANT,

V.

R. MAXINE ROBERTSON,
                    APPELLEE.



95-435

Opinion Delivered:  6-3-96

APPEAL FROM THE CIRCUIT-
CHANCERY COURT OF GARLAND
COUNTY, ARKANSAS, NO. CIV-92-
757CC; HONORABLE TOM
SMITHERMAN, JUDGE

AFFIRMED





                  TOM GLAZE, Associate Justice

     Appellant Ilene Kingsbury is the niece and heir of Claude
Rogers, who died on October 16, 1989.  Rogers, a widower with no
children, had engaged appellee Maxine Robertson to be his
caretaker-nurse and gave her power of attorney on February 15,
1989.  There was evidence that Robertson was representing herself
to be Rogers's wife at the time of his death, although the two had
never married.  On November 12, 1993, Kingsbury sued Robertson,
alleging breach of fiduciary duty and intentional infliction of
emotional distress.  Specifically, the complaint stated that
Robertson:  (1) concealed assets of Rogers's estate; (2) attempted
to probate the estate using a fraudulent will; (3) misrepresented
herself to be Rogers's wife, "causing acts to be done which would
not have been but for the misrepresentation"; (4) concealed
Rogers's death from the next of kin; (5) ordered the cremation of
his body without Kingsbury's knowledge; and (6) attempted to
convert the assets of Rogers's estate after his death using a power
of attorney.
     Robertson moved to dismiss on the basis that the suit was
barred by the three-year statute of limitations that applies to
tort actions.  Ark. Code Ann.  16-56-105 (1987).  She asserted
that any cause of action would have accrued on October 16, 1989,
the date of Rogers's death.  Kingsbury argued in response that
these acts had been ongoing until March of 1990, and she attached
various documents reflecting these acts and their dates of
occurrence.
     The trial court treated the motion to dismiss as a motion for
summary judgment.  It found that all of the alleged breaches of
fiduciary duty took place more than three years prior to the filing
of Kingsbury's suit and Kingsbury was aware of these acts. 
Further, the trial court concluded that the allegations regarding
concealment of Rogers's death and cremation were the only claims
that would give rise to a suit for outrage, and as Rogers had died
more than three years prior to the filing of this action, the
statute of limitations barred such claims.
     Kingsbury contends that the trial court erred in finding her
claims for breach of fiduciary duty and the tort of outrage were
barred by the statute of limitations.  However, we are unable to
reach the merits of Kingsbury's appeal because her abstract is
flagrantly deficient.  Ark. Sup. Ct. R. 4-2(b)(2).
     Kingsbury's argument to this court concerns the applicability
of the statute of limitations to the specific allegations in her
complaint, but the abstract of her complaint fails to reflect those
specific allegations.  Instead, the complaint, as abstracted,
simply states that Kingsbury sought compensatory damages for breach
of fiduciary duty and compensatory and punitive damages for
outrage.  We have repeatedly held that a proper summary of the
pleadings upon which the case was brought is essential for the
court to consider the case.  Bohannon v. Arkansas State Bd. of
Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); Logan County v.
Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990).
     Kingsbury also significantly failed to abstract exhibits that
are essential to the determination of this appeal.  Her argument to
the trial court was that breaches of fiduciary duty had been
ongoing since the date of Rogers's death and not before.  In her
response to Robertson's motion to dismiss, Kingsbury attached the
following documents and orders in support of her contention that
the statute of limitations had been tolled and was therefore
inapplicable:  (1) an authorization to cremate dated October 16,
1989; (2) a funeral home information sheet dated October 17, 1989,
upon which Robertson stated she was Rogers's wife; (3)  Rogers's
obituary dated October 17, 1989, reflecting that Robertson was his
wife; (4) an order from the probate court dated December 22, 1989,
requiring Robertson to turn over assets of his estate; (5) a letter
from Robertson's lawyer dated February 28, 1990, stating that the
assets had been turned over; (6) a joint will of Robertson and
Rogers, along with a February 26, 1990 opinion of a handwriting
expert stating that Robertson had signed Rogers's name to it; (7)
an April 30, 1990 order of the probate court dismissing Kingsbury's
petition to probate the will; (8) an order dated May 8, 1991,
requiring Robertson to release assets of decedent; and (8) Rogers's
medical records with a notation dated March 10, 1990, wherein
Robertson, representing herself as Rogers's wife, had requested
that no medical information be given to Kingsbury.
     Under Ark. Sup. Ct. R. 4-2(a)(6), exhibits necessary for a
clear understanding of a case must be included in an abstract. 
Id.; see also Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).  When such exhibits are not included in the abstract,
we will summarily affirm.  Pennington v. City of Sherwood, 304 Ark.
362, 802 S.W.2d 456 (1991).  We have repeatedly stated that it is
impractical to require all seven members of this court to examine
one transcript in order to decide an issue.  Zini v. Perciful, 289
Ark. 343, 711 S.W.2d 477 (1986).  The burden on an appellant to
reproduce exhibits is slight, but the ability of seven justices to
understand the issues presented is essential.  See George Rose
Smith, Arkansas Appellate Reports:  Abstracting the Record, 31 Ark.
L. Rev. 359, 365 (1977).  Here, Kingsbury's complaint and exhibits
to her responsive pleading presented the core of her argument that
the limitations statute did not bar her claims.  Without those
items being abstracted for the court's consideration, her argument
must fail.  Therefore, because Kingsbury's abstract is inadequate
for a resolution of the issues presented, we summarily affirm the
decision of the trial court.
     DUDLEY, J., not participating.