Betts v. Betts

Jackie BETTS v. W.T. BETTS, Edward Betts,
Billy C. Betts, Imogene Kellogg, and Louise
Simmons

96-529                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Appeal & error -- argument raised for first time on appeal --
     argument not reached. --  The supreme court did not reach an
     argument where the abstract did not reflect that the argument,
     or any similar argument, was made in the trial court; a
     nonjurisdictional argument cannot be raised for the first time
     on appeal. 

2.   Trusts -- constructive and implied trusts discussed -- when
     constructive trust arises. -- A constructive trust is a
     remedial rather than a substantive institution; in the case of
     constructive trusts, an obligation is imposed in order to
     prevent unjust enrichment; such trusts arise whenever it
     appears from the accompanying facts and circumstances that the
     beneficial interest should not go with the legal title; the
     term "implied trust" encompasses both constructive trusts and
     various types of resulting trusts; a constructive trust arises
     in favor of persons entitled to a beneficial interest against
     one who secured legal title either by an intentional false
     oral promise to hold the title for a specified purpose or by
     violation of a confidential or fiduciary duty, or who is
     guilty of any other unconscionable conduct that amounts to a
     constructive fraud.

3.   Trusts -- constructive trust -- when imposed. -- A
     constructive trust is imposed where a person holding title to
     property is subject to an equitable duty to convey it to
     another on the ground that he would be unjustly enriched if he
     were permitted to retain it; the duty to convey the property
     may arise because it was acquired through fraud, duress, undue
     influence or mistake, breach of a fiduciary duty, or wrongful
     disposition of another's property; the basis of the
     constructive trust is the unjust enrichment that would result
     if the person having the property were permitted to retain it;
     ordinarily, a constructive trust arises without regard to the
     intention of the person who transferred the property.  

4.   Trusts -- constructive trusts -- burden of proof and standard
     of review. -- To impose a constructive trust, there must be
     full, clear, and convincing evidence leaving no doubt with
     respect to the necessary facts, and the burden is especially
     great when a title to real estate is sought to be overturned
     by parol evidence; the test on review is not whether the court
     is convinced that there is clear and convincing evidence to
     support the chancellor's finding but whether it can say the
     chancellor's finding that the disputed fact was proved by
     clear and convincing evidence is clearly erroneous; the
     supreme court defers to the superior position of the
     chancellor to evaluate the evidence; a finding is clearly
     erroneous when, although there is evidence to support it, the
     reviewing court on the entire evidence is left with the
     definite and firm conviction that a mistake has been
     committed. 

5.   Appeal & error -- trial court reversed only if clearly
     erroneous -- when finding is clearly erroneous. -- The fact
     that there was testimony contrary to the trial court's
     finding, without more, was not sufficient for reversal of the
     finding; the test is whether the trial court's finding was
     clearly erroneous; a finding is clearly erroneous when,
     although there is evidence to support it, the reviewing court
     on the entire evidence is left with the definite and firm
     conviction that a mistake has been committed.

6.   Trusts -- conflicting evidence was presented -- trial court's
     finding affirmed. -- Where the chancellor's finding that the
     decedent intended 160 acres to be shared by the six children
     who were loyal to him and that appellant breached a duty or
     broke a promise to do so was supported by testimony and
     evidence, yet there was other evidence to the contrary, there
     was a conflict in the evidence; the chancellor saw and heard
     the witnesses, saw how they responded to both direct and
     cross-examination, and was in the superior position to
     evaluate their credibility; the supreme court was not left
     with the definite and firm conviction that a mistake had been
     committed; the chancellor's decision was affirmed.


     Appeal from Montgomery Chancery Court; Gayle Ford, Chancellor;
affirmed.
     J. E. Sanders, for appellant.
     D. Scott Hickam, for appellees.

     Robert H. Dudley, Justice.   
     R.C. Betts and Elsie Betts, who were in their eighties, had
twelve children and owned 160 acres in Montgomery County.  Six of
their children thought their father was uncaring about their mother
and, at times, was even menacing toward her.  These six children
thought that their father's mental stability had deteriorated with
advanced age, and, in August 1989, one of the six, Cecil Betts,
filed a petition seeking the involuntary commitment of R.C.  Jackie
Betts, one of the six who took the father's side, drove R.C. to the
law offices of Bill Mitchell, and, there, R.C. employed Mitchell to
contest the commitment petition.  Mitchell successfully represented
R.C., and the petition was dismissed.  On the same day the petition
was dismissed, August 8, 1989, Elsie Betts died.  This left R.C. as
the sole owner of the 160 acres.  On August 10, 1989, the following
letter to the editor appeared in the Glenwood Herald News:
     Editor:  We would like for all the people who think
     Robert Betts is such a fine person, to call him up and
     congratulate him.  He has refused his wife of 63 years,
     Elsie Betts, the right to die in peace by withdrawing all
     the money out of the bank and refusing to pay her doctor
     and hospital bills.  Signed, Her children.
     Shortly after the letter appeared in the local paper, on
September 11, 1989, R.C. returned to Bill Mitchell's law office and
had a warranty deed prepared that conveyed the 160 acres to himself
and one of his sons, Jackie Betts, as joint tenants with the right
of survivorship.  R.C. Betts died on May 10, 1990.  Mitchell, the
lawyer who drafted the deed, died on the same day.  
     Five of Jackie Betts's brothers and sisters filed this action
against Jackie:  the five plaintiffs and one defendant, Jackie, are
the six who took the father's side in the family dispute.  The
plaintiffs alleged that the purpose of the deed to Jackie was to
avoid probate and that Jackie was supposed to convey title to
himself and the five brothers and sisters after R.C.'s death.  The
five brothers and sisters alleged that Jackie refused to convey
title and asked that a constructive trust be imposed on the 160
acres.  The chancellor imposed a constructive trust.  Jackie
appeals the ruling.  We affirm. 
     In one of Jackie's points for reversal, he argues, "The
establishment of a constructive trust as to one of two joint
tenants eliminates the unities of title, interest, and possession
in that the establishment of the trust or the constructive trust
from the date of delivery of the deed prohibits the constructive
trustee from enjoying the use and benefit of the estate so granted
and thereby abolishes by its very nature the benefits of the estate
to be acquired."  We do not reach the argument.  The abstract does
not reflect that the argument, or any similar argument, was made in
the trial court.  A nonjurisdictional argument cannot be raised for
the first time on appeal.  Prudential Ins. Co. v. Frazier, 323 Ark.
311, 914 S.W.2d 296 (1996); Arkansas Dep't of Human Servs. v.
Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993).
     In his other point for reversal, Jackie argues that the trial
court erred in imposing a constructive trust on the property
because the five brothers and sisters did not meet the appropriate
burden of proof.  A constructive trust is a remedial rather than a
substantive institution.  Brasel v. Brasel, 313 Ark. 337, 339, 854 S.W.2d 346, 347 (1993).  In the case of constructive trusts, an
obligation is imposed in order to prevent unjust enrichment.  Id. 
"Such trusts arise whenever it appears from the accompanying facts
and circumstances that the beneficial interest should not go with
the legal title."  Andres v. Andres, 1 Ark. App. 75, 81, 613 S.W.2d 404, 407-08 (1981).  In Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992), we wrote:
     The term "implied trust" encompasses both constructive
     trusts and various types of resulting trusts.  See 76 Am.
     Jur. 2d Trusts  159-163 (1992); W. Fratcher, V Scott on
     Trusts   404 through 404.2 (1989) (describing the three
     types of resulting trusts) and  462 (describing
     constructive trusts).  Hickman v. The Trust of Heath,
     House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992);
     Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). 
     A constructive trust arises in favor of persons entitled
     to a beneficial interest against one who secured legal
     title either by an intentional false oral promise to hold
     the title for a specified purpose, or by violation of a
     confidential or fiduciary duty, or is guilty of any other
     unconscionable conduct which amounts to a constructive
     fraud.  Andres v. Andres, supra.
Id. at 343, 843 S.W.2d  at 848.  
     We further stated:
     A constructive trust is imposed where a person holding
     title to property is subject to an equitable duty to
     convey it to another on the ground that he would be
     unjustly enriched if he were permitted to retain it.  The
     duty to convey the property may arise because it was
     acquired through fraud, duress, undue influence or
     mistake, breach of a fiduciary duty, or wrongful
     disposition of another's property.  The basis of the
     constructive trust is the unjust enrichment that would
     result if the person having the property were permitted
     to retain it.  Ordinarily a constructive trust arises
     without regard to the intention of the person who
     transferred the property.  
Id. at 343-44, 843 S.W.2d  at 849 (quoting William F. Fratcher, V
Scott on Trusts  404.2 (1989)).   
     In Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996), we
set out the burden of proof in the trial court and the standard of
review on appeal as follows:
          To impose a constructive trust, there must be full,
     clear, and convincing evidence leaving no doubt with
     respect to the necessary facts, Tillar v. Henry, 75 Ark.
     446, 88 S.W. 573 (1905), and the burden is especially
     great when a title to real estate is sought to be
     overturned by parol evidence.  Nelson v. Wood, 199 Ark.
     1019, 137 S.W.2d 929 (1940).  The test on review is not
     whether the court is convinced that there is clear and
     convincing evidence to support the chancellor's finding
     but whether it can say the chancellor's finding that the
     disputed fact was proved by clear and convincing evidence
     is clearly erroneous, and we defer to the superior
     position of the chancellor to evaluate the evidence. 
     Brasel v. Brasel, 313 Ark. 337, 854 S.W.2d 346 (1993);
     Wright v. Wright, 279 Ark. 35, 648 S.W.2d 473 (1983). 
     See also Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280
     (1995).  A finding is clearly erroneous when, although
     there is evidence to support it, the reviewing court on
     the entire evidence is left with the definite and firm
     conviction that a mistake has been committed.  RAD-
     Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark.
     550, 713 S.W.2d 462 (1986).
Id. at 333, 925 S.W.2d  at 789.  
     In support of his argument on this point, Jackie cites
testimony that was contrary to the finding of the trial court. 
However, the fact that there was testimony contrary to the trial
court's finding, without more, is not sufficient for us to reverse
the finding.  The test is whether the trial court's finding was
clearly erroneous, and a finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.  Nichols, 325 Ark. at 333, 925 S.W.2d  at 789.
     Here, the chancellor's finding that R.C. Betts intended the
160 acres to be shared by the six children who were loyal to him
and that Jackie breached a duty or broke a promise to do so is
supported by the testimony that six of the children were in good
standing with R.C. and six were not and by the file of Bill
Mitchell, the attorney who prepared the deed, but died on the same
day as did R.C.  The file contained an intake sheet dated August 8,
1989, that stated that it involved a guardianship.  Under the
heading of "remarks" were the names of all twelve children.  The
top six names on the list were the six children that were not in
good standing with their father.  On the right side of those names,
the word "no" was written.  The seventh name, Walter T. Betts, was
underlined.  The other five, who were also in good favor, were
listed under Walter's name.  A separate sheet stated at the top,
"160 acres--Montgomery," and listed the twelve children.  The six
children who were in good standing with their father had checks by
their names.  The names with the checks were Jackie's and the five
appellees.  Bruce Garnett, an attorney who shared offices with
Mitchell, testified that he thought the line under Walter T.
Betts's name on the intake sheet indicated those who were to
benefit and those who were not to benefit.  Garnett testified that
he had no specific knowledge concerning the checks by the
individuals' names on the other sheet.  According to Garnett,
Mitchell would have understood the potential for acrimony and
litigation if he were to draw up a deed for a joint tenancy in
which the survivor was supposed to hold the property in trust and
this condition was not recited in the deed.  Garnett testified that
there was no routine way to handle trusts and that it was not
uncommon for rural clients to be apprehensive about complex
documents.  He testified that it would not be uncommon for Mitchell
to caution a client about the potential for acrimony, but to then
go ahead and draft the deed as the client wanted.  The warranty
deed to R.C. and Jackie in joint tenancy with right of survivorship
was in the file, as was a copy of the bitter letter to the editor. 
     Further testimony supporting the chancellor's findings was
appellee Imogene Kellogg's testimony that she was present when
Jackie promised again and again that he would divide the property
six ways if R.C. would put his name on the deed; appellee Edward
Betts's testimony that his father told him that he wanted the six
children who were in his good graces to have the land; and appellee
Louise Simmons's testimony that R.C. told her that he was putting
Jackie's name on the deed because he knew that he would do what is
right and divide the land among the six children in good standing. 
     On the other side, evidence that specifically went against the
chancellor's finding, included appellant Jackie Betts's testimony
that his father did not want the land divided and that his father
left the land to him without imposing any conditions; appellant's
testimony that his father was bothered by appellee Louise Simmons's
statements that she was not interested in owning property in
Arkansas and that she would sell it if any were left to her;
appellant's testimony that R.C. did not trust Edward Betts;
appellant's testimony that R.C. thought appellee Imogene Kellogg
was wonderful when she took care of him, but he later thought she
was talking about him and disclosing their conversations behind his
back; testimony by appellant about the close relationship he and
his father had; and the absence of a clear notation in the
attorney's file about a trust.  
     There was other evidence that R.C. intended for the land to be
divided three ways.  This testimony included the testimony that
appellee Imogene Kellogg, appellee Edward Betts, and appellant were
the main caretakers of their father; testimony by appellee Imogene
Kellogg that appellant told her that their father had changed his
mind and that the land was to be divided between appellant,
appellee Imogene Kellogg, and appellee Edward Betts; and testimony
by appellee Edward Betts that he reminded his father that he had
said that he and Imogene Kellogg were to get a share for having
helped take care of him and that his father said he did not cut
them out and would take care of it after he got out of the
hospital. 
     In sum, there was a conflict in the evidence.  The basic
conflict came down to whether appellant Jackie Betts or appellees
Imogene Kellogg, Edward Betts, and Louise Simmons were to be
believed and the significance to be given the attorney's file.  The
chancellor saw and heard the witnesses.  He saw how they responded
to both direct and cross-examination and was in the superior
position to evaluate their credibility.  We cannot say that we are
"left with the definite and firm conviction that a mistake has been
committed."   See RAD-Razorback Ltd. Partnership v. B.G. Coney Co.,
289 Ark. 550, 713 S.W.2d 462 (1986).  Accordingly, we affirm.
     Affirmed.