Chlanda v. Killebrew

Shirley CHLANDA v. Lewie KILLEBREW

96-862                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996


1.   Judgment -- summary judgment sought -- how evidence in support
     of such a motion must be viewed. -- Appellant's affidavits
     conflicted with appellee's proof, and when such conflicts
     exist and summary judgment is sought, all evidence presented
     in support of the motion must be viewed in the light most
     favorable to the nonmoving party; here, appellant's affidavits
     could be fairly read to dispute appellee's factual claim that
     he had never seen or possessed any of the decedent's jewelry
     now sought by appellant.

2.   Conversion -- conversion claim not resolved -- descriptions of
     jewelry not subject to comparison. -- Although appellee
     maintained that the jewelry found in the house was the same
     jewelry as that sought by appellant and therefore resolved any
     conversion claim, the supreme court disagreed; it was
     impossible to  compare the jewelry items described in
     appellant's complaint to those items listed and described as
     having been found in the house, and appellant's list of
     jewelry included an expensive diamond pyramid ring that was
     not mentioned in the list of jewelry items found by the
     auctioneer.
3.   Judgment -- summary judgment inappropriate -- case reversed
     and remanded. -- Where the supreme court's review revealed
     that disputed factual issues remain unanswered, it held that
     the trial court erred in granting appellee's motion for
     summary judgment; the case was reversed and remanded. 


     Appeal from Boone Circuit Court; John Lineberger, Judge;
reversed and remanded.
     Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Peter B.
Heister and Ledbetter & Associates. Ltd., by:  Thomas D. Ledbetter,
for appellant.
     Davis & Goldie, by:  James D. Goldie, for appellee.

     Tom Glaze, Justice. 
     Appellant Shirley Chlanda visited her sister, Evelyn Fuller,
in the hospital, and during that visit, Shirley claims her sister
gave her some jewelry with an estimated value of $50,400.00. Per
Evelyn's instructions, Shirley located the jewelry in Evelyn's and
her husband's, Milford Fuller's, home, and took possession of it. 
Shirley kept the jewelry in her luggage while she stayed at the
Fuller home during Evelyn's sickness.  During Shirley's stay,
Evelyn died.  Afterwards, Shirley gave Milford temporary possession
of the jewelry, but Milford also died less than two months later
before Shirley was able to obtain the return of the jewelry.
     Appellee Lewie Killebrew was named co-administrator of
Milford's estate, and Shirley demanded the return of the jewelry. 
Killebrew denied he had possession of it, and Shirley subsequently
filed this conversion litigation, alleging Evelyn had given her
jewelry to Shirley, and Killebrew was wrongly retaining it. 
Killebrew answered, maintaining he had never possessed the jewelry. 
In fact, he asserted the so-called missing jewelry had been found
hidden in Milford's bedroom, and because he had no access to
Milford's bedroom, the discovery of the jewelry in the Fuller home
proved he had never possessed it.  Killebrew moved for summary
judgment, alleging no genuine, material fact was in issue.  The
trial court granted the motion, but we hold the trial court erred.
     Killebrew's summary judgment motion was supported by three
affidavits, his, Ron Kersch's and Ron Campbell's.  In his
affidavit, Killebrew averred that he at no time possessed the
jewelry sought by Shirley, nor did he have the key to obtain the
jewelry from the Fuller house after Milford died.  Killebrew said
that, immediately after Milford died, he gave his only key to the
house to Ron Campbell, the trust officer of Milford's estate. 
Killebrew further asserted he was never again alone in Milford's
house.  However, he said he was in the Fuller house when Ron
Kersch, an auctioneer, was inventorying it and found a box of
jewelry located in Milford's bedroom.  Upon opening the box,
Killebrew said the box "appeared" to contain the jewelry described
by Shirley in her lawsuit.  Killebrew stated that he had this newly
discovered jewelry appraised, but the jewelry items werenot sold.
Instead, the jewelry is presently being held by Campbell.  Kersch's
and Campbell's affidavits generally support Killebrew's averments. 
Kersch related that both Killebrew and Campbell were present when
Kersch found the box of jewelry, and they recognized it as being
the "same type" claimed by Shirley.  In his affidavit, Campbell
recognized the jewelry "as being similar" to the "same (sic)
jewelry" described in Shirley's lawsuit.  A list of the discovered
jewelry items was also attached to Killebrew's motion.  Killebrew
argues the foregoing is proof that he never possessed the jewelry
Shirley claims and that the jewelry found by Kersch when
inventorying Milford's house is that claimed by Shirley.
     Contrary to Killebrew's claims, we find the record reveals
proof submitted by Shirley that, at least, raises an issue of
material fact concerning (1) whether Killebrew ever took possession
of Shirley's jewelry, and (2) whether the jewelry found by Kersch
is the same jewelry that Shirley is claiming.  We first consider
Killebrew's claim that he had never seen any of Evelyn's jewelry
claimed by Shirley or possessed any of it.  Besides her complaint
and own affidavit describing the jewelry given to her by Evelyn,
Shirley submitted with her response to Killebrew's summary judgment
motion the affidavits of Jeffrey Harper and Delbert Chappelle,
former employees of Milford's.  Harper attested that, after Milford
died, he heard Killebrew tell Chappelle that he, Killebrew, had the
jewelry and "Evelyn's bitch sister isn't going to get any of it."
Harper further averred Milford had previously instructed Harper and
other employees that they "were to do everything they could to make
sure" Shirley got the jewelry.  Harper asserted Killebrew disclosed
to Harper that he had all of Evelyn's things he wanted, and
Killebrew had gone through the safety deposit boxes and the office
safe.  Chappelle's affidavit, too, related that Killebrew said that
he had Evelyn's "good jewelry" and "Evelyn's bitch sister isn't
going to get any of it."
     Shirley' s affidavits by Harper and Chappelle suggest
Killebrew had previously possessed Evelyn's jewelry and intended to
keep Shirley from getting it.  Clearly, Shirley's affidavits
conflict with Killebrew's proof, and when such conflicts exist and
summary judgment is sought, all evidence presented in support of
the motion must be viewed in the light most favorable to the non-
moving party. Car Transp. v. Garden Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991).  Here, Shirley's affidavits can be fairly read
to dispute Killebrew's factual claim that he had never seen or
possessed any of Evelyn's jewelry now sought by Shirley.
     Finally, while Killebrew maintains the jewelry found in the
Fuller house is the same jewelry as that sought by Shirley and
therefore resolves any conversion claim she now asserts, we must
disagree for two reasons.  First, we have made an attempt to
compare the jewelry items described in Shirley's complaint to those
items listed and described as having been found in the Fuller
house, and we conclude it is impossible to determine whether these
items could be the same.  In fact, the descriptions of the items
listed by each party vary so much in detail that they defy
comparison.  We would point out, too, that Shirley's list of
jewelry included an expensive diamond pyramid ring, and while
Killebrew remembered Evelyn having such a ring, that ring is not
mentioned in the list of jewelry items found by Kersch.
     Because our review reveals that disputed factual issues remain
unanswered, we hold the trial court erred in granting Killebrew's
motion for summary judgment.  Therefore, we reverse and remand for
further proceedings.