Robert Samuel Moore v. M. Elaine Moore and Henry Moore

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ca03-152

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ROBERT SAMUEL MOORE

APPELLANT

V.

M. ELAINE MOORE AND HENRY MOORE

APPELLEES

CA 03-152

April 21, 2004

APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY

[NO. E 2000-588]

HONORABLE RICHARD GARDNER, JR., JUDGE

AFFIRMED

Terry Crabtree, Judge

This is an appeal from an order dismissing appellant's complaint in which he alleged that the appellees, his parents, had converted his funds to their own use. Appellant argues on appeal that the trial court erred in not finding that there was a fiduciary relationship between the parties and by not finding that appellees had breached that relationship. We affirm.

Appellees, Elaine and Henry Moore, adopted appellant, Robert Moore, and his half-sister when appellant was nine years old. The parties lived in California and Arizona, but they settled in Arkansas after appellant completed service in the military. Appellant was employed as a long-haul truck driver. In 1997, appellant and Mrs. Moore entered into an agreement for Mrs. Moore to deposit appellant's paychecks, pay his bills, and provide bookkeeping services for $25 a week. Both a savings and checking account were opened in appellant and Mrs. Moore's names, and a power of attorney was executed giving Mrs. Moore the authority to "take care of all personal business and financial matters and buying, selling,

real estate and personal property." In May of 1999, appellees and appellant purchased a home as tenants in common, which they leased to the previous owner.

The financial arrangement continued without incident until the fall of 1999. At that time, the joint savings and checking accounts were closed. Subsequently, in March 2000, a quitclaim deed was executed whereby appellant conveyed his interest in the home they had purchased to appellees. The deed was executed by Mrs. Moore on behalf of appellant as his attorney in fact under the power of attorney. In April 2000, the insurance policy covering the house was changed by naming appellees as the insureds. The house was destroyed by fire on May 28, 2000.

Appellant filed this lawsuit in July 2000. In his complaint, appellant alleged that the appellees stood in a fiduciary relationship to him, and he contended that they, in particular Mrs. Moore, had breached the fiduciary relationship by misappropriating his funds. Initially, appellant named as defendants the banking institution where the accounts were held and the insurance company that provided coverage for the house. The bank was subsequently dismissed from the lawsuit, as was the insurance company after the proceeds of the policy were placed into the registry of the court.

At trial, appellant testified that he became a truck driver in 1993 or 1994 and that he had been married and divorced a time or two. He acknowledged that he had problems with drugs. Appellant testified that Mrs. Moore began handling his affairs when he started working for Transco Lines, Inc. He said that he had never been good about paying bills and that "if I have someone else to help me with it, I will usually let them do it." Appellant maintained that he only enlisted Mrs. Moore's help for her to deposit his paychecks, since he was on the road, and to pay his traffic tickets and bills. He said, however, that she did all of the shopping and took care of all the clothes and present buying. In doing this, he said that she would write checks from the joint account or her own account. He said that she would tell him if she wrote a check from her own account and that she would reimburse herself later. Appellant recalled their going to the bank to open the joint checking account, but he said that he was unaware that a joint savings account had been opened. He said that Mrs. Moore would not tell him how much money he had, saying that he did not need to know because he would "blow it." He also said that the power of attorney was signed at appellees' home, that it was blank when he signed it, and that there was no notary present. Appellant testified that Mrs. Moore did not have his permission to sign the deed taking his name off the house. He admitted, however, that he had said in his deposition that he had told appellees that he did not want anything else to do with the house and that he instructed them to take his name off the deed. He said that he had made at least one house payment and had paid the insurance on the house, but he could provide no documentation supporting those assertions. He stated that he did not know what the mortgage payments on the house were and that he did not know how much the rental payments were. He said that he had no personal knowledge of whether he owed Mrs. Moore money or whether she owed him.

In his testimony, appellant also related a conversation he had with Mrs. Moore, saying that she had told him that she was going to set fire to the house they had bought. Appellant said that she concocted this scheme after he had been fired from his job because of his drug usage and could not afford to pay for the house. He said that they argued and that he told her that he wanted no part of the plan. Appellant told the insurance adjuster that appellees had burned the house down.

Monica Bell, an employee at the law firm of appellant's attorney, testified that she had examined the records of the joint bank accounts and had concluded that Mrs. Moore had taken a total of $19,533.88 out of appellant's savings and checking accounts. She further concluded that Mrs. Moore bounced money from one account to the other and then took cash out of the accounts or deposited funds into her own account. In her calculations, she included as money owed to appellant any sums Mrs. Moore deposited into his savings account from his checking account. She acknowledged that she did not have any way of knowing the amount of money Mrs. Moore spent on appellant's behalf out of her own checking account or charge cards.

Mrs. Moore testified that she had a business degree and had worked as a bookkeeper, a hair stylist, and a realtor. She did not dispute that money had been placed in her and her husband's account from appellant's accounts, but she testified that this money was used to pay appellant's bills and to reimburse her for money that she had spent on his behalf and for charges he had made on her credit card, all for which she had maintained receipts or cancelled checks which were introduced into evidence. She added that the compilation prepared by Ms. Bell did not give her credit for the ATM withdrawals made by appellant while he was on the road. According to her testimony and the exhibit summarizing her expenditures on a month-by-month basis, appellant owed her $8,401.07. She said that she had not filed a counterclaim seeking payment of this amount because she would not sue her child. Mrs. Moore testified that, when appellant came off the road, he would tell her how much money he needed and that she would give it to him if he had it. She said that she would go over his bank statements with him when he asked and that he had never voiced any objections. She admitted that she had once borrowed $1,600 from appellant, but she said that she had done so with his permission and had paid him back the next month. She said that she could have applied that debt to the money appellant had owed her at that time, but that she had not done so.

Mrs. Moore testified that she and appellant had gone to the bank together to open the joint savings account and that appellant signed the signature card. She recalled that on the day it was opened they had gone to Wal-Mart, and she produced the receipts for their transactions. She testified that the power of attorney was signed by appellant at the title company where it was notarized, and she said that it was filled out and not blank when appellant signed it. Mrs. Moore further testified that it was appellant's idea to remove his name from the deed to the house. She said that he told her more than once, "Take my name off the deed. Take it off the note. I want nothing to do with you. I want nothing to do with the house." She said that appellant never made any of the house payments out of his own money and that he had only made the payments on the two occasions when he had collected the rent-money. She said that the rent-money was used to pay the mortgage and that she and her husband had made the payments during the eight months that the house was vacant. She said that when the house burned she and her husband alone owned the house and had the property insured and that they had personal property in the house but that appellant did not. The insurance company had paid the mortgage and had issued a check for $22,787.72 for coverage on the building, personal property, and loss of rent. She said that it was appellant's girlfriend who spoke of setting fire to the house.

Mrs. Moore was questioned about a car appellant had that was titled in her and her husband's name. She said that the car was driven by appellant and his wife and that they had issued a promissory note. She said that she took the car back when appellant and his wife divorced because they no longer wanted it and that it was their agreement that she would take it back if appellant paid to repair the air conditioner and alignment.

Mrs. Moore also testified that appellant had always been able to live in her home rent-free and that he had use of her vehicles. She said that she had wired him money in the middle of the night when needed. She had paid to have his wisdom teeth removed, and she sent him five or six hundred dollars for a plane ticket home after he had bee involved in an accident in Utah. She did not include these expenditures in calculating the amount appellant owed her.

Jeff Fouts, appellees' next door neighbor, testified that it was storming the day the house burned and there were several lightning strikes that night. He said that appellant had told him that he was not good with money and that he let Mrs. Moore run his affairs because he did not want to do so. He said that Mrs. Moore's reputation in the community for truthfulness was "top notch."

Brenda Penepent, appellant's ex-wife, testified that she was married to appellant for a year and a half ending in 1997. She said that her financial condition was good when she married appellant but that circumstances changed during the marriage. She held down several jobs to put him through school and said that he never really held down a job. She said that they were able to get a loan from appellees to make a down payment on a truck so that appellant could become a truck driver. She said that he was not making any money because of the expense of the truck payment and after the costs of licensing and permits were deducted from his paycheck. She said that appellant was also unable to pay bills because he took advances on his paycheck and that he would take more money out of their account with his ATM card than he told her. In the end, she filed for bankruptcy. She said that appellees helped them financially and that they were buying a car from them but that they had returned the vehicle.

By letter opinion, the trial court ruled that appellant had failed to prove that Mrs. Moore had misappropriated any of his money. The court found that the evidence indicated that appellant over the years had allowed Mrs. Moore to control his funds and to pay his bills and make expenditures on his behalf without any accounting or other restrictions. The court specifically found that Mrs. Moore's testimony was credible but that appellant's was not.

Appellant argues on appeal that the trial court's ruling was clearly erroneous by finding that Mrs. Moore could spend appellant's money without accounting or other restrictions, thus holding that there was no fiduciary relationship or breach of that relationship. We find no merit in this argument. First, we do not agree with appellant's assertion that the trial court made a finding that no fiduciary relationship existed by stating that appellant allowed Mrs. Moore to control his funds without restriction. The court was merely making a finding, as a matter of fact, as to the parties' course of dealing. Secondly, and more to the point, the dispositive finding made by the trial court was that there was no credible evidence that Mrs. Moore was guilty of any impropriety. The court believed her testimony that she used appellant's money to pay his expenses or to reimburse her for legitimate expenses she incurred on his behalf. Our inquiry on appeal is whether the trial court's findings are clearly against the preponderance of the evidence. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). Because the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the trial court. Mobley Law Firm, P.A. v. Lisle Law Firm, P.A., 353 Ark. 828, 120 S.W.3d 537 (2003). We cannot say that the trial court's decision was clearly against the preponderance of the evidence.

Affirmed.

Robbins and Neal, JJ., agree.