Richard Scroggin et al. v. Beatrice Scroggin et al.
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CA 07-1011
RICHARD DOYLE SCROGGIN,
CARROLL D. SCROGGIN & BETTY
SCROGGIN, husband and wife, BENNY
SCROGGIN & GAYLON SCROGGIN,
husband and wife
APPELLANTS
Opinion Delivered
September 10, 2008
APPEAL FROM THE CONWAY COUNTY
CIRCUIT COURT,
[NO. CV 2006-58]
HONORABLE DAVID H. McCORMICK,
JUDGE
v.
BEATRICE SCROGGIN, WILHELMINA
SCROGGIN, MICHAEL SCROGGIN,
ANN POLSTON, ROBERT LYNN
SCROGGIN, LEE ALICE SCROGGIN
CHICOINE
APPELLEES
AFFIRMED
EUGENE HUNT, Judge
1.
LIMITATION
OF ACTIONS
–
CLAIM FOR TRUST PROPERTY
–
COMMENCEMENT OF
STATUTE OF LIMITATIONS.– Appellees’ claims seeking to establish that they were the
decedent’s heirs and thus entitled to a portion of the trust property were not barred
by the statute of limitations; the statute of limitations does not commence to run until
an issue of pecuniary consequence arises; here, there was no evidence that any of the
appellees made a demand for a distribution of the trust property that would have
triggered the statute of limitations, and appellees filed suit well within either of the
applicable statute of limitations when measured from the event of pecuniary
consequence.
2.
JUDGMENT – SUMMARY JUDGMENT – APPLICABILITY OF FORTY -FIVE DAY PERIOD – NO
ALLEGATION OF PREJUDICE.– The
circuit court did not err in considering appellees’
motion for summary judgment; appellants’ obtaining leave and filing their own
motion for summary judgment was sufficient reason for appellees to file their counter
motion within the same forty-five day period; and, appellants did not allege that they
had suffered any prejudice, either in their motion to strike the motion for summary
judgment or in their brief to the appellate court, only that appellees did not comply
with the timing requirements of Arkansas Rule of Civil Procedure 56(a).
3.
WILLS &
TRUSTS
–
TRUST AGREEMENTS
SUCCESSOR TRUSTEE.– In
–
ABSENCE OF AUTHORITY TO APPOINT
the absence of authority conferred by the trust agreement,
a trustee has no power to appoint his successor; here, being without the power to
name a successor trustee, the initial trustee’s designation of a successor trustee was
without authority; likewise, the successor’s leasing of the mineral interests was void.
4.
DESCENT & DISTRIBUTION – INTESTATE SUCCESSION – SURVIVING SPOUSE ENTITLED
TO INTEREST IN TRUST PROPERTY .–
The circuit court properly awarded a one-sixth
interest in the trust property to the surviving spouse of one of the decedent’s sons;
contrary to appellants’ argument that the surviving spouse waived any interest she
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might have had in the property by executing a deed conveying the property in trust,
the son’s death without any children meant that his estate passed by intestate
succession to his surviving spouse because they were married for more than three
years; thus, the fact that the surviving spouse waived her right to dower was
irrelevant because she was not awarded dower in the one-sixth interest; rather, she
received her husband’s interest as an heir of his father.
Appeal from Conway Circuit Court; David H. McCormick, Judge; affirmed.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Scott T. Vaughn and Traci
Lacerra, for appellants.
Dale Lipsmeyer, for appellees.
This appeal involves a dispute over the distribution of property in a trust created by Eva
Scroggin’s six sons for her support. Appellants Richard Doyle Scroggin, Carroll Scroggin, and
Benny Scroggin are Eva’s three surviving sons.1 Appellees Wilhelmina Scroggin, Michael
Scroggin, Ann Polston, Robert Scroggin, Beatrice Scroggin, and Alice Scroggin Chicoine are
the surviving spouses and children of Eva’s three deceased sons.2 The Conway County Circuit
Court ruled that appellees’ claims seeking to establish that they were Eva’s heirs and thus entitled
to a portion of the trust property were not barred by the statute of limitations. The court also
ruled that the appointment of Benny as successor trustee and his lease of the trust property were
1
The other appellants are Betty Scroggin, Carroll’s wife, and Gaylon Scroggin, Benny’s
wife.
2
Wilhelmina is the surviving spouse of Edwin Ray Scroggin; Beatrice and Alice are,
respectively, the surviving spouse and child of Afton Scroggin; and Michael, Ann, and Robert are
the children of James Scroggin.
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void. Appellants challenge these rulings, as well as the propriety of the circuit court’s
consideration of appellees’ motion for summary judgment and the court’s award of a one-sixth
interest in the trust property to Wilhelmina. We affirm.
The facts are undisputed. Joseph H. Scroggin died intestate on February 12, 1956,
survived by his widow Eva Scroggin and their six sons. At the time of his death, Joseph
Scroggin owned substantial property in Conway County. On May 6, 1959, the six sons
executed a document entitled “Trust Agreement” that provided that they would convey the
property in trust to Afton so that the property could be sold or mortgaged and the proceeds be
used for the benefit of their mother, Eva Scroggin. Upon her death, the proceeds from the sale
of the property were to be divided equally between the sons or their heirs. Also on May 6,
1959, Eva, her sons, and the wives of the married sons executed a deed conveying the property
to Afton as trustee.3
On December 10, 1971, Afton, as trustee, conveyed the property, reserving all right, title
and interest in 50% of all oil, gas, and minerals produced from the land. The conveyance was
also executed by Afton’s wife, Beatrice, who released her dower interest.
On August 16, 1985, Afton, as trustee, executed a document entitled “Amendment to
Trust Agreement dated May 6, 1959.” The document stated that upon Afton’s death, Benny
was to be the successor trustee, with all of the rights and duties of the original trustee.
Eva Scroggin died intestate on January 12, 1999, at the age of 102. She was preceded in
death by her son James, who died in September 1997. Edwin Ray Scroggin died on
November 3, 2000. Afton died on January 19, 2001.
3
The deed lists Benny Scroggin as single. The record does not disclose when he married.
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In September 2005, Wilhelmina executed an oil-and-gas lease for the property with
Griffith Land Services, Inc. The lease recited a consideration of $10. Wilhelmina stated in an
answer to an interrogatory that she received $2,400 from Griffith.
In October 2005, Benny, acting as successor trustee, executed a lease of the mineral
interests with Griffith. The lease recited a consideration of $10.
On March 29, 2006, appellees filed a complaint to determine heirship. The complaint,
as amended, asserted that no trust was created by the May 6, 1959, agreement; that the May 6,
1959, conveyance to Afton as trustee should be set aside; and that the court should determine
the interests of the heirs of Eva Scroggin. In the alternative, the complaint asserted that, should
the deed not be set aside, the court should determine that the sole purpose of the conveyance
to Afton as trustee was for the benefit of all of the heirs. Appellants answered the complaint,
asserting the affirmative defenses of the statute of limitations, waiver, estoppel, and that Beatrice
Scroggin had no standing because she had previously waived her dower interest in the property.
On July 2, 2007, after first obtaining leave of court, appellants filed a motion for
summary judgment, contending that appellees’ claims were barred by either the seven-year
statute of limitations found in Arkansas Code Annotated section 18-61-101 (Repl. 2003) or the
five-year statute of limitations found in Arkansas Code Annotated section 16-56-115 (Repl.
2005).
On July 11, 2007, appellees, without obtaining leave of court, filed their own motion
for summary judgment. The motion asserted that there was a continuing duty to terminate the
trust and that a trustee should be appointed to terminate the trust and distribute the proceeds.
Appellants filed a motion to strike appellees’ motion for summary judgment, arguing that
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appellees violated Arkansas Rule of Civil Procedure 56(a) in that it was filed less than forty-five
days prior to the scheduled trial date.
On July 30, 2007, the circuit court issued a letter opinion stating that it had reviewed
the motions for summary judgment and responses filed by the parties. The court found that
there was no basis for setting aside the May 6, 1959, warranty deed conveying the property in
trust to Afton. The court also found that the primary purpose of the trust was to use the
property to provide for Eva Scroggin during her lifetime and that the trust terminated upon the
death of Eva Scroggin. The court determined that the agreement was clear that, if a beneficiary
were deceased when the trust terminated, his interest would go to his heirs. The court also
found that the “Amendment to Trust” executed by Afton naming Benny as trustee and any
conveyances executed by Benny as trustee were invalid. The court issued another letter opinion
on August 27, 2007, finding that Wilhelmina was entitled to all of Edwin’s one-sixth interest
in the property. An order memorializing these findings was entered on August 31, 2007. This
appeal followed.
On appeal, appellants argue four points for reversal: (1) that the circuit court erred in
failing to dismiss all of appellees’ claims because they were barred by statutes of limitations; (2)
that the circuit court erred in considering appellees’ motion for summary judgment because it
failed to comply with the time limits in Arkansas Rule of Civil Procedure 56(a); (3) that the
circuit court erred in ruling that the amendment to trust was invalid and that any conveyances
executed in reliance on that amendment were likewise invalid; (4) the circuit court erred in
ruling that Wilhelmina was entitled to a one-sixth interest in the property.
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Questions of law are reviewed on appeal using a de novo standard. Cooper Realty Inv. v.
Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003); Wal-Mart Stores, Inc. v. P.O.
Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002).
For their first point, appellants argue that appellees’ claims should have been dismissed
as barred by the statutes of limitations. Appellants assert that appellees’ claims are barred either
by the seven-year statute of limitations found in section 18-61-101 or the five-year statute of
limitations found in section 16-56-115. Appellants contend that the applicable statute
commenced to run upon the death of Eva Scroggin.
Appellants correctly rely on Bryant v. Lemmons, 269 Ark. 5, 598 S.W.2d 79 (1980),
McBroom v. Clark, 252 Ark. 372, 380 S.W.2d 947 (1972), and James v. Helmich, 186 Ark. 1053,
57 S.W.2d 829 (1933), for the proposition that the statute of limitations can bar claims for the
recovery of a share of an estate. However, appellants ignore the critical part of the holding of
Bryant and the other cases – that the statute of limitations does not commence to run until an
issue of pecuniary consequence arises. Moreover, those cases did not involve trustees holding
property under express trusts for the benefit of certain heirs. In McDermott v. McAdams, 268 Ark.
1031, 598 S.W.2d 427 (Ark. Ct. App. 1980), this court assumed that the action was governed
by section 16-56-115 and held that, where a trust terminated of its own terms, the statute of
limitations did not begin to run in favor of the trustee where the beneficiary allowed the trust
property to remain in the possession of the trustee and there were no actions by the trustee to
indicate that the trustee was claiming adversely to the beneficiary of the trust. Medical Park
Hospital v. Bancorp South, 357 Ark. 316, 166 S.W.3d 19 (2004), and Aycock Pontiac, Inc. v.
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Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998), which were relied upon by appellants, did not
involve questions of when the statutes of limitations began to run against the trustee.
[1] Here, there is no evidence that any of the appellees made a demand for a distribution
of the trust property that would trigger the statute of limitations. The only other possible event
that would start the statute of limitations would be the execution by Wilhelmina and Benny of
the mineral leases in September and October of 2005. Appellees filed suit on March 29, 2006,
well within either statute of limitations when measured from the event of pecuniary
consequence. We affirm on this point.
[2] In their second point, appellants argue that the circuit court erred in considering
appellees’ motion for summary judgment because it was filed less than forty-five days before the
scheduled trial date. Arkansas Rule of Civil Procedure 56(a) requires that motions for summary
judgment be filed “no later than 45 days before any scheduled trial date.” Appellants filed their
own motion for summary judgment within that same forty-five day period after they first
obtained leave of court. In response, appellees filed their motion for summary judgment without
seeking leave of court. We believe that appellants’ obtaining leave and filing their own motion
for summary judgment was sufficient reason for appellees to file their counter motion within
the same forty-five day period. The point of the rule’s timetable is to give the parties adequate
time to brief and argue a potentially dispositive motion. Craft v. Ark. La. Gas Co., 8 Ark. App.
169, 649 S.W.2d 409 (1983). The timetable is not a jurisdictional bar to the consideration of
the motion. Id. at 173, 649 S.W.2d at 411. Appellants have not alleged that they have suffered
any prejudice, either in their motion to strike the motion for summary judgment or in their
brief to this court, only that appellees did not comply with the timing requirements of
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Rule 56(a). Our supreme court has held that, where the motion for summary judgment was not
timely filed, the case would not be reversed without a showing of prejudice. Keenan v. Am.
River Transp. Co., 304 Ark. 42, 799 S.W.2d 801 (1990); see also Craft, supra. The circuit court
did not err in considering appellees’ motion for summary judgment.
Appellants next argue as their third point that the circuit court erred in finding that the
document entitled “Amendment to Trust Agreement dated May 6, 1959" was invalid and that
the lease of the mineral interests executed by the successor trustee was likewise invalid.
Appellants do not address whether the appointment of Benny as successor trustee was valid. The
circuit court correctly found that Benny’s appointment was invalid.
[3] The trust agreement provided that Afton would hold title in the property for the
benefit of Eva Scroggin and, after her death, the other sons or their heirs. In 1985, Afton
attempted to modify the trust agreement to name Benny as successor trustee. In the absence of
authority conferred by the trust instrument, a trustee has no power to appoint his successor.
Jordan v. Landis, 175 So. 241 (Fla. 1937); Adams v. Highland Cemetery Co., 192 S.W. 944 (Mo.
1917); Bonney v. Granger, 356 S.E.2d 138 (S.C. Ct. App. 1987); War Mem’l Library v. Franklin
Spec. Sch. Dist., 514 S.W.2d 874 (Tenn. Ct. App. 1974). Being without the power to name a
successor trustee, Afton’s designation of Benny as successor trustee was without authority and
void. Griley v. Marion Mortgage Co., 182 So. 297 (Fla. 1937). Likewise, Benny’s leasing of the
mineral interests was void. Norris v. Scroggin, 175 Ark. 50, 297 S.W. 1022 (1927).
[4] The circuit court’s finding that Wilhelmina Scroggin was entitled to a one-sixth
interest in the mineral interest is the focus of appellants’ fourth and final point on appeal. They
argue that she waived any interest she might have in the property by executing the 1959 deed
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conveying the property in trust to Afton. We disagree. Under Arkansas Code Annotated section
28-9-214(2) (Repl. 2004), Edwin’s death without any children meant that his estate passed by
intestate succession to Wilhelmina as the surviving spouse because they were married for more
than three years. Thus, the fact that Wilhelmina had waived her right to dower in the 1959
conveyance in trust to Afton is irrelevant because she was not awarded dower in the one-sixth
interest; rather, she received Edwin’s interest as an heir of Joseph Scroggin.
Affirmed.
H ART and G RIFFEN, JJ., agree.
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